In Florida, both parents have an obligation to support a child until that child reaches the age of 18, the age of majority in Florida. Fla. Stat. § 61.13(1)(a)(1)(a). However, under Florida Statute Section 743.07(2), child-support can be extended for children beyond the age of 18 under two separate and distinct circumstances.
Option 1: Will your child turn 18 while still in high school?
If the answer to this questions is “yes,” you may be able to extend the child support obligation trough the expected date of graduation. The wrinkle to this is that the child must reasonably be expected to graduate before he or she turns 19 and the child must be performing in good faith. The statute provides that child support may be extended if the child is “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.” If these requirements are met, child support may be extended through the expected date of graduation.
Option 2: Does your child have special needs?
Statute 743.07 and Florida case law provide that child support may be required beyond the age of majority for child who is unable to support him or herself due to a mental or physical incapacity. Under the language of the statute, child support may be extended beyond 18 if the child has special needs that renders him or her “dependent” when such “dependency is because of a mental or physical incapacity which began prior to such person reaching majority.”
It is important to note that the child mental or physical incapacity must begin before the child turns 18. Thus, if your minor child has special needs at time of divorce, it is best practices to address extended child support in the original support order. But if extended child support of a dependent child it is not addresses in original support order, the parent who wants to extend the child support must file a modification petition with the court before the child’s 18th birthday. The failure to file the petition before the child turns 18 is fatal to the parent’s request to extend child support. This is because once the child turns 18, the court does not have jurisdiction to extend child support, regardless of the basis or the severity of the incapacity.
So what happens if your child is “dependent,” but the request to extend the child support was not filed before the child turned 18? The adult dependent child may still have recourse. If the child turns 18 before the petition is filed, the special needs child may still be able to get support. To accomplish this, the child, or a guardian appointed pursuant to chapter 744, Florida Statutes, must file his or own action for support, as the right to support for an adult dependent child belong to the child and not the parent. See Brown v. Brown, 714 So. 2d 475 (Fla. 5th DCA 1998). The custodial parent may join the adult dependent child in such an action for support.
It is important to remember that a special needs adult child can be dependent due to a mental or physical incapacity for purposes of parental support, but that same individual can be legally independent and competent for all other purposes. See Harper v. Harper, 608 So. 2d 517 (Fla. 2d DCA 1992). The “dependency” requirement for purposes of extending the parental support obligation is broader than the “dependency” or “incompetency” requirement under Chapter 744 and the definition of “disability” under the Social Security Administration Act.
