When Can Your S-Corporation Income Be Used in Child Support Calculation?

Section 61.30(2)(a)(3), Florida Statutes (2013) (“Chapter 61”) provides that income for purposes of calculating child support shall include business income from close corporations.            

            Florida Supreme Court case, Zold v. Zold, 911 So. 2d 1222 (2005) reviews the issue of whether the “pass through” income of an S-corporation that not “distributed” to shareholders constitutes income within the meaning of Chapter 61.[1]  The Court finds there is no bright-line rule that such income is or is not to be included in child support calculations.  Id.  The Court states that if such income has been retained for corporate purposes, then it cannot be included in a child support calculation because it is not “available” income.  Id. at 1231.  However, the Court states that where such income has been retained for non-corporate purposes, such as to shield the income from the reach of the other spouse during dissolution, the improper motive for its retention makes it “available” or “business” income under the meaning of Chapter 61. Id. at 1231-32.  The Court points out that its conclusion is consistent with Rosen v. Rosen, that “proceedings under Chapter 61 are in equity and governed by basic rules of fairness;” that the Court should not allow a shareholder of an S-corporation to reduce the amount of available income by manipulating the retention of pass-through income for his personal benefit.  Id. at 1232.  The Court states the “potential for manipulation is greater if the spouse is a sole or majority shareholder who, by virtue of his or her ownership, has more control than does a minority shareholder over whether income is retained or distributed by the corporation.”  Id.  The Court states that the burden is on the shareholder party to prove the S-corporation income was properly retained for corporate purposes, rather than impermissibly retained to avoid child support obligations. Id. at 1233.

Of course, any distributions actually made from the S-Corp will be automatically counted as income.

 


[1] Zold cites several cases on this topic from the lower courts which conflict with each other.  Zold is the most recent and controlling case which creates the current rule to be used when determining under what circumstances S-corporation income should be used in a child support calculation.