Dear thunder041-ga;
Thank you for allowing me an opportunity to answer your interesting
question. No doubt you?ve read the disclaimer at the bottom of the
page and you know going into this deal that we are not here to provide
legal advise, merely comments and answers pertaining to our own
accumulated knowledge and experience as well as published facts where
possible.
That said, I will try to address your questions as best I can. You
must understand of course that each court differs, judges often do
what they see fit according to the needs of each situation, and since
judges are only human even personalities sometimes come into play
(i.e. judge got up on the wrong side of the bed this morning) that can
affect what actually and ultimately happens in your situation:
1) If my wife and I agree on a different amount of child support than
that shown in the statutes, can the judge accept a lower amount if
both of us agree on the amount?
Florida Statute (s.61.30) REQUIRES that the child support guidelines
be used in all new child support cases. This is applied using this
form called The CSE Worksheet:
http://www.myflorida.com/dor/childsupport/pdf/poz8.pdf
While the state is required to apply for the formula to all new cases,
the state offers this exception disclaimer on it?s FLORIDA DEPARTMENT
OF REVENUE web site:
?The court may deviate from the guidelines if there is a written
finding in the court record that the guidelines would be inappropriate
in that particular case. The finding must include the amount of
support that would have been required under the guidelines and reason
why the order varies.?
STATE OF FLORIDA DEPARTMENT OF REVENUE
http://www.myflorida.com/dor/childsupport/guidlines.html
By the states own admission, clearly the court CAN, at its discretion,
deviate from the support payment formula. Whether it WILL or not
appears (considering the aforementioned statement) to be entirely up
to the judge presiding over your case. The statute concurs, saying in
part:
?The trier of fact may order payment of child support which varies,
plus or minus 5 percent, from the guideline amount, after considering
all relevant factors, including the needs of the child or children,
age, station in life, standard of living, and the financial status and
ability of each parent. The trier of fact may order payment of child
support in an amount which varies more than 5 percent from such
guideline amount only upon a written finding explaining why ordering
payment of such guideline amount would be unjust or inappropriate.
Notwithstanding the variance limitations of this section, the trier of
fact shall order payment of child support which varies from the
guideline amount as provided in paragraph (11)(b) whenever any of the
children are required by court order or mediation agreement to spend a
substantial amount of time with the primary and secondary residential
parents. This requirement applies to any living arrangement, whether
temporary or permanent.?
So you see, there are many factors which can qualify as circumstances
warranting modifications other than those recommended by the child
support guidelines. In my personal experience in my state?s civil and
chancery (family) courts (for what that might be worth to you), when
two parties agree it is often to their mutual benefit.
You question then, ?can the judge accept a lower amount if both of us
agree on the amount? the answer is unquestionably YES. How much lower
than the published amount he or she is likely to go can only be
determined using a crystal ball ? and you know how reliable those are.
2) If one of us buys, for example, an ATV that is located on our
property, that we both ride and use, and was purchased by one of us
(my wife) from non-comingled funds, do items like that seem to you to
be marital assets?
Florida is an EQUITIABLE DISTRIBUTION STATE. In other words, courts
are not a respecter of gender or fault (and other factors perhaps)
where the determination of marital property and liabilities are
concerned.
According to Florida divorce lawyer Brian Monk J.D., M. Ed./Ed.S of
Hoyt & Bryan LLC and also Wilson, Wilson & Long, P.A of Tallahassee,
the general rules concerning the equitable distribution of marital
assets, property acquired during the marriage, are, in part:
?Property acquired separately prior to the marriage and not commingled
with marital assets will remain the property of the spouse who brought
those assets into the marriage??
Brian Monk J.D., M. Ed./Ed.S
http://www.brianmonk.com/MA.htm
Wilson, Wilson & Long, P.A
EQUITABLE DISTRIBUTION OF MARITAL ASSETS
http://www.floridafamilylaw.com/equit.htm
The bottom line is that if the two of you cannot mutually agree upon
what is and is not defined as marital assets the court will surely
define it for you; especially if the issue is a point of one of
disagreement.
3) Lastly, if my wife and I agree to divide our son's time equally -
50%/50%, so to speak - will the court accept that arrangement?
If you are referring to JOINT CUSTODY or SHARED CUSTODY as it is
sometimes referred, the answer is ?typically? YES, courts do take
into consideration a separating couple?s mutual desire when making
custodial and visitation decisions. Keep in mind however that the
court will do what is in the best interest of THE CHILD and not what
is in the best interests of either of YOU or THE FAMILY. I said
?typically? because your situation may differ from other cases ? I
have no way of knowing that. In addition, your statement ?50%/50%, so
to speak? leads one to believe that you already know that joint
custody/shared custody does not always mean equal time or equal
visitation.
Title VI CIVIL PRACTICE AND PROCEDURE
Chapter 61 DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY
Chapter CHAPTER 61
DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY PART I
GENERAL PROVISIONS (ss. 61.001-61.45) PART II
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (ss. 61.501-61.542)
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0061/titl0061.htm&StatuteYear=2005&Title=%2D%3E2005%2D%3EChapter%2061
I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise, I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad ? Google Answers Researcher
OTHER INFORMATION SOURCES
Title VI CIVIL PRACTICE AND PROCEDURE
Chapter 61 DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY
61.30 Child support guidelines; retroactive child support.--
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0061/SEC30.HTM&Title=->2000->Ch0061->Section%2030
FLORIDA CHILD SUPPORT CALCULATOR
http://www.alllaw.com/calculators/Childsupport/florida/
SEARCH STRATEGY
SEARCH ENGINES USED:
Google ://www.google.com
SEARCH TERMS USED:
FLORIDA
DIVORCE
SUPPORT
FORMULA
CUSTODY
VISITATION
EQUITABLE DISTRIBUTION
MARITAL ASSETS
JOINT
SHARED |
Request for Answer Clarification by
thunder041-ga
on
13 Sep 2005 04:25 PDT
Thanks, but I am not sure that you answered my question #2 and I need
some clarification on #1...
#1: If my wife and I can agree that no child support is required, and
instead my wife and I decide or come up with an alternative financial
settlement, will the court accept that? In other words, am I REQUIRED
to pay child support even if we agree on and then propose to the judge
a different financial settlement? Or am I REQUIRED to pay child
support no matter what? What if, for example, instead of her giving
me $200,000 for the house and me pay her $1300 per month, could she
give me $100,000 for the house and me pay her $650 per month? Or am I
only REQUIRED to pay child support if we can't agree on something
different?
#2: I am asking about items that she purchased during our marriage,
and are located on our property, and that we both currently use --
like an ATV, or even a horse. If she bought those items from
non-co-mingled funds but during the marriage, and we both used,
maintained, and enjoyed the items, are those marital assets or
non-marital assets? Does the fact that she purchased them from
non-co-mingled funds matter if the items were purchased during the
marriage, were located on our property, and used by both of us?
Thanks and looking forward to the clarification.
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Clarification of Answer by
tutuzdad-ga
on
13 Sep 2005 07:46 PDT
I?m afraid you might be mixing apples and oranges. Your original
question concerned SUPPORT obligations and my answer addressed the
state?s guidelines, formula, and exceptions to the rule as provided by
state statute.
In your follow up you?ve included COMPENSATION for, and DIVISION of
MARITAL ASSETS, which is a different issue.
>>>If my wife and I can agree that no child support is required, and
instead my wife and I decide or come up with an alternative financial
settlement, will the court accept that?
CLARIFICATION: Referring again to the guidelines I mentioned the court
may, at its discretion, alter the guidelines to suit the
circumstances:
?The court may deviate from the guidelines if there is a written
finding in the court record that the guidelines would be inappropriate
in that particular case. The finding must include the amount of
support that would have been required under the guidelines and reason
why the order varies.?
STATE OF FLORIDA DEPARTMENT OF REVENUE
http://www.myflorida.com/dor/childsupport/guidlines.html
. . . . . . . . . . . .
>>> In other words, am I REQUIRED to pay child support even if we
agree on and then propose to the judge a different financial
settlement? Or am I REQUIRED to pay child support no matter what?
Not necessarily. As you will see if you closely examine the state?s
statute on the matter:
?(11)(a) The court may adjust the minimum child support award, or
either or both parents' share of the minimum child support award,
based upon the following considerations:? (then read the circumstances
under which the terms can me altered)
?Whenever a particular shared parental arrangement provides that each
child spend a substantial amount of time with each parent, the court
shall adjust any award of child support, as follows:? (then read the
circumstances under which the terms can me altered)
Title VI CIVIL PRACTICE AND PROCEDURE
Chapter 61 DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY
61.30 Child support guidelines; retroactive child support.--
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0061/SEC30.HTM&Title=->2000->Ch0061->Section%2030
See what I mean? Clearly a judge can alter the guidelines commensurate
with each set of circumstances.
. . . . . . . . . . . .
>>>?What if, for example, instead of her giving me $200,000 for the
house and me pay her $1300 per month, could she give me $100,000 for
the house and me pay her $650 per month? Or am I only REQUIRED to pay
child support if we can't agree on something different??
Since this involves the equitable distribution of marital assets or
the compensation or division thereof, it would be difficult to say how
this might fact into the support issue (if it would factor in at all).
Speculative questions such as this would need to be addressed by an
attorney. I should point out however that your compensation of your
spouse for her interests in the family home may be viewed differently
than the issue of support - which is intended solely for the benefit
of the child. In other words, you are mixing the benefit of the spouse
(equitable distribution) with the benefit of the child (child
support). These are two separate things and may very well be viewed
that way by the court. If the court does view them as separate issues
it may settle each matter separately without respect to the other.
Again, this calls for speculation that would best come from an
attorney.
. . . . . . . . . . . .
>>> I am asking about items that she purchased during our marriage,
and are located on our property, and that we both currently use --
like an ATV, or even a horse. If she bought those items from
non-co-mingled funds but during the marriage, and we both used,
maintained, and enjoyed the items, are those marital assets or
non-marital assets? Does the fact that she purchased them from
non-co-mingled funds matter if the items were purchased during the
marriage, were located on our property, and used by both of us?
According to Title VI (61.075), for the purposes of dissolution of
marriage, ?marital assets and liabilities are defined as:
?Assets acquired and liabilities incurred during the marriage,
individually by either spouse or jointly by them?
Title VI
CIVIL PRACTICE AND PROCEDURE Chapter 61
DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY
61.075 Equitable distribution of marital assets and liabilities.
http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=&URL=CH0061/Sec075.HTM
Note the inclusion of the phrase, ??INDIVIDUALLY BY EITHER SPOUSE OR
JOINTLY BY THEM?
In addition this same statute says:
?The cut-off date for determining assets and liabilities to be
identified or classified as marital assets and liabilities is THE
EARLIEST OF THE DATE THE PARTIES ENTER INTO A VALID SEPARATION
AGREEMENT, such other date as may be expressly established by such
agreement, or the date of the filing of a petition for dissolution of
marriage.?
(Capitalization is mind for emphasis sake)
I think you may find this interesting as well:
?(b) "Nonmarital assets and liabilities" include:
3. All income derived from nonmarital assets during the marriage
UNLESS the income was treated, used, or relied upon by the parties as
a marital asset?
My unlicensed interpretation of the wording in this portion of the
statute is?..If your ex had an account containing non-comingled funds
that you both relied upon, treated and used as a marital asset (it was
understood to be there for family use, entertainment, emergencies,
etc), even if the funds were in an account bearing only her name, and
she made purchases from that account that resulted in the acquisition
of mutually used assets, it could (in my opinion) be argued that the
property acquired from the use of this mutually ?treated, used and
relied upon? money is by extension a jointly owned marital asset.
Now, before everyone flips out that I am practicing law in this forum
let me make the disclaimer clear. I am not providing legal advice or
interpretation of the law other than what I derive from published
sources, to wit?.
Title VI
CIVIL PRACTICE AND PROCEDURE Chapter 61
DISSOLUTION OF MARRIAGE; SUPPORT; CUSTODY
61.075 Equitable distribution of marital assets and liabilities.
http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=&URL=CH0061/Sec075.HTM
?.and my own unlicensed opinion. While I believe I am right
(obviously, or I wouldn?t have posted it) I should (and must) for
disclaimer sake recommend you consult an attorney. You may of course
do as you wish.
I hope this clarifies. look forward to your rating and final comments.
Regards;
Tutuzdad-ga
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