Posted by Nydia Streets of Streets Law in Florida Child Support

When a couple divorces, it can be expected that one or both may end up in a new relationship. How does a new relationship, especially one in which a former spouse and a new partner are living together, affect Florida child support payments? This was an issue in the case Sunderwirth v. Sunderwirth, 2D20-2567 (Fla. 2d DCA January 5, 2022).

The parties divorced in 2015 after entering a marital settlement agreement which obligated the former husband to pay child support and which included a long-distance parenting plan since the former husband was living outside of Florida at the time. In 2017, the former wife petitioned to modify child support, alleging the former husband was earning significantly more income. The former husband subsequently filed for modification of time-sharing, citing the fact that his job had relocated him to Florida. The former wife filed a financial affidavit which indicated she was unemployed but that her monthly expenses amounted to about $3,300.00. In calculating a modified child support amount, the trial court included in its order “Here, it appears that the [former wife] can afford to be a stay-at-home mom in view of the fact that her fiancé, [name withheld], covers a substantial amount of her living expenses. Respondent's fiancé, [name withheld], was in the hall during the trial and was on Respondent's Witness List. Neither side called [the fiancé] to testify, nor presented any evidence, as to the in-kind payments [the fiancé] was actually making. This Court believes that under 61.30(2)(a)(13), these payments by [the fiancé] that reduce her living expense must be included in calculating her income for purposes of calculating child support.” The former wife appealed, arguing it was error to impute the expenses stated in her financial affidavit to her as income.

The appellate court agreed with the former wife. It held “The absence of a transcript poses no obstacle here where the trial court concluded that the amount of the Former Wife's financial deficit is equal to the amount of the fiancé's in kind contributions despite concluding that neither party ‘presented any evidence, as to the in-kind payments [the fiancé] was actually making.’ Therefore, the trial court's finding of in kind income in the amount of $3,368.69 was not supported by competent substantial evidence.” Additionally, the court held that even if there was evidence to support a finding of in kind income, to do so would be error: “Further, this court has held that in kind payments made by a new spouse are not to be included as additional income when calculating child support. [. . .] We can see no reason why a fiancé's in kind payments, as is the case here, should be treated any differently from a new spouse. Therefore, it follows that the trial court's treatment of these in kind payments from the fiancé as income to the Former Wife, even if they had been supported by competent substantial evidence in the record for the purposes of section 61.30(2)(a)(13), was error which appears on the face of the supplemental final judgment and warrants reversal.”

If you are facing modification of child support, schedule a consultation with a Miami family law attorney for assistance.