Florida Divorce Law:
Child Support and the children’s home
Both parents have a legal duty of support for their minor child(ren). Child Support is established by applying the parties’ respective net monthly income to Florida’s guidelines and then also factoring in health insurance, day and/ or after care incidental to employment or an educational pursuit, and any specialized needs of the child(ren). In some instances, the parents may jointly own a home. What if a parent (A) with a support obligation is unemployed or is otherwise unable to legitimately meet his/ her child support obligation AND THE PARTIES JOINTLY OWN A HOME? Can the other parent (B) retain the Home as an incident of child support? What if parent (A) can meet his/ her support obligation but parent (B) desires to maintain the Home for the child(ren)? Can parent (B) be awarded the Home regardless of the child support being received?
Parent “A” and Parent “B” are married and have two children, ages 7 and 10. The parties purchased a home when their youngest child was born. The children attend school nearby and they have playmates on the street. The mortgage payment with taxes and insurance escrowed is approximately $ 1,300 per month. The Home has a fair market value of approximately $ 100,000, and $ 90,000 principal remains owed under the Note. The marriage between A and B goes south, and “B” moves out. “B” seeks a divorce and as part of his/ her Petition, requests that the Home be sold. “A” wants to keep the Home at least until the youngest child turns 14 and enters High School. Again, “A” is able to afford the mortgage, utilities, etc. especially if “A” receives child support from “B” to meet the children’s share of the household expenses.
Can “A” successfully argue that he/ she should be awarded the Home for him/ her and the children thereby depriving “B” of his/ her marital interest in the Home?
Generally, marital assets and liabilities are divided equally (what is called “equitable distribution”). However, an unequal distribution of the parties’ Home may be awarded to a spouse if to do so is in the best interests of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court. Section 61.075(1)(h), Florida Statutes.
In this scenario, I believe parent “A” can successfully argue that he/ she should be awarded the Home on the grounds that the best interests of the children would be served and further that same is economically feasible. The Children have resided in the home since the birth of the youngest child and this is the only home they
know. Staying in the home would provide continuity in both children’s academics and also with peer relationships. The clincher is that “A” can afford to keep the home and maintain same. “B” would have a difficult time arguing that he needs his one-half share of the equity since that would amount to $ 5,000 at best. If the Home had greater equity and was otherwise the only significant asset of the parties, then “B” may have a better argument to sell the home or be bought out from his equity as part of a re-finance. But, under the scenario, this is not the case.
Let’s change the scenario and assume that “B’s” income is not sufficient to meet the basic and health-related needs of the children? Basically put, “B” is barely able to support himself and then pay the guideline amount of support to “A”. However, both “A” and the children need the support for food, gas for the car, utilities, etc. (necessities of life). In accordance with Section 61.30(13), Florida
Statutes, the Court may consider awarding the Home to “A” if “B” has a lack of
recurring income sufficient to meet the needs of the children. The award of the “B’s” interest in the Home to “A” is in place of B’s child support either wholly or partially.
Child support considerations are not to be taken lightly. Some parents may consider running the guidelines a perfunctory matter when in fact more is involved. What is “income”? What are allowable deductions? Can the court impute income to you for purposes of calculating your support obligation and, if so, under what circumstances and in what amount? What impact does time sharing have on one’s support obligation? Can one lose his driver’s license or be
incarcerated for not paying support? The list of questions goes on and on.
If you have any questions or comments, please feel free to post a response or give me a call at 727-895-5858. I do provide for a free initial consultation.