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Subsequent Children and Child Support in Florida

Modern families are complex. People have children in and out of marriage; and, even in marriages, couples that have children often divorce, remarry, and form new families. According to a 2011 Pew Research Center report, 42 percent of all U.S. adults have some "step relationship"—almost 100 million American adults have a step-father or step-mother, a step-sibling, or step-children. Indeed, today, approximately 35 million Americans are in non-first marriages.

States' laws, including those of Florida, guide families navigating complex interpersonal situations. And one of these complexities is the question of whether and how subsequent children should affect child support payments.

Florida's Subsequent Children Statute: Upward Modifications Only

Under Florida law, a court may consider subsequent children when deciding on modification of a child support award. In these situations, an award has already been granted, the non-custodial parent is paying, and at some point, that parent has an additional child with a new partner.

The law allows the parent of the subsequent child to raise the existence of the new child in court—but generally only in the context of a request by the payee spouse to upwardly modify the award.

In these scenarios, the custodial parent of the children for whom child support is being paid might request that the payments increase. These requests are common where the paying spouse's income has increased. The paying spouse, then, may raise the issue of his or her new children—and the court "may disregard the income from secondary employment obtained in addition to the parent's primary employment if the court determines that the employment was obtained primarily to support the subsequent children."

Meaning, for example, if a father took a second job to help support his new children, that extra income will not be added to the computations surrounding whether an upward increase in child support to the children of the former relationship is appropriate.

Exceptions for Special Circumstances

As mentioned, the existence of a new child is usually irrelevant to a request for a downward modification of child support (i.e., where the paying parent asks to pay less due to the expenses of his or her new child). But Florida courts do appear to allow for exceptions in special circumstances.

In the case Gebauer v . Hurlburt, a Florida appeals court was faced with a child support-paying parent whose payments were premised on an income of $23,000 per year. The obligation, however, became nearly impossible after a subsequently born daughter was diagnosed with rheumatoid arthritis so serious that steroids and chemotherapy were necessary.

The daughter's condition deteriorated to the point where she could no longer attend school and required attention from her mother—the non-custodial parent of the former child for whom she paid support—that prevented the mother from working.

The trial court cited Florida law for the proposition that downward modifications of child support could not be granted due to the financial strains of a subsequent child. The appeals court, however, reversed, noting that the statute states that considerations of subsequent children in cases of downward modifications are only prohibited "as a general rule." Exceptional circumstances could place a family outside the general rule, which was what the appeals court decided in Gebauer.

Contact a South Florida Child Support Attorney to Help with Modification

If you need help with a modification or child support or have any other family law-related inquiries, please contact the Miami family law attorneys from Hager & Schwartz , P . A . today.

Categories: Child Support, Family Law