Maintenance & Support (Alimony & Child Support) Flashcards
1
Q
What is required in order for an award of alimony to survive appeal
A
COURT SHALL INCLUD FACTUAL FINDINGS OF FACTS IN ACCORDANCE WITH 61.08
2
Q
What is the first step court shall determining in an alimony claim
A
NEED & ABILITY
3
Q
What is the most common basis to appeal an alimony award
A
LACK OF FACTUAL FINDINGS - litigants are REQUIRED to file motion for rehearing in order to preserve right to appeal if the basis is lack of factual findings
4
Q
Does court have ability to order relief to protect alimony award
A
61.08(4)
To the extent necessary to protect an award of alimony, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets that may be suitable for that purpose. The court must make specific findings that there are special circumstances that warrant the purchase or maintenance of a life insurance policy or a bond to secure the alimony award. If the court orders a party to purchase or maintain a life insurance policy or a bond, the court may apportion the costs of such insurance or bond to either or both parties based upon a determination of the ability of the obligee and obligor to pay such costs.
5
Q
How is the length of marriage defined
A
DOM - DOF
6
Q
What must be included in a FJ awarding rehabilitative alimony
A
Specific and defined rehabilitative plan
7
Q
Must court order alimony to be paid through depository?
A
For alimony after 1/1/85 - it’s not necessary if there are no kids or if there are kids and both parties agree not necessary
8
Q
If both parties agree that depository is not necessary for alimony payments, is this permanent
A
No, either party can later apply to the depository to require payments take place through there
9
Q
If a party wants payments through depository after award of alimony, what must they do
A
File an affidavit alleging default or arrearages and state request for depository & provide copy to interest parties
15 days after receipt of affidavit, depository shall notify all parties payments should be directed to depository
10
Q
When can a party seek temporary alimony
A
During pendency of DOM and even during period of time that a FJ is being appealed
11
Q
Can the court award temporary undifferentiated support for alimony and child support
A
No - this is an abuse of discretion - court has to identify amount for alimony and child support consistent with CSG
12
Q
Do you have to plead for alimony
A
Yes - include all 4 types in your pleading if you want to request it. If you request permanent and nothing else and it’s denied, you’re stuck
13
Q
Must the FJ for an award of alimony include language as to when the award terminates
A
61.08 was modified to set forth how each type of alimony is terminated BUT in 2019, TRITSCHLER case the 2nd DCA held that a failure to identify time and manner for terminate of alimony was error on its face
14
Q
Can the court award alimony after entry of a FJ
A
Only if it reserved jurisdiction based on a potential change in circumstances
15
Q
If court does not award alimony and fails to reserve jurisdiction to determine alimony later, can it later award alimony
A
NO SUBJECT MATTER JUR TO CONSIDER A LATER REQUEST FOR ALIMONY
16
Q
What is an effective way for court to reserve jur to deal with alimony later if circumstances change
A
Award nominal alimony such as $1 so it can later increase amount in modification
17
Q
What is court doesn’t provide terminate date for rehab alimony
A
It is reversible error
18
Q
What must all FL courts find in order to award bridge the gap alimony
A
Must be proven by competence substantial evidence of legitimate identifiable short terms needs and it cannot exceed 2 years
19
Q
When would a rehab plan be inappropriate
A
If the recipient spouse has no capacity to be rehabilitated - the purposes of rehab alimony is for recipient to develop skills to become self supporting
20
Q
If a spouse is already self sufficient at time of divorce, can rehab alimony be awarded
A
It may still be awarded if the rehab plan offers a greater earning potential over course of career
21
Q
What evidence must a spouse put on to seek rehab award
A
Competence substantial evidence that the training in the plan will increase his or her earning capacity
22
Q
When did durational alimony become part of FL law
A
June 1, 2010
23
Q
who has burden of proof in request for alimony
A
Person requesting alimony has burden of proving NEED AND ABILITY once they meet their burden, burden shifts to the other spouse to rebut
24
Q
What is spouse seeking alimony burden with respect to alimony request
A
In proving NEED - must establish the income available to themselves
In providing ability to pay - must show income available to payor including imputed income
25
What is standard of review concerning a recipient spouses' need?
Abuse of discretion
26
When determining need and ability, should court be using gross or net income
It is reversible error to use gross income COURT MUST USE NET INCOME when determining need & ability
27
Can undistributed pass through income be used as income for purposes of alimony
Zold determine that it depends on the reasons why the fund were retained
undistributed pass through income retained by a corporation for corporate purposes does not consistent income within chapter 61
28
Why are undistributed pass through income retained by a corporation for corporate purposes not considered income for purposes of alimony?
Bc that pass through income will be used by the corporation to maintain corporate operations and therefore cannot be used by a shareholder spouse to satisfy financial obligations imposed upon DOM
29
Who has the burden of providing that undistributed pass through income should or should not be considered as income for alimony
The shareholder spouse has the burden to prove that the undistributed pass through income was properly retained for corporate purpose
30
What should court consider when analyzing if undistributed pass through income should be considered
1. the extent to which shareholder spouse has access or control over pass through income
2.limitations governing corporate distributions to shareholders
3. purpose the funds are being retained
31
What did the Niederman case stand for
Reiterates that all sources of income available to parties must be considered including retirement. In Niederman, Court was required to consider income W would receive from IRA even though she had to take steps to set up a 72(t) withdrawal plan in order to make penalty fee withdrawals prior to 59 1/2. It put Wife's retirement into pay status to give sizeable income without invading principal
32
What must court consider in determining if a spouse is voluntarily unemployed
1. If employment previously existed and was terminated voluntarily
2. If unemployment is a result of spouse's failure to diligently find employment that is equivalent in income to former position
33
If income is to be imputed, what must trial court do
Trial court may only impute a level of income supported by evidence of
-employment potential and probably earnings based on work history
-qualifications
-wages in community
34
Can court consider a spouse's condition that existed before a marriage in an award of perm alimony in a short term marriage
Yes - Levey case 2nd DCA 2005
35
What is TCJA
Tax Cuts & Jobs Act
36
What year did TCJA say alimony payment no longer deductible and no longer taxable to recipient
Any agreement executed January 1, 2019 and after
37
Does the recapture rule apply
Not to any alimony awards entered after 12/31/18
38
When does lump sum alimony terminate
Unless an agreement states otherwise, a lump sum alimony award does NOT terminate on payee's death and it is therefore not deductible for fed income tax purposes
39
Parties agree W will stay home with kids during marriage and H can afford same. Upon divorce, W wants to remain home with kids and H can afford. Is it error for court to award alimony?
It is improper if recipient spouse is able to be rehabilitated
40
What is the general standard in determining standard of living
The last 3 years of the marriage
41
Can court award alimony to equalize financial position of parites
It's error to do that according to Donoff 4thDCA 2006
42
When should lump sum alimony be awarded
1. special necessity justifying it
2. unusual circumstances which would require the non modifiable award & payor can make payment without endangering economic status
43
Is lump sum alimony an additional form of alimony
No it's a manner in which alimony is paid
44
Can court order lump sum ED
YEs - it's just an equalizer payment but it can't be treated like alimony or subsequently reclassified alimony to employ enforceability power
45
Is lump sum alimony modfiable
No - it's non modifiable, payment doesn't terminate upon death of payor or remarriage or recipient which is why special and unusual circumstances are required for such an award
46
H has a history of refusing to pay support. Can court award lump sum?
Yes - this would be an appropriate lump sum alimony award
47
Can court order lump sum rehab alimony
Yes
48
Is lump sum rehab alimony modifiable
Unlike lump sum alimony - lump sum rehab alimony is modifiable / terminable if remarriage or other circumstances exists to eliminate or alter need for further rehab
49
Is an award of life insurance or a bond standard in DOM
No - it is not standard or customer. NECESSITY is the key to invoking such request per 61.08(3)
50
What are grounds for court to order an obligor to secure a support obligation with life insurance
Special circumstances must exists - it can be awarded to satisfy arrearages or to protect financial well being of recipient
51
What are some methods of security a support award
-life insurance most common
-can include placing a lien on some or all of payor's assets
-alimony trust is also viable and is created by having payor transfer the asset to a trust to a trustee for benefit of recipient
52
What are deemed special circumstances for purposes of an order to secure alimony obligation
-when receiving spouse is faced with being plunged into dire economic status upon death of payee
53
What is considered an excess award?
-One which requires payor to pay all or nearly all of its income
-usually more than 50% of net is excessive
-court must look at entire support obligation a total - alimony, cs, health insurance, % of kid expenses
54
What is the standard of review for alimony
abuse of discretion
55
What is needed in an order for alimony to sustain appeal
competent substantial evidence
56
What period of time can court consider for retroactive child support per 61.30
1. date of filing modification or 24 months before filing for an initial determination
2. the date a parent stopped exercising TS
57
The court entered a final judgment (in Feb. 2016) which did not award child support, but provided that either party could file a “motion” to seek child support without having to prove a substantial change in circumstances. In October n2016, the former wife filed her motion seeking child support and the magistrate granted the motion retroactively to the Feb. 2016 final judgment. Was it error to award retro to Feb 2016?
It is error to award retro for a period of time before the filing of mom's motion
58
What is UIFSA
Uniform Interstate Family Support Act
59
What does UIFSA do
It identifies parameters under which a court may establish enforce and modify interstate child support cases
60
What does Chapter 409 do for cs actions
It authorizes DOR to step into the shoes of the recipient of any tempt cash or title IV-E assistance made to or for the benefit of any dependent child via an assignment of rights
61
What does Chapter 742 for cs actions
Provides for establishment of temp CS, modification of CS and final orders of CS - it also also for disestablishment of paternity or terminate of cs
62
How does Chapter 741 impact cs
Allows for establishment of temp cs in DV proceeding while DV injunction is in effect
-a
63
Can a spouse seek support without filing for divorce
61.09 - separate maintenance
If a person has ability to contribute to maintenance of his or her spouse or child and fails to do so, a spouse can apply to court for alimony & cs without filing for divorce
64
What must a court do if a spouse seeks adjudication of obligation to support spouse and minor child unconnected to DOM per 61.10
A spouse living in same state apart from their spouse and minor child can obtain an adjudication of obligation to maintain the spouse and minor child - court determine alimony & cs and establish a PP
65
When can court consider support for a dependent persons beyond age of 18?
1. If court has jurisdiction, it can order support for a dependent beyond age 18 when the dependency is a result of a mental of physical incapacity which began BEFORE turning 18 OR
2. If person is dependent in fact and is between ages 18-19 and still in high school performing in good faith with reasonable expectation of graduation before age 19
66
What are the basic principles/public policy for CSG
1. Each parent has a fundamental obligation to support their minor until legally dependent
2. CSG is based on parent's combined net income estimated to have been allocated to the child as if parents still lived together
3. Encourage fair and efficient settlement of support issues and minimize litigation
67
When can court order a cs payment that varies plus or minus 5% from CSG?
Must consider all relevant factors
1.needs of child or children
2.age
3.station in life
4.standard of living
5.financial status of each parent
68
What must court include in order if it orders cs that varies more than 5%
WRITTEN FINDINGS EXPLAINING WHY csg would be unjust or inappropriate
69
When SHALL a court order payment that varies from CSG
When children spend a substantial amount of time with either parent - this applies to any living arrangement temporary or permanent
70
When can CSG provide for substantial change in cir for mod
-Difference b/w existing obligation and CSG amount is at least 15% or $50 whichever amount is greater;
-In DOR cases, mod may be granted if amount of obligation differs by 10% but not less than $25
71
For purposes of CS, how is gross income defined
61.30(2)
-salary or wages
-bonuses, commissions, allowances, overtime, tips or similar payments
-business income - gross receipt minus ordinary and necessary expenses required to produce income
-disability benefits
-worker's comp benefits& & settlements
-reemployment assistances or unemployment compensation
-pension, retirement, annuity payments
-social security benefits
-spousal support received from previous marriage or court ordered in current action
-interest and dividends
-rental income - gross receipts minus ordinary and necessary expenses required to produce the income
-income from royalties, trusts, estates
-reimbursed expenses or in kind payments to the extend they reduce living expenses
-gains derived from dealing in property unless gain is nonrecurring
PUBLIC ASSISTANCE IS EXCLUDED FROM GROSS INCOME
72
When can court consider nonrecurring income for purposes of CS
61.30(13) - if recurring income is insufficient to meet needs of child, court can order support to be paid from nonrecurring income or assets
73
IF court orders CS from a nonrecurring asset, what MUST court find
That the payor is depleting the asset to maintain lifestyle or that recurring income is insufficient
74
Can child support received for a different kid be considered income for purposes of CS
No - cs received from another child is not to be included in recipient's income
75
If court determined bonus income is regular and recurring, what considerations must be made
Must consider the receipt of the bonus in structuring such payments
76
Should annual gift to FH by his mother for kid's education be included as income to FH for purposes of cs
no
77
What is net business income
Gross receipts minus ordinary and necessary expenses required to produce income plus a reduction for income taxes including self employment taxes
78
Is the definition of net business income for purposes of CS the same as IRS standards
No
79
How should social security benefits received by a parent FOR A CHILD'S DISABILITY be treated
That should not be treated as income to that parent but that could be used as a basis for a deviation from CS
80
How should social security benefits for a child received as a result of PAYOR'S DISABILITY or RETIREMENT be treated for cs purposes
IT should be included when calculating family's gross income and then credited against the disabled parent's cs obligation
If the credit s MORE than the CS, the excess goes to benefit of kid and if the credit is LESS than CS, parent pays the difference
81
If there is no exchange of child support due do a credit as a result of social security benefits for a child received as a result of payor's disability or retirement, what must court include in its order
It is an abuse of discretion for court to say no cs is owed - it must specifically state the cs owed before applying disability benefit and include findings so everyone is on notice that obligation is being reduced bc of the benefit being received
82
How are VA disability benefits viewed
Included as income for cs
83
How are private disability benefits viewed
Income for cs
84
How should court treat trust income
All trust income must be included - even if beneficiary of trust elects to not maximize the total amount entitled to - the total amount shall be imputed for cs purposes, error not to.
85
How are housing allowances provided to dept of state employees viewed
-Income
86
Can value of free housing be included as income
yes
87
Can payment of monthly living expenses by 3rd party be included as income?
It may be
88
What must court do if it includes payment of health insurance?
It has to then substract that amount for health insurance for that parent from their net income
89
What is the 4th DCAs view on determining exclusive use of marital home for purposes of cs
4th DCA has determined its a carrying cost of a joint asset and not considered an in kind income for cs
1st, 2nd and 5th say it's an in kind benefit in the form of reasonable rental value to the parent in possession of the home and therefore 1/2 of reasonable rental value should be included as income to the parent in possession of home for purposes of cs
90
what must court do in event of voluntary unemployment or underemployment for purposes of cs
Monthly income SHALL (no discretion here) be imputed if unemployed or underemployed and court finds it's voluntary & not due to physical or mental health out of that parent's control BUT
Curt can refuse to impute income if court finds its necessary for the parent to stay home with a child subject to the cs
91
What is the standard imputation of income analysis for cs
COURT MUST MAKE SPECIFIC FINDINGS
1.Voluntary
2. Less than diligent efforts
3. Employment Potential and Probably Earning Levels
92
When must court determine unemployment or underemployment is voluntary for cs
If the unemployment or underemployment is not due to mental or physical issues which they have no control
93
What must court consider in determining the employment potential and probably earning level of an unemployed person for cs
1. recent work history
2. occupational quals
3. prevailing earning sin community
94
What can imputed income NOT be based on
1. income records that are more than 5 years old at time of hearing
2. income at a level party never earned in past UNLESS recently degreed, licensed, certified relicensed ore recertified
95
Who has burden of proof for imputation of inc
Parking seeking imputation at an amount other than medican income has burden to present competent substantial evidence that
1. unemployment/under is voluntary and
2. identifies the amount and source of imputed income through evidence
96
When must a court impute median income of a year round full time work
1. income for a parent is unavailable
2. parent fails to participate
97
What happens for cs purposes if a parent's income is unavailable for action or fails to supply adequate info
Income shall be imputed and there is a rebuttable presumption that their income is equivalent to median income of year round full time workers
98
When can the court NOT impute incme
when income is based on illegal activities
99
Can income be imputed if you were fired
If fired based on your voluntary actions
100
Can income be imputed if a parent voluntarily leaves employment to enhance career ?
Court has to evaluate if enhancement will benefit kids
101
What are allowable deductions to determine net income for CS
-fed state local income tax deductions adjusted for actual filing status and allowable dependents
-FICA (fed insurance contributions) or self employment tax
-Fed insurance cont / self employment tax
-Mandatory union dues
-Mandatory retirement
-Health insurance premiums excluding kid coverage
-Court ordered child support for other children actually paid
-court order alimony previous or current
102
What must court do in order when determining net income
Must include findings supported by competence substantial evidence to support deductions from gross income
103
How is cs caclulated
STEP 1 Determine net income for each parent (allowable deductions from gross income)
STEP 2 add parties income together
104
What if obligor's net income is less than the $800 - lowest amount in CSG
court must order cs on case by case basis and establish the principle payment and law basis for increased support as parent's income increases
-obligor's payment shall be the lesser of the parent's actual dollar share of total min cs and 90% of difference between obligor parent's monthly net income and current poverty guidelines
105
Court may adjust the total MINIMUM cs based on what deviation factors
1. extraordinary medical psychological educational or dental expenses
2. independent income of child not including money received by child for supplement security income
3. payment of support for a parent which has been regularly paid and there is a demonstrated need
4. season variation of incomes and expenses
5. age of child taking into account greater needs of older children
6. special needs - disability of child, that have traditionally been met within family budget even if that exceeds csg
7. total available assets of obligee obligor and child
8. impact of IRS, child tax credit, earned income credit dependency exemption and waiver of exemption
9. application of guidelines that requires a person to pay another person more than 55% of their gross income
10. child spends less than 20% of overnights with one parents
11. any other adjustment necessary to achieve fair result - can consider debts
106
Can court deviate from gross up csg
Yes, base do on all regular deviation factors AND
1. obligee's low income & ability to maintain basic necessities of a home for a child
2. likelihood that either parent will actually exercise ts
4. whether all children are on same TS
107
If a parent has subsequent kids and gets a secondary job to support, can that secondary income be used to modify cs upwards
Court MAY disregard that second source if it decides it was obtained primarily to support subsequent kids
108
If a parent subject to CS has subsequent kids, can they seek downward mod
Subsequent kids is not a justification to decrease and existing award
109
What is required with the filing of all child support actions of modifications of cs
Financial affidavit must be filed simultaneously
110
If respondent served with child support action or modification action what must respondent file with answer
FA OR as soon as reasonably practical but in any case AT LEAST 72 HOURS prior to a hearing on finances of either party
111
What should court consider in determining retroactive child support award
1. income during retroactive period
2. actual payments made by parent to other or child or 3rd parties for benefit of child
3. court shall consider installment payment plan for retro payments
112
Can court defer on cs until later when parent as no income
No - has to calculate csg
113
What must child support order and IDO include
1. child support to terminate on 18th day until court finds child is age 18 and in hs with reasonable expectation of graduation before 19th bday
2. step down cs if more than 1 kid
3. month day and year when the reduction or term happens
4. full name dob of each minor child
114
Must cs be paid via IDO
If both parties request and court finds it is in BIC, cs doesn't have to be via IDO
115
If CS is not via IDO, what is an alternative
Payment directed to depository or state dibursement unit
116
Does trial court retain jur to modify cs?
Only IF
1. mod is in best int of child
2. sub change in cirm
3. until child turns 18
4. over 18 if in high school
5. if child isn't emancipated
6. child hasn't married jointed armed serves and isn't dead
117
When must court include health insurance in child support order
When it the cost is reasonable and accessible - it's presumed reasonable if adding it does not exceed 5% of gross income
118
when can order for health insurance be served on obligor's employer
1. obligor fails to give written proof to obilgee w/in 30 days
2 obligee gives written notice of intent to enforce by mail
3. obilgor fails to provide proof of insurance within 15 days of receipt of notice
119
For a union employer, what must they do upon receipt of an order for health insurance
Must enroll child in group plan regardless of enrollment period and withhold premium from obligor's income. If more than one plan offered, will enroll in same one as obligor
120
can party get an IDO after entry of FJ w/ no IDO
Yes - by filing an affidavit w/ depository alleging default and request for future payments via depository , provide copy to court and each party' 15 days thereafter payments shall be made through depository except for IDO must be through SDU
-no court appearance is required
121
When can court order cs under uniformed deployed parents custody and visitation act
if court has issued and order granting caretaking authority court can enter temp cs authorized by general law if court has jur under UIFSA
122
If court has jur for cs under Uniformed deployed parents and custody vitiation act, what may court include in its order
1.temp cs from deploying parents to other per 61.30
2.require deploying parent to enroll child as military dependent
3. suspend abate or reduce cs of other parent until ts order previously in effect is reinstated
123
What must IDO include
SHALL:
1. direct payor to deduct support form income
2. state amount of arrearage owed and direct payor to withhold an extra 20% until arrearage paid in full
3. provide that if delinquency accrues after order, payor shall deduct 20% until current
4. direct payor to not deduce in excess allowed by consumer credit protection act
5. instruct payor re bonuses
6. In title IV case direct payor to provide to court depository the date the deduction is made
7. in title iv case if obligation is reduced or terminated due to emancipation and there is an arrearage, direct payor to continue to pay until satisfie
8. direct payment to be made to SDU
124
Are IDO's immediately implemented
Yes unless court says why it's in best interest to not be immediate, proof of timely payment before IDO or by agreement but it can't be delayed by more than 1 month
125
When can obligee ask court to suspend DL of professional license
Must give notice and obligor has 30 days to cure issue if nothing done then obligee can petition court for relief
126
When may court deny relief to suspend licenses or certificate
-if doing do would cause irreparable harm or would not accomplish the objective to college pmt or
-obligor shows they made made good faith effort to resolve
127
What are defenses to child support arrearages
-payment, cessation due to majority, change in custody (denial of TS not sufficient)
128
Is a party entitled to interest on cs arrearage?
A party is entitled to interest prospectively on amount of retro from date court detrmines amount and orders payment
129
When can court order payment of private school
1. parties have ability to pay
2. it's a customary standard of living
3. it's in child's best interest
130
How does court treat orthodontic expenses
Split in districts - but unless it's deemed medically necessary, it's not to be included. Basic braces for aesthetics not likely mandatory
131
Can court order lump sum cs
No but it can sequester a parent's assets to secure future cs
132
Does court have jur to consider modification of cs and alimony when underlying order on appeal
YEs - it just can't enter a FJ
133
DOR brings admin action and order established. Can circuit court vacate it or retroactively affect order
No - but it can enter an order changing support prospectively
134
What must all income deduction orders entered on or after October 1, 2010 include
61.13
1. Child support ends on child's 18th bday unless court previously finds that the child will be dependent beyond the age of 18 years due to a mental or physical incapacity that started before 18 OR or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.
2. Schedule stating amount of child support and what it will be when one or more kid no longer entitled to cs
3. Month, day and year that the reduction or termination of cs takes effect
135
Does a court who initially enters an order of cs retain jurisdiction?
61.13 - court who makes initial termination of cs retains jurisdiction after entry of the order to modify amount and terms and conditions IF mod is in BIC; when child reaches majority; if sub change in crim; or when child emancipates, marries, joins armed services, or dies.
136
What must a child support order include
Provision for health insurance when it is reasonable in cost and accessible to child
137
When is health insurance for child deemed reasonable in cost
IF the incremental cost of adding health insurance for the child does not exceed 5% of the gross income (defined in 61.30) of the parent responsible for providing it.
138
When is health care deemed accessible to the child
If health insurance is available to be used in the county of the child's primary residence or in another county if the parent who has the most TS agrees.
139
When is health care deemed accessible to a child when parents have equal ts
health insurance is accessible to the child if the health insurance is available to be used in either county where the child resides or in another county if both parents agree.
140
Can the presumption that health insurance cost is reasonable be reubutted
Yes, by any factor in 61.30(11)(a)
The 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.
141
What must court include in order if presumption that health insurance is affordable is rebutted
Court may deviate ONLY UPON WRITTEN FINDING EXPLAINING ITS DETERMINATION why ordering or not order health insurance for kid is unjust or inappropriate.
142
How can the department enforce a support order under Title IV-D of the Social Security Act which requires that the obligor provide health insurance?
Through the use of the national medical support notice, and an amendment to the support order is not required.
143
What steps are required by department in enforcing health insurance through national medical support notice
(1) The department shall transfer the national medical support notice to the obligor’s union or employer.
(2) The department shall notify the obligor in writing that the notice has been sent to the obligor’s union or employer, and the written notification must include the obligor’s rights and duties under the national medical support notice.
(3) The obligor may contest the withholding required by the national medical support notice based on a mistake of fact.
144
If an obligor contested the withholding by medical support notice, what must they do
To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department.
Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department
145
What must department do upon timely notice of contest by obligor
Within 5 business days, schedule an informal conference with the obligor to discuss the obligor’s factual dispute. If the informal conference resolves the dispute to the obligor’s satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn.
146
What is the dispute at informal conference doesn't resolve the issue
If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department.
147
While the contest is underway, what happens with the premium payments to be withheld that are in dispute?
However, the filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated.
148
It Title IV-D cases, what must department do if obligation to provide health insurance is termianteed
the department shall notify an obligor’s union or employer if the obligation to provide health insurance through that union or employer is terminated.
149
In a non Title IV-D case, if obligor order to pay health insurance premium, what has to happen
Upon receipt of the order to provide health insurance premium or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor’s income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled.
150
what should employer or union do upon receipt of medical support notice
The union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor’s income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is accessible to the child.
151
What must employer or union do if obligor's employment is terminated
Notify the dept with 20 days & provide obligor's last known address and name and address to obligor's new employer if known
152
If the combined amount to be withheld for current support plus the premium payment for health insurance exceed the amount allowed under the Consumer Credit Protection Act, and the health insurance cannot be obtained unless the full amount of the premium is paid, what must union do
the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order:
(I) Current support, as ordered.
(II) Past due support, as ordered.
(III) Other medical support or insurance, as ordered.
153
what happens to an employer, union or plan administrator who doesn't comply
Civil penalty not to exceed $250 on 1st violation and $500 for subsequent violations including attorney's fees and costs
154
What can department do to enforce if employer, union or plan administrator who doesn't comply
Petition circuit court to enforce
155
Can the department adopt its own rules to administer child support enforcement provisions
Yes
156
when can court order child support be secured by life insurance
To the extend necessary to protect an award - can order life insurance or a bond or secure cs with any other asset suitable
157
If payment via IDO where does money goes
State Disbursement Unit
158
What is now required to preserve appeal of alimony award attacking findings
MUST file a motion for rehearing to preserve your claim for appeal if you are attacking the following:
-lack of finding need & ability
-failure to make finding net incomes
-failure to consider factors
FILE 15 DAYS
159
How many days do you have to file a motion for rehearing be filed
15 days after FJ
160
What are the factors per 61.30 in which a court can consider for deviation from CSG
1. MAJOR MEDICAL EXPENSES
2. KID INCOME (NOT SUPP SSI)
3. PAYMENT FOR A PARENT
4. SEASONAL VARIATION
5. AGE OF KID
6. SPECIAL NEEDS OF DISABLED CHILD
7. TOTAL ASSETS OF PARTIES & KID
8. TAXES IN CS
9. IF CS RESULTS IN PAYMENT OF 55% OR MORE IF GROSS INC
10. GROSS UP (20% OR MORE TS)
11. ANY OTHER FACTOR TO DO EQUITY
