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No Contempt When a Parent Cannot Pay Child Support

Attorney Peter Mavrick
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12/22/08

NO CONTEMPT WHEN A PARENT CANNOT PAY CHILD SUPPORT


An unfortunate aspect of the family law system in Florida is parents are sometimes unlawfully threatened with incarceration for failure to pay child support when they actually lack the ability to pay.  While some parents willingly refuse to honor their child support obligations, others would like to pay but cannot.  They may have lost a job.  They may have other children with special needs that impede their ability to pay.  They may have medical or other problems that hamper their financial circumstances.  Often they lack the ability to hire an attorney, and free legal services, such as Legal Aid, refuse to help them.  Fortunately, Florida’s appellate courts offer a source of relief to the parent who legitimately cannot pay his or her child support.

The Florida Department of Revenue generally files civil contempt proceedings against non-paying or financially delinquent parents.  The objective of the Department of Revenue is to force the non-paying parent to pay money.  However, as explained by a recent Fourth District Court of Appeal case, Larsen v. Larsen, 949 So.2d 278 (Fla. 4th DCA 2007), and its predecessor Larsen v. Larsen, 901 So.2d 327 (Fla. 4th DCA 2005), civil contempt is not available against a parent who lacks the ability to pay a “purge” amount.  A purge amount means a figure a court says will be needed to avoid a penalty, such as incarceration.  The critical question is, does the financially delinquent parent have the ability to pay the court ordered purge?  If the evidence, not hunch or guess-work, shows that he or she cannot pay the purge, then there can be no civil contempt or penalty against the financially delinquent parent.

In the 2007 Larsen decision, the appellate court reversed a trial judge who held a father in civil contempt for failing to pay his full child support, as it was previously calculated before his financial circumstances had changed.  The father tendered evidence that he lacked the income to pay child support, because he had to pay rent of $560/month, $200/month to the Internal Revenue Service, and paid his ex-wife $500/month; the ex-husband stipulated his monthly income was $1,700.  In other words, the ex-husband had only $440/month to somehow make ends meet, such as buying food to eat, paying for any needed transportation to and from work, and paying for other necessities such as medical care.  The former wife “admitted she did not know the former husband’s salary or if he had the ability to satisfy his financial obligations.”  The appellate court concluded that there was “no substantial, competent evidence to support the trial court’s finding that the former husband had the ability to pay the full amount of the previously ordered support and willfully refused to pay the same.”  The appellate court concluded that the trial court was not justified in holding the father in contempt and requiring him to pay more money to the ex-wife; the appellate court reversed the trial court’s decision.

The Larsen case illustrates the general principle that child support obligations must be reasonable and cannot be used as a weapon to force payment a parent does not have.  As economic circumstances worsen, this case will become an important defense for parents whose finances do not legitimately allow them to meet their previously calculated child support obligations.

Attorney Peter Mavrick practices in the field of business and labor/employment litigation in Fort Lauderdale, Florida.  The research in this article stems from legal work for a former client who needed assistance.  Mr. Mavrick’s law office phone number is (954) 564-2246.  Information contained in this article is accurate as of December 2008.  This article is for general information use only, and does not substitute for specifically tailored legal advice.  

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