Child Support Myths and Truths: Exploring the Assumptions Underlying Florida’s Statutory Guidelines
Myths which are believed in, tend to become true.”1 In exploring the mythology which has developed since Florida’s child support guidelines were adopted in 1987, it is apparent that George Orwell’s observation rings true. In an effort to foster a better understanding and avoid misapplication of the guidelines, this article is intended to expose the myths that have arisen and to identify the economic and political assumptions upon which the guidelines were predicated.
Myth: The guideline table contained in F.S. §61.30(6) was generated based upon an economic analysis of expenditures in divorced families living in Florida.
Truth: The statutory table and amounts were initially developed by the Office of Child Support Enforcement (OCSE) within the U.S. Department of Health and Human Resources and were premised upon the work of Thomas J. Espenshade, who was a senior research assistant in the Women and Family Policy Program at the Urban Institute.2 Espenshade analyzed the 1972–73 Consumer Expenditures Survey (CES), which was administered by the U.S. Bureau of Labor Statistics and the Bureau of the Census, in order to develop estimates of child rearing costs. The survey, which was the primary basis for Espenshade’s estimates, was a nationwide sample of intact urban and rural families who were asked to report on their total expenditures for a period of 15 months.3 No divorced families were surveyed.4 Espenshade’s estimates were also based upon two-parent households in which the wife was employed at least part time.
The failure to consider the potentially increased costs of child rearing in the event of a divorce in formulating the guidelines was rationalized by the OCSE in two ways. First, there was “no credible or current data for single-parent households” and, second, the data concerning intact households was believed to generate higher support levels than in a “single parent household,” because the parties to a divorce usually experience an overall reduction in their standard of living following their divorce.5 These justifications seem unsubstantiated since the data in Espenshade’s research was already approximately 15 years old at the time the guidelines tables were initially formulated and no attempt was made to determine the actual amount of money spent by divorced parents on their children. Thus, it remains unclear whether the OCSE’s election to use figures for children of intact families was appropriate, especially given the common lament of divorced parents that two households cannot live as cheaply as one.
Myth: Florida’s child support guidelines are federally mandated and a judge cannot deviate from the guidelines.
Truth: The federal government requires each state, as a condition for having its state welfare plan approved, to establish guidelines for child support award amounts. There must be a rebuttable presumption that the award, which results from application of the guidelines, is the correct amount of support to be awarded, unless application of the guidelines would be unjust or inappropriate in a particular case.6 The rationale underlying this mandate is to ensure the adequacy of child support awards and consistent use of the guidelines. “Although guidelines need not be binding, properly developed guidelines can have a substantial benefit if parents, attorneys and agencies know they will be applied in each case, except when a court determines exceptional circumstances warrant deviation.”7
In regard to the ability of courts to deviate from the guidelines, proponents recommended that any deviations must be supported by findings “to protect the integrity of the guidelines and facilitate equitable determination in subsequent modifications.”8 Despite the federal intent that deviations are made only in “exceptional circumstances,” Florida law has evolved to afford judges broad discretion to deviate from the presumptive amount. The Florida Supreme Court in Finley v. Scott, 707 So. 2d 1112 (Fla. 1998), acknowledged not only that the guideline amount was “clearly rebuttable,” but also that the actual expenditure for the needs of the child is evidence the court should weigh in determining whether to vary from the guideline formula. “Decisions as to whether and how much to vary child support awards from the amounts dictated by the statutory guidelines formula are fact-intensive decisions that depend upon the record in each case.”
F.S. §61.30(11) contains a list of factors which the court may consider in deviating from the guideline amount, ranging from the age of the child and extraordinary needs to the impact of the federal tax dependency exemption and seasonal variations in a parent’s pay. Recently, judicial discretion to deviate from the support guidelines was further expanded by the legislature to require deviation in circumstances in which a child spends a “substantial amount of time” with each parent. Effective October 1, 1999, the court shall adjust the minimum support amount based on the following seven factors:
(1) the amount of time each child will spend with each parent under the shared parental arrangement,
(2) the needs of the child,
(3) the direct and indirect financial expenses for each child. For purposes of this subparagraph, “direct financial expenses” means any expenses which are incurred directly or on behalf of a child or in which a child directly participates including, but not limited to, expenses relating to what a child eats or wears or schooling and extracurricular activities, and “indirect financial expenses” means any household expenses from which a child indirectly benefits, including, but not limited to, expenses relating to a mortgage, rent, utilities, automobile, and automobile insurance,
(4) the comparative income of each parent, considering all relevant factors, as provided in §61.30(2)(a),
(5) the station in life of each parent and each child,
(6) the standard of living experienced by the entire family during the marriage; and
(7) the financial status and ability of each parent.
F.S. §61.30(11)(b) (1999).
The new language does not specify whether deviation may only be downward for the paying parent, nor does it prohibit courts from increasing the amounts paid by either parent due to the increased financial expenses in both residences. Eliminated, however, from the statute is discretionary language, which caused courts to consider the savings impact on the primary residential parent as a basis for downward deviation or the refusal of the secondary residential parent to spend time with the children as a basis for an upward award. Also eliminated is language calling for deviation not to exceed 50 percent of the amount awarded when the secondary residential parent spends more than 28 consecutive days with a child. Given the underlying assumptions which are explored herein, the statutory amendment requiring a deviation appears to be a dramatic departure from the federal intent which ensures children will receive consistent predictable amounts.
Myth: Unless a child spends more than one third of his or her time with the secondary residential parent, there is no basis for a deviation from the guidelines due to significant timesharing.
Truth: The legislature has opened the door to allocate child support according to the proportion of time spent by each child with each parent in passing the new requirement for deviation in cases involving “substantial” parenting time. Webster defines substantial as “being that specified to a large degree.”9 However, there is no clear definition of how many days, hours, or weeks constitutes “significant” or “substantial” time. The studies which served as the economic basis for the statutory guidelines were conducted among intact families and did not address the impact of additional costs which result from raising a child when a divorce has occurred.10 Consequently, the data underlying the statutory tables does not consider the costs or savings of significant shared parenting arrangements.
When the OCSE prepared its report in support of the guidelines,11 the additional costs associated with shared parenting were discussed, but no direct adjustment was made to the income shares method to compensate for such expenses. In fact, the OCSE report structured the proposed child support guidelines for “traditional custody arrangements” which were defined at that time as an arrangement in which “one parent (usually the mother) has sole legal and physical custody of the child” and the other parent has “limited visitation rights,” which were generally two days, every other weekend. As defined in the OCSE report, “traditional” visitation of two days every other weekend would constitute 14.2 percent of each year. No adjustment to the guidelines is supposed to be made for “traditional visitation” because the incidental expenditures were purportedly factored into the guidelines, although no explanation is provided detailing how this is accomplished. The OCSE study also indicated that an adjustment for shared physical custody is made “when physical custody exceeds a ‘traditional level’ of visitation.” In enacting the guidelines, various states have chosen to set thresholds ranging from 20 percent to 33 percent as the minimum amount of time required before a deviation is considered.12 Yet nowhere within the report or in Florida’s legislative history is there any specific percentage figure ascribed to “traditional” visitation.
The failure to define a threshold visitation amount in the guideline statute is problematic in light of the new legislation. The problem is compounded by the lack of any formulaic guidance on how to deviate from guidelines in circumstances in which “significant” time is shared between both parents. The new statutory language of F.S. §61.30(11) gives some indication as to the economic circumstances which the court is to consider, but continues to leave the question of a time frame unanswered.
In reviewing Florida statutory and case law, the term “substantial” change in circumstances is widely used as the burden of proof for modifying primary residence and support obligations. This verbiage gives little assistance, however, in measuring “substantial” in terms of timesharing.
Prior cases do not provide a litmus test for a judicial benchmark either. In Lickle v. Lickle, 606 So. 2d 391 (Fla. 4th DCA 1992), when both parents earned substantial incomes and the children resided with the father 40 percent of the time, it was an abuse of discretion to order the father to be totally responsible for the children’s support. In Stewmon v. Stewmon, 654 So. 2d 259 (Fla. 2d DCA 1995), in which the record disclosed that the former husband anticipated a visitation schedule of two hours on two evenings a week and three weekends per month, and it was not known whether the visitation schedule was followed, the court’s review of the record did not appear to support a conclusion that this “substantial” amount of time with the former husband resulted in a reduction of the former wife’s expenditures which would justify a reduction in child support from a presumptive amount exceeding $1000 per month to $350 per month. In Clarke v. Clarke, 619 So. 2d 1046 (Fla. 5th DCA 1993), the father’s substantial visitation with the children was found by the court to border on split custody. Because of the parties’ great disparity in incomes, the “noncustodial” father was entitled to support from the custodial mother. In Hardy v. Hardy, 659 So. 2d 1246 (Fla. 1st DCA 1995), instead of beginning with the guideline amount and adjusting it accordingly, the trial court expressed an intent to equalize the net incomes of the parents so that equal incomes would be available to each household for the support of the children of an equal timesharing arrangement. The appellate court, however, would not allow the trial court to disregard the guidelines amount to create a new formula to determine support.
Myth: If both parents have equal time with the children, no support should be paid.
Truth: A 50/50 split in custody does not eliminate the requirements for child support unless two conditions are satisfied: 1) the parents have equal incomes, and 2) the parents share the costs of all direct expenditures (including clothing, medical care, child care, and educational costs) for the child(ren) equally.13 While there is no statutory formula to determine how to allocate costs in a split custody, Florida case law provides a deviation in the guideline amount is appropriate.
The objective of giving a deviation in support for split custody and substantial parenting cases is to credit each parent for the appropriate share of direct expenditures made on behalf of each child.14 In reviewing current case law, it is apparent there are two models which are used in Florida, each representing a different school of thought.
Under the approach taken by the dissent in Simpson v. Simpson, 680 So. 2d 1085 (Fla. 4th DCA 1996), which is also the most common approach used, each parent theoretically owes support to the other based on the proportion of time the child spends in each household. The support amounts calculated are then offset or “cross credited,” with the parent owing the higher amount paying a net obligation.15 This methodology suggests the guidelines amount reflects the minimum sum required to meet the needs of a child in the household. However, it ignores the impact of maintaining expenses in two households, and that the guidelines chart was based on statistics relating to an “intact” family.
A second common approach was used in Winters v. Kasteralis, 623 So. 2d 613 (Fla. 2d DCA 1993). The trial court in a split custody case was instructed to divide the total child support obligation by the number of children living in each household, to “give each child his or her share [of the guideline amount] while assuring that each parent pays no more than the proper percentage of the total support.” This method assumes the guideline support amount contained in F.S. §61.30(6) reflects the maximum amount a parent should pay.
The method employed in Winters also may be used in the substantial parenting context. After determining the guideline amount based on the parents’ combined incomes, the threshold of time each parent enjoys with the child(ren) is determined in addition to the parent’s percentage of support based his or her respective income share. If a parent is obligated to pay 36 percent of the total support obligation, but has the child 40 percent of the time, that parent should receive four percent of the guideline support amount from the other parent. Some states limit the use of this method to cases involving the “traditional visitation” threshold.
Another method used in North Carolina, but not yet discussed in Florida law, involves a variation of Winters, in which a multiplier is used to increase the statutory amount of support that is divided between the parents. This “grossing up” of the basic support amount may be more reflective of the duplicative costs typically incurred in divorced households. Even the OCSE report acknowledges that total child rearing costs in shared custody situations may increase by as much as 50 percent. The most commonly duplicated expenses in shared custody cases include housing, household goods, utilities, and transportation. Espenshade estimates that these expenses total approximately 42.1 percent of the total amount of child support.16
Whether the new statutory language requiring deviation from the “correct support amount” as the rule and not the exception takes Florida out of compliance with the federal mandate in cases involving “substantial parenting” is yet to be determined. The concept of using need and ability to pay, however, is a time-tested concept acknowledged even amid the use of mandated guidelines.17 This suggests, of course, that legislative initiative is needed to address these concerns and to establish a consistent and predictable method.
Myth: The needs of children between the ages 12 and 17 are adequately addressed by the child support guidelines.
Truth: The study upon which the guidelines table was developed gauged the annual cost of raising a child between the ages of 12 and 17 at approximately 23 percent greater than the cost of raising a child between zero and 11 years of age.18 The guidelines table that was developed and enacted by the Florida Legislature is not age-specific and is based upon average expenditures for children of all ages. Hence, it would appear that child support for young children is approximately 11.5 percent higher than it should be while child support for older children is 11.5 percent lower than it should be. Given the method of averaging expenses used in the guidelines, the legislature acknowledged this inequity by providing for a discretionary deviation contained in §61.30(11)(a)(5), which allows for an adjustment based on “the age of the child, taking into account the greater needs of older children.” The OCSE’s choice not to base child support on the ages of the children involved was purportedly justified on the assertion that an attempt to compensate for the increased child-rearing costs for older children would significantly increase the complexity of the guidelines and would yield no “theoretical net effect” on child support received.19
Myth: The Florida child support guidelines are based upon the most current available economic research available.
Truth: The guidelines in use today are based upon statistics gathered in the 1970s and research conducted in the early 1980s. However, the table was updated in 1993 to reflect the 1992 Consumer Price Index. In an effort to comply with the Federal Family Support Act of 1988, which requires a periodic review of state child support guidelines, the Florida Legislature commissioned an economic study of the guidelines, which was completed by Policy Studies, Inc., in 1997. The report, prepared by Robert Williams, who drafted the original report for the OCSE, recommended that the economic table be updated in light of more current economic data and research. In an effort to facilitate the adoption of an updated table, the report contained a complete revised economic table based upon the research of Dr. David Betson of the University of Notre Dame. The revised table was designed to address problems such as the payor’s self-support reserve and the amount of support when income is more than $10,000 per month. The legislature did not adopt the recommended revisions,20 and as a result, the statutory table continues to be outdated.
Myth: The guideline table is based on percentages of a parent’s income and child support can be roughly computed using 22 percent for one child, 32 percent for two children, and 41 percent for three children.
Truth: Florida’s support guidelines are based on an income shares model, which considers the income of both parents. The use of a percentage is contrary to the research of Espenshade and the OCSE study from which the Florida guidelines were developed.
While the application of a percentage will provide a reasonably close estimate of child support in cases in which a payor’s monthly net income falls in the middle range of the guidelines chart—provided the parties’ incomes are not widely divergent—if there is a wide disparity in the income of the parties or if the combined income of the parents falls at the high or low segments of the table, the use of a percentage will provide an inaccurate result21 or one which has no bearing on need or ability to pay. In cases in which a parent has very low income, application of a percentage may result in an award of child support that leaves the payor with little or no reserve for self-support. Likewise, when a parent earns a significant income, child support may be established in an amount which far surpasses the child’s need.22
Myth: Child support guidelines presume that providing a home is a parent’s single largest expenditure on behalf of a child.
Truth: As incongruous as it may seem, transportation and food constitute the two largest categories of expenditures for children according to Espenshade. These two categories each comprise 18 percent of the average child’s total budget, while expenditures for shelter amount to 9.1 percent of the total amount spent annually on a child.23
Myth: Only one parent pays child support.
Truth: Child support is a right that belongs to the child. Imami v. Imami, 584 So. 2d 596 (Fla. 1st DCA 1991). “It is not a requirement imposed by one parent on the other, rather it is a dual obligation imposed on the parents by the state.” Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979). F.S. §61.13 states “the court may at any time order either or both parents who owe a duty of support to pay support in accordance with the guidelines.” This and other statutory language permits grandparents and foster parents who care for a child to receive support from one or both parents.
Myth: Child support can be modified when a parent remarries and has a second child.
Truth: Florida’s support guidelines only permit a deduction from gross income for court-ordered support for other children which is actually paid, F.S. §61.30(3)(f), Green v. Green, 672 So. 2d 49 (Fla. 4th DCA 1996), and specifically provides in §61.30(12), “the existence of subsequent children should not as a general rule be considered by the court as a basis for disregarding the amount provided in the guidelines.” The approach adopted by the Florida Legislature is called the “first mortgage” approach, and gives priority to children born first, particularly those covered under preexisting support obligations.24 F.S. §61.30(12) currently limits a parent from raising the issue of subsequent children to proceedings for upward modification of support and, if raised, the income of the parent’s new spouse must also be considered. The statute prohibits the existence of subsequent child as the basis for decreasing an existing award. In Hutslar v. Lappin, 652 So. 2d 432 (Fla. 1st DCA 1995), however, the First District court suggests while the obligation to support children not subject to any prior support action is limited with respect to the deductions allowable from gross income, it is a matter that can be considered under §61.30(11)(k).
Myth: When one of several children emancipates, child support is automatically reduced per capita.
Truth: Support is not automatically reduced, by half or per capita when a child emancipates, unless there is language in the order or judgment specifically providing for the reduction. See Donsky-Levine v. Levine, 658 So. 2d 1023 (Fla. 4th DCA 1995). It is also good practice to include language in a judgment or support order indicating whether there will be a specified reduction in support upon the termination of the obligation to support each child in cases where more than one child is being supported, or whether the amount should be revisited upon emancipation.
Given the active involvement of the federal government in the development, establishment, and perpetuation of the child support guidelines as a mechanism to bring uniformity and fairness to every award of child support, it is ironic to note the widespread mythology that has developed as well as the latitude exercised by the Florida courts and legislature in permitting deviations from the statutory tables. Perhaps it is time the assumptions and economics be revisited so that the amounts awarded on behalf of children from their parents reflect the realities of living in divorced and blended families today. q
1 George Orwell, The English People (1944), repr. in 3 The Collected Essays, Journalism and Letters of George Orwell (Sonia Orwell and Ian Angus eds. 1968).
2 Robert G. Williams, Development of Guidelines for Child Support Orders: Advisory Panel Recommendations and Final Report (U.S. Department of Health and Human Services, Office of Child Support Enforcement, 1987) at II-17-20.
3 Espenshade considered data on only 8,547 statistically relevant family units in formulating his expenditure estimates. Thomas J. Espenshade, Investing in Children, New Estimates of Parental Expenditures 19 (1984).
4 Williams, supra note 2, at II-iii and 36–38.
6 42 U.S.C. 667, §467.
7 Williams, supra note 2, at I-6, I-10.
9 Webster’s Seventh New Collegiate Dictionary (G&C Merriam Co. 1976).
10 Williams, supra note 2, at II-iii and 36–38.
11 Williams, supra note 2.
12 Consider the following thresholds: Delaware 20 percent, Colorado 25 percent, Wisconsin 30 percent, and North Carolina 33 percent.
13 Williams, supra note 2, at II-58.
14 Id. at II-57.
15 Id. This approach is used in the Colorado Child Support Guidelines, the Delaware Melson Formula, and the Washington Uniform Child Support Guidelines.
16 Housing = 9.1 percent; household goods = 10.3 percent; utilities = 4.7 percent; transportation = 18 percent.
17 In Moss v. Moss, 636 So. 2d 164 (Fla. 4th D.C.A. 1994), the trial court was directed to consider the financial needs of the children, but also was given discretion to deviate from the statutory guidelines after considering the parent’s overall financial circumstances and impose an obligation on the payor that was within his ability to pay.
18 Williams, supra note 2, at II-36, 48–49; Espenshade, supra note 3, at 30–31.
19 Id. at II-49.
20 Robert G. Williams, David A. Price, Jane Venohr, Policy Studies, Inc., Economic Basis for Updated Child Support Schedule (Joint Legislative Management Committee 1997).
21 The algebraic formula for the income shares method of computing child support is (C+N) P x N/(C + N) =S; C=custodial parent’s income; N=noncustodial parent’s income; P=percentage used to determine support; and S=support amount. M. Takas, The Treatment of Multiple Family Cases and State Child Support Guidelines n.20 (U.S. Department of Health and Human Services, Office of Child Support Enforcement 1991).
22 For example, in a case where a party has one child and $650 net income per month the child support based upon Fla. Stat. §61.30 (1997) should be $74 (assuming the custodial parent has no income). However, by using 22 percent for one child to determine support the amount would be almost double, $143. On the opposite end of the spectrum, in a case where a party has one child and $7,000 in net monthly income, the child support should be $1,212 (assuming the custodial parent has no income). Yet, the application of a percentage yields a support figure, which is 27 percent higher, $1,540.
23 Keep in mind, however, these statistics are based on an intact family unit. See infra.
24 Williams, supra note 2, at II-53.
Thomas J. Sasser is a partner in the law firm of Sasser, Cestero & Sasser, P.A., in West Palm Beach. He practices exclusively in the area of family law and related appeals. Mr. Sasser serves the Family Law Section as a member of the Executive Council, Commentator Committee (co-chair), and CLE Committee, and is past chair of the Support Issues Committee.
Rana Holz is a partner in the law firm of Rubinstein & Holz, P.A., in Ft. Myers. She has practiced exclusively in the area of family law and related appeals since graduating from Stetson University College of Law in 1991. Ms. Holz serves on the Family Law Section Executive Council, Commentator Committee, Support Issues Committee, and Legislative Committee.
This column is submitted on behalf of the Family Law Section, Ky Koch, chair, and Mark Sessums, editor.