Child support attorney answers common questions when considering modification of child support or appealing a ruling in a child support case in Florida.
The judge based my ability to pay child support on an income figure that I have not earned for years and cannot earn currently. Is that a reversible error in Florida?
This depends on whether or not there was evidence on the record establishing that you have the ability to earn what you earned previously, and to a certain extent, whether or not there are jobs in the area available to you based on your occupational qualifications.
The trend in Florida is to assume that someone has the ability to earn what they earned previously if they are out of the workforce or earning less than they did previously. However, if you testify that you are not capable of earning what you earned before for a legitimate reason, the burden shifts to the other party to establish what income you are currently capable of earning based on your education and training. If there is evidence showing that (1) jobs are available to you that (2) would pay you what you earned previously, the judge has the discretion to base your ability to pay support on your previous income.
On a similar note, if you can establish that you cannot earn your past income due to no fault of your own, it would be reversible error for the judge to set your ability to pay support based on your past average income.
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