Posted by Nydia Streets of Streets Law in Florida Child Support
A parent who is ordered to pay child support for one child may have other children he or she is obligated to financially support. If the parent is court ordered to pay child support for the other children, the amount that parent actually pays by court order would be deducted from his income for purposes of calculating child support. What about when a child is anticipated, but not yet born, can a court take this into consideration in calculating child support for an existing child?
This issue arose in the case Fla. Dept. Rev. ex. rel. Wind v. Cochran, 1D17-4604 (Fla. 1st DCA 2018). The Department of Revenue appealed a decision by an administrative law judge which granted the father a reduction in his child support obligation for a child who was not yet born. At the time of the hearing, the father testified that his fiancee was pregnant and that he anticipated having to financially support his unborn child. Florida law allows a court to deviate from the child support guidelines to give credit for the fact that a payor has to support children living with him or her, thereby reducing the child support obligation in a given case. This is referred to as a Smith/Speed credit in reference to the name of case law discussing this issue.
Taking this into consideration, the administrative court reduced the child support guidelines by approximately $100 per month to give the father a credit for payments he anticipated making for the birth and support of his unborn child. In reversing this decision, the appellate court held, “ The [Administrative Law Judge] did not cite, nor has our research located, a single case involving an award of a Smith/Speed credit for an unborn child. The absence of such authority is not surprising because it is well-established that the child support obligation does not commence until the birth of the child.” The court further held, “The award of a Smith/Speed credit for an unborn child also raises practical problems. Although the ALJ found in the FAPSO that there was "no evidence or argument presented to suggest that this imminent birth [of the father's then-unborn child] was not credible or certain," there is never a guarantee of a healthy pregnancy or delivery. If the unborn child was not born, the father would have received a windfall to the detriment of the child at issue in this case and the mother would be forced to file a modification petition to increase the award to what it should have been had the Smith/Speed credit not been awarded.”
Calculation of Florida child support involves many factors on both sides. This is why it is important to seek the assistance of a lawyer who is familiar with the Florida child support guidelines. A consultation may help you maximize all credits due to you in calculating support.