Can a Florida Court Extend Child Support Beyond Age 18?

The duty to provide support for a minor child is based upon the child's incapacity, both natural and legal, and the child's need of protection and care.  See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).

Court have recognized that a parent's legal duty to support his children ordinarily ceases at the age of majority.  Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).  A parent, however, owes a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.  See Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978).

In 1973, the Florida legislature lowered the age of majority from 21 to 18.   See Fla. Stat. § 743.07.    More recently, the Florida child support statute was modified to require all family law judgments awarding child support to include the following provisions:

1. That the child support for each child will terminate on the child’s 18th birthday unless the court finds that section 743.07(2) applies, or is otherwise agreed to by the parties; 
2. A schedule stating the amount of the monthly child support obligation for all the minor children and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to support; and 
3. The date that the reduction or termination of child support becomes effective. 

See Fla. Stat. § 61.13(1)(a).

In other words, section 61.13, Florida Statutes, requires that a payor's child support obligation automatically adjusts downward as each child reaches his or her 18th birthday.

The Florida legislature has also codified when a support obligation may be extended beyond 18 years of age. Specifically, section 743.07, Florida Statutes, states that child support may be extended beyond age 18 in two situations: (a) where a child is dependent due to mental or physical incapacity that began prior to age 18; and (b) where a child has reached the age of majority, is living at home, attending high school, and reasonably expects to graduate high school before age 19.  This language was added to the statute effective October 1, 1988.  See Penton v. Penton, 564 So. 2d 1114, 1115 (Fla. 1st DCA 1990).  Courts have recognized that these two situations are separate bases to extend child support beyond age 18.  See Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

The difficult question is under what circumstances might a mental or physical incapacity justify an extension of child support?  The statutory uses the word "dependent."  Obviously, the word dependent suggests that a parent will not owe support if the child is out working and self-supporting.  The answer is less clear where a child is moderately incapacitated and living at home.  A troubling example might be a child living at home and suffering from a mild physical disability or a moderate psychological disorder.   In Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978), Florida Fourth District Court of Appeal held that a dependent child must suffer from a "severe physical or mental incapacity."

Decisions subsequent to Kern that discuss whether an adult child is "dependent" within the meaning of section 743.07, Florida Statutes, have not used the words "suffering" or "severe" when describing the child's mental or physical incapacity.  See, e.g., Carres v. Good-Earnest, 838 So. 2d 577 (Fla. 4th DCA 2002); Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

In Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990), the court awarded child support beyond the age of majority due to the child's mental and emotional condition.  In Penton, the parties' son was a sophomore in high school at the time of the divorce. The first district concluded that the son suffered "psychological infirmities" due to the stress stemming from the divorce and was being treated by a mental health professional. The child's emotional condition constituted a dependency, which, when coupled with his economic incapacity, was sufficient to require support beyond the age of majority.

In Pitts v. Pitts, 566 So. 2d 12, 13 (Fla. 2d DCA 1990), the parties' child suffered from learning disabilities, which required him to devote most of his time to his studies.  The court found that the child could not work to support himself while he was in school due to his learning disability.  This decision is noteworthy because the child's disability appeared relatively modest.

Regardless of whether the physical or mental incapacity is "severe," under section 743.07, Florida Statutes, the incapacity must result in the child's "dependency."  Some practitioners and judges may equate "dependency" with "disability."  And, this would be a fair analogy given that the child must suffer from an incapacity that rises to the level of dependency.  Finally, the incapacity - whatever it might be - must have rendered the child dependent prior to his or her attaining the age of majority.  Any supplemental petition to extend child support must be filed before the support obligation terminates.

Life Insurance to Secure Alimony and Child Support

Clients often ask about whether the Court will require a party to procure life insurance to secure their alimony or child support obligation.  Like many legal questions, the answer is "it depends."

Courts do have the authority to order a party to provide term life insurance to secure his or her child support and alimony payments. See Fla. Stat. §§ 61.08(3), 61.13(1)(c); Sobelman v. Sobelman, 541 So. 2d 1153, 1154 (Fla. 1989). 

When determining whether life insurance is appropriate, the court will consider the need for the insurance, the cost and availability of the insurance, and the financial impact upon the obligor.  See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Plichta v. Plichta, 899 So. 2d 1283, 1287 (Fla. 2d DCA 2005). See also Byers v. Byers, 910 So. 2d 336, 346 (Fla. 4th DCA 2005). 

Florida courts have held, however, that certain "special circumstances" must be present to require a payor to purchase life insurance on his or her alimony or child support obligation. See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989). 

But, the "special circumstances" are not particularly difficult to prove.  The special circumstances may be present where the former spouse would face difficult financial circumstances if the support payments were to cease upon the death of the obligor.  The circumstances may be present where the surviving party has limited earning capacity or children to support.  See, e.g., Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla. 1st DCA 2009); Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004).

If the special circumstances are present, the Party requesting the life insurance must establish that the amount of insurance sought is available at an affordable cost.  See Massam, 993 So. 2d at 1022; Rubinstein v. Rubinstein, 866 So. 2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000); and Schere v. Schere, 645 So. 2d 21 (Fla. 3d DCA 1994). 

If you have questions about alimony or child support, please contact us to consult an experienced Tampa divorce and family law attorney.

Do I have to pay child support if I receive disability payments from the government?

One common question is whether a parent has to pay child support if the children are receiving social security payments as a result of the parent's disability.

The short answer is that social security payments do not negate the obligation to pay child support.  A disabled parent, however, does receive credit for the social security paid for the benefit of the children.  In some cases, especially where the disabled parent has no other income, these payments may actually exceed the support obligation.  The fact of the matter is that, to make any determination, you should still have a Florida family law attorney or other qualified person apply the Florida child support guidelines, properly taking into account any social security benefits paid to the children.

Under the Florida child support guidelines, social security is treated as income for purposes of calculating the parents' child support obligation.  Specifically, under section 61.30(2)(a)(8), the social security benefits are treated as income to the disabled parent.  The disabled parent, however, also receives credit for paying support equal to the amount of the social security received on behalf of the children.  In other words, the social security funds are hypothetically earned by the disabled parent and paid by that parent to the children.

This rule was established by the First District Court of Appeals in Williams v. Williams, 560 So. 2d 308 (Fla. 1st DCA 1990).  In Williams, the trial court failed to credit a disabled father for social security payments received by the mother on behalf of their three children.  The court ordered that, in addition to the disability funds the mother received directly, the father also had to pay child support out of his own disability payments.  As a result, after satisfying his child support obligations, the father had no money from which to live.  The First District found that the court erred when calculating the child support guideline amount by failing properly to account for the social security payments received by the children.

In most cases, the social security payments will exceed the disabled parent's obligation to pay support.  This is especially true where the disabled parent has no other material income.

Is Per Diem Properly Included in Income for Purposes of Calculating Florida Child Support?

As a Tampa family law attorney, I handle a large number of military divorces.  These cases present a number of unique issues.  One of the issues that often arises is how to account for military allowances and benefits from a family law perspective.  Service members frequently do not understand that, for purposes of calculating child support, income is defined much more broadly than taxable income under the Internal Revenue Code.  As any military divorce attorney will tell you, clients in the armed forces are often disappointed to learn that, while certain compensation is left off the tax return, those benefits are usually income under the Florida child support guidelines.

Not all payments and benefits received, however, constitute income.  Many military service members and civilian employees receive an allowance for travel and other expenses.  This pay is commonly referred to as a per diem allowance.  Per diem is a Latin term, which literally means "per day."  The term most often refers to the amount of money the company, government, or other organization will pay each day to cover living and travel expenses incurred in connection with work.

One of our recent military divorce clients involved a reservist that planned to spend an entire year on a security detail in the Middle East.  As part of the contract, the client was scheduled to receive a per diem for certain expenses.  An obvious issue in the client's divorce was whether the per diem would be included in income for purposes of calculating the client's Florida child support obligation.

Pursuant to section 61.30(2)(a)(13), Florida Statutes, reimbursed expenses, including per diem allowances, may be included in income for purposes of calculating child support.  These payments, however, are only included to the extent that the payment reduces the recipient's living expenses.

Very few appellate decisions help family law attorneys interpret this standard.  Florida's Fourth District Court of Appeal provided some insight in Lauro v. Lauro, 757 So. 2d 523 (Fla. 4th DCA 2000), the husband testified that the per diem he received was insufficient to cover the actual expenses he incurred when he was away from home on business.

The wife could present no evidence to the contrary but argued that, if the husband is paid per diem to cover his meals away from home, he does not have to buy groceries for dinner at home.  The court rejected her argument for two reasons.  First, the per diem at issue was a flat rate per day which did not necessarily cover the actual expenses incurred by the husband.  Second, even if the husband were reimbursed for the exact amount he spent on a meal away from home, any reduction in his living expenses at home because he did not have to buy groceries was de minimus.  Trial judges should not be reduced to having to decide how much a spouse, who was reimbursed for a meal while traveling, would have spent on a can of soup or a frozen dinner at home.

Based on this reasoning, we can expect the best divorce attorneys to argue that a per diem will not be included in income for purposes of calculating child support unless the allowance exceeds the actual expense or eliminates a material expense, such as housing, that otherwise would have been incurred.