Two Mysteries of Florida Family Law Rules

In the course of doing business as a legal document preparer, my customers often ask me questions about procedure and why things are the way they are. I am allowed to provide consumers information regarding procedural rules, timelines, etc.; as long as I refrain from offering legal advice. Most people that contact me do not want legal advice anyway, they just don't know how to fill out the forms. And that's why we're here. The reason for this entire industry is that consumers either don't know how to prepare their own documents, don't have the time, or cannot possibly afford an attorney. A large part of the documents I prepare are family law documents, such as divorces, and supplemental petitions for modification of existing orders.

Mystery Number One:

If a couple is divorcing, they have no children, and they have already split all their assets, why does the State of Florida require a family law financial affidavit?

This is a basic divorce scenario where both parties want to go their separate ways, and have no disputes over anything. In the past couple of years, the requirement for a financial affidavit in a Simplified Dissolution of Marriage (which has never been so simple in my opinion - and I rarely have a request for these forms) changed so that divorcing couples using the simplified process can waive the financial affidavit requirement. However, the huge drawback for couples using the simplified process is that they both must appear in court. And, although, they may not have any disputes over property or children, they still may not want to be in the same room together ever again, and they may not be sure that the other party is going to be completely reliable, and if the other party doesn't show up, then there will be no divorce. And they will very likely have to pay another filing fee to get the divorce completed. So, many couples who qualify for the simplified process, use a petition for dissolution with no children and no property instead. That way, the more motivated party, can make sure he or she is the petitioner, and make sure that the divorce is completed, and the marriage is done and over, regardless of whether the other party cooperates or not. But, these couples are required to file a financial affidavit. Why? Customers ask me all the time. And my only answer is that the State of Florida says so, and beyond that I have no idea.

I recently helped a customer whose ex-husband to be lives in another country. No children, no assets, no debt. She sent him the divorce petition and an answer and waiver of appearance for him to sign. Which he did. But, when she tried to schedule a hearing, the clerk of court refused to schedule it because her husband had not filed a financial affidavit. And then the clerk of court directed her to file a motion to compel him to file a financial affidavit. Since he is in another country how can the State of Florida compel him to do anything? Sounds like a legal question, and I have no idea what the answer is. The bigger question is the central mystery here. Why is it the business of the State of Florida to know the financial information of a consumer, just because they are going through a divorce? If you know the answer, please comment.

Mystery Number Two:

This second mystery is much worse. Frequently, when unwed parents part company the mother (usually) files for child support through the Florida Department of Revenue. The father receives a notice in the mail that he must appear for the child support hearing and to bring all his pay stubs and proof of income. Many fathers are happy to go because they think that they can also request child visitation (timesharing) at the same hearing. Au contraire mon frere! However, most of the time these hearings are held before a General Magistrate, not a Judge. A General Magistrate also called a Hearing Officer is usually an attorney appointed by the Chief Judge to hear uncontested family law matters. So when the parties go in front of the General Magistrate, the court's assumption is that there is no dispute. The father owes child support, and that's the end of it. The General Magistrate is not allowed to hear any disputes, not allowed to hear anything related to child visitation, and the fathers come out of those hearings with their heads reeling. When the father tries to bring up child visitation or custody, the General Magistrate refuses to hear it. Most often the General Magistrate does not explain to the father why he can't hear it (because he's not allowed to); and doesn't tell the father what he can do to make sure that he has the legal right to see his own children and not be treated like an ATM.

Why does the State of Florida persist in allowing the fathers to be treated this way? If you know the answer as to the why, please comment.

There is a solution, however, and I truly hope this is helpful to someone. If you are caught in the situation described above: File a Petition to Determine Paternity and Related Relief; and a proposed Parenting Plan. The outcome will be an order naming you as the legal father, with the legal right to spend time with your children. The Parenting Plan is the schedule of visitation.

Civil Sanctions for Failure to Pay Child Support

Everyday in Florida parents are subject to civil sanctions for failure to pay court ordered child support. It is common that a General Magistrate or Circuit Court Judge will order sanctions despite the fact that the parent who has been ordered to pay is not able. Sanctions often include driver's license suspension or incarceration. The fact is, and the law is, that if a parent who is ordered to pay child support does not have the ability to pay -- sanctions cannot be imposed. The inability to pay child support is not contempt of court. Contempt of court, must be willful -- not unable. Read the following appellate case. It's not long, and not hard to follow, and it may just keep you driving and out of jail.

LARSEN v. LARSEN No. 4D04-773.

901 So.2d 327 (2005)

John Edward LARSEN, Appellant,
v.
Eva LARSEN, Appellee.

District Court of Appeal of Florida, Fourth District.

May 4, 2005.

WARNER, J.

Appellant challenges an order authorizing the suspension of his driver's license for nonpayment of child support with a purge provision of $2,500. He claims that he does not have the present ability to pay the purge amount. Because the suspension of a driver's license constitutes a civil sanction, the court must provide the contemnor with the opportunity to purge the sanction, and it must determine that the contemnor has the present ability to pay the purge amount. Gregory v. Rice, 727 So.2d 251, 253-54 (Fla.1999). Not only did the trial court fail to make such a finding, nothing in the record would support a finding that appellant has the ability to pay that amount. We therefore reverse. 

Appellant has accumulated substantial arrearages on alimony and child support obligations. He has instituted several modification proceedings since the dissolution of marriage, mainly because he lost his job as a pilot. In a mediated settlement in July 2002, the parties agreed to an arrearage, and appellant agreed that should he miss one payment, the Support Enforcement Division would be entitled to seek automatic suspension of his driver's license.

Subsequent to the agreement, appellant again moved for modification, and SED moved for contempt and sought to suspend appellant's license for nonpayment of support. The contempt motion was referred to a general master who recommended holding the father in contempt and requiring a purge amount of $1,638.25. The trial court adopted the general master's recommendations, and appellant filed a petition for writ of prohibition in this court, which we treated as a non-final appeal. We reversed the order of contempt, determining, in part, that the order lacked a finding that appellant had the present ability to comply with the purge amount, and failed to provide a factual basis for such finding as required by Florida Family Law Rule of Procedure 12.615(e). See Larsen v. Larsen, 854 So.2d 293 (Fla. 4th DCA 2003).

While his petition for modification was pending, appellant received notice of SED's intent to file for suspension pursuant to section 61.13016, Florida Statutes (2003), and moved for a case status conference as well as a hearing on his motion to contest the suspension. At the hearing, the court stated that the suspension of the driver's license was not a contempt sanction. The court denied appellant's objections to the impending suspension, but imposed a purge provision of $2,500. Upon receipt of the purge amount, SED was directed to abate the proceedings for license and motor vehicle registration suspension until further order of the court. Appellant's license was suspended after he failed to pay the purge amount.

Section 61.13016 provides that an obligor who has been given notice of the intent to suspend his or her driver's license may petition the court to contest the delinquency action. § 61.13016(1)(c)1.c. The obligor may contest the notice by showing a mistake of fact as to the delinquency or the obligor's identity. § 61.13016(3). The statute does not contain language excusing the suspension for inability to pay.

However, this case is controlled by expansive language¹ in Gregory v. Rice, 727 So.2d at 254:

Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted.

(Emphasis added). Gregory also reconfirmed the principles of Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), that the court must find a present ability to pay the purge amount in order to enter a civil sanction. 727 So.2d at 253-54.

Therefore, the sanction of driver's license suspension must be considered a contempt sanction under Gregory for which the court must find a present ability to pay any purge amount set. Here, the court made no such finding. Thus, the order authorizing the suspension must be reversed.

Appellee argues that appellant agreed to the automatic suspension of his license should he fall behind in support payments. However, no agreement was made as to the terms of any purge provision. Without a purge provision, the coercive sanction becomes a criminal contempt sanction, requiring the due process protections of a criminal proceeding. See Bowen, 471 So.2d at 1277.

We recognize that this opinion may cause considerable uncertainty in the use of driver's license and other license suspensions in child support proceedings without the setting of a purge amount in accordance with the dictates of Bowen. However, we are bound by the clear language of Gregory.

Reversed and remanded for further proceedings.

FARMER, C.J., and GROSS, J., concur.

FootNotes

1. The language is expansive because International Union v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), discusses only civil fines and incarceration. It never mentions other civil sanctions.