Pursuant to Section 61.30(11) of the Florida Statutes, a Court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon the following deviation factors:

  1. Extraordinary medical, psychological, educational, or dental expenses.
  2. Independent income of the child, not to include moneys received by a child from supplemental security income.
  3. The payment of support for a parent which has been regularly paid and for which there is a demonstrated need.
  4. Seasonal variations in one or both parents incomes or expenses.
  5. The age of the child, taking into account the greater needs of older children.
  6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the presumptive amount established by the guidelines.
  7. Total available assets of the obligee, obligor, and the child.
  8. The impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.
  9. An application of the child support guidelines schedule that requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
  10. The particular parenting plan, such as where the child spends a significant amount of time, but less than 20 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
  • A “Parenting plan” means a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child.
  • The parenting plan must be:
    • Developed and agreed to by the parents and approved by a court; or
    • Established by the court, with or without the use of a court-ordered parenting plan recommendation, if the parents cannot agree to a plan or the parents agreed to a plan that is not approved by the court.

Section 61.046(14), Florida Statutes (2016).

  1. Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.

Section 61.30(11)(a), Florida Statutes (2016) (emphasis added).

The Florida Supreme Court in Finley v. Scott has held that a “trial court [is] not bound to mathematically apply the guideline amount. … The child support guideline amount as determined by [Section 61.30(1)(a)] presumptively establishes the amount the trier of fact [the Court] shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter. The trier of fact [the Court] may order payment of child support which varies plus or minus 5 percent from the guideline amount. The trier of fact [the Court] may [also] order payment of child support in an amount which varies more than 5 percent from such guideline amount [but] only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.” Finley v. Scott, 707 So. 2d 1112, 1115-16 (Fla. 1998).

The Florida Supreme Court went on to acknowledge how a decision on whether to deviate or not to deviate from the guideline amount is a fact-intensive decision that depends upon the record in each case and then went on to outline the process that must be undertaken when deviation is sought. Specifically, the Florida Supreme Court in Finley v. Scott has held how:

a trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the child support amount should vary plus or minus five percent from the guideline amount, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court’s determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.

Finley, 707 So. 2d at 1117.

The Fourth District Court in Alois v. Alois has recognized how “proceedings under chapter 61 are equitable in nature and thus are governed by basic rules of fairness. One of the most basic rules of fairness is that a court cannot order a parent to pay child support which that parent cannot afford to pay.” Alois v. Alois, 937 So. 2d 171, 175 (Fla. 4th DCA 2006) (internal citations omitted).

The Alois Court found that “the court should consider the non-custodial parent’s ‘basic necessities such as food, housing, utilities and transportation,’ along with the parent’s net income and support obligation, to determine if the parent can economically survive.” Id. at 177 (internal citations omitted).

The First District Court in Ervin v. Fla. Dep’t of Revenue has found how “[c]hild support decisions are typically discretionary.” Ervin v. Fla. Dep’t of Revenue, 152 So. 3d 1261, 1264 (Fla. 1st DCA 2014) (internal citations omitted). The Ervin Court went on to recognize that “a trial court’s discretion concerning child support is subject to the statutory guidelines set forth in section 61.30, Florida Statutes.” Id.

Section 61.30 [of the Florida Statutes] provides the starting point for determining the child support amount in both an initial proceeding and a modification proceeding. Pursuant to the statute, “[t]he child support guideline amount determined by this section presumptively establishes the amount the trier of fact shall order as child support.” Id. (internal citations omitted).

In determining child support:

    • A trial court is required to first determine each parent’s gross monthly income.
    • After calculating the gross income, a trial court must determine each parent’s net income by subtracting the statutorily-specified allowable deductions from the parent’s gross monthly income.
    • The trial court must then determine the parents’ combined monthly net income.
    • Next, a trial court must determine the child support needed by utilizing the statutorily-provided schedules.
    • A trial court must then determine each parent’s percentage share of the child support needed by dividing each parent’s monthly net income by the combined monthly net income.
    • Finally, a trial court must determine each parent’s dollar share of the child support needed by multiplying the minimum child support needed by each parent’s percentage share.

Id. (internal citations omitted).

It is after the trial court determines the guideline amount may the trial court evaluate from the record the statutory criteria of the needs of the child, the financial status and ability of each parent and any other relevant factors to determine if these factors support a deviation. If the trial court concludes that the guideline amount would be unjust or inappropriate, the trial court may then vary the guideline amount. Id. at 1264-65.

Consequently, if you are faced with a child support payment that you cannot afford, you should consider filing a Motion to Deviate From Child Support Guidelines. It should be noted, however, that the burden of persuasion in this matter is on the petitioner; in other words, it is the petitioner who has the burden to persuade the Court that the presumptive guidelines support amount is unjust and inappropriate.