Child Support Laws

The State of Florida, Department of Revenue, Office of Child Support Enforcement (DOR) contracts with a legal service provider (an attorney) to provide legal services to the Department. This attorney may be a government attorney such as the State Attorney or Attorney General, or may be a private attorney hired to represent Department of Revenue.  The legal service provider that has a contract with the Department of Revenue  represents ONLY the State of Florida, Department of Revenue, Office of Child Support Enforcement and not the clients of the Department of Revenue individually.  An individual client of the Department of Revenue has no personal legal representation during court proceedings unless that individual hires their own legal counsel.

Florida Statute (2010), 409.2564(5) provides that “When the Department (Department of Revenue) has undertaken an action to establish, enforce, or modify a child support obligation in a Title IV-D case, an attorney-client relationship exists only between the Department and its program attorney.”  Additionally, Florida Statute (2010), 90.502(5) provides that “Communications between a department attorney and a person who receives services from the department in the child support enforcement program are confidential and privileged “as if” there were an attorney-client relationship between them, meaning that the attorney must keep the confidences of the parent, but the parent is not, in fact, the program attorney’s client.” Rule 12.040, Florida Family Rules of Procedure provides that

An attorney for the State’s Title IV-D child support enforcement agency who appears in a family law matter governed by these rules shall file a notice informing the recipient of Title IV-D services and other parties to the case that the IV-D attorney represents only the Title IV-D agency and not the recipient of IV-D services. The notice must state that the IV-D attorney may only address issues concerning determination of paternity, and establishment, modification, and enforcement of support obligations. The notice may be incorporated into a pleading, motion, or other paper filed with the court when the attorney first appears.

This contractual arrangement between the Department of Revenue and its legal service providers is puzzling and confusing to many clients of the Department of Revenue because clients believe they are being represented by legal counsel as if they had retained a private attorney to protect their interests and the interests of their child or children. This is simply not the case.

An interesting Court opinion exists at 43 So.2d 952, (Fla 1st DCA 2010),  Florida Department of Revenue, Petitioner, v. Calvin R. Collingwood and Tabitha Gray, Respondents. The father in this case was obligated to make child support payments, including child support arrearage payments, to the Department of Revenue, because the mother was receiving public assistance from the State of Florida. In 2007, the Department filed a contempt proceeding against the father, which the court dismissed at the mother’s request. In 2008, the Department filed a petition seeking a decrease in the father’s future child support obligation based upon a significant reduction in the father’s income and served the mother with a petition to modify child support. The mother asked the Court to prohibit the Department from representing the father, based upon the conflict of interest, because the Department had previously filed the action against the father on her behalf. The Court granted the mother’s motion and prohibited the Department from representing the father. The appellate court found fault with the trial court’s opinion and determined the Department is required by law, Florida Statute, (2010) 409.2564(11) to review a child support obligation every three years to determine whether the amount continues to be consistent with current child support guidelines, “and may seek adjustment of the order if appropriate under the guidelines schedule.” The statute does not provide that the Department may bring such an action only if the paying parent is current on his or her payments, or only if the paying parent is seeking an upward adjustment of child support. The Department is authorized by law to bring such an action and thus is not inequitable as a matter of law.” The appellate court’s opinion allowed the Department of Revenue allowed the Department to resume proceedings to seek reduction of the paying parent’s child support obligation.

The Department of Revenue can and does simultaneously seek to reduce child support by the filing of a petition for modification while at the same time continue with enforcing the paying parent’s obligation to pay ongoing child support until such time as a modification review and litigation is completed. The Department will file a petition to modify child support, serve the parent receiving the child support with a summons and complaint for modification, but will not assist the parent receiving the child support with the court proceedings that ensue, even if the parent receiving the child support is also a recipient of public assistance from the State.

The public assistance recipient legally subrogates his or her rights to the State of Florida  and appoints the department as his or her attorney in fact to act in his or her name, place and stead. Despite this subrogation, the State will sue the public assistance recipient to lower the current child support and will provide no assistance to this public assistance recipient in defending the modification petition or in preparing the case for trial.

This decision by the State seems to be contrary to Florida Statute 409.2561 that states:

(2)(a)By accepting temporary cash assistance or Title IV-E assistance, the recipient assigns to the department any right, title, and interest to support the recipient may be owed:
1. From any other person up to the amount of temporary cash assistance or Title IV-E assistance paid where no court order has been entered, or where there is a court order it is limited to the amount provided by such court order;
2. On the recipient’s own behalf or in behalf of another family member for whom the recipient is receiving temporary cash or Title IV-E assistance; and
3. At the time that the assignment becomes effective by operation of law.
(b)The recipient of public assistance appoints the department as her or his attorney in fact to act in her or his name, place, and stead to perform specific acts relating to the establishment of paternity or the establishment, modification, or enforcement of support obligations, including, but not limited to:
1. Endorsing any draft, check, money order, or other negotiable instrument representing support payments which are received on behalf of the dependent child as reimbursement for the public assistance moneys previously or currently paid;
2. Compromising claims;
3. Pursuing the establishment or modification of support obligations;
4. Pursuing civil and criminal enforcement of support obligations; and
5. Executing verified complaints for the purpose of instituting an action for the determination of paternity of a child born, or to be born, out of wedlock.
(3) The department shall be subrogated to the right of the dependent child or person having the care, custody, and control of the child to prosecute or maintain any support action or action to determine paternity or execute any legal, equitable, or administrative remedy existing under the laws of the state to obtain reimbursement of temporary cash assistance or Title IV-E assistance paid, being paid, or to be paid.

If you find yourself involved in litigation with Department of Revenue, you should consider seeking legal representation for yourself. Please contact the Sarasota Child Support Attorney Law Office of Steven P. Johnson for a free initial consultation.