| The address for this site is http://www.divorcelawinfo.com/ |
|
Child Support Issues
An unfortunate fact of economic life is
that a family cannot live as cheaply divided as it can together. Thus, after a
divorce, the living standard of the entire family is often lowered and the court
often finds itself in the unenviable position of having to divide a scarcity of
resources. Also, there is the problem of changing the child support order to
meet changing needs of children and enforcing court orders against fathers and
mothers who either refuse to make court ordered child support payments or who
cannot do so due to circumstances beyond their control. These problems, when
added to the issue of custody, visitation and the division of property in a
divorce, keep the family law courts of the country packed to capacity.
Both parents have a legal duty to support
their child according to their ability to do so. Most jurisdictions have child
support guidelines in effect, which provide a formula for calculating child
support based on a proportion of each parent's gross income. These guidelines
are applied unless a party can show that application of the guidelines would be
unjust and inappropriate in a particular case.
[back to top of page]
During a marriage or committed
relationship, such issues are rarely a concern for the court. But when parents
divorce or cease to live together with their children as a family, the courts
are usually required to establish by decree the amount of child support a
non-custodial parent must pay. Like the issue of custody, this can be reached by
agreement or by fighting it out in front of a judge. Child support payments,
like alimony, may be incorporated into the divorce judgment or may be provided
for in a marital separation agreement. You can avoid making child support a
contested issue, and the legal expense of litigating this issue before a Master
or a Judge, by both parents agreeing to the appropriate amount of child support
and making this agreement part of a marital separation agreement.
[back to top of
page]
There are several parts to most child
support orders in almost all jurisdictions. Child support orders are issued by
courts when the parents cannot agree on a fair child support payment and then
incorporate that agreement into a marital separation agreement. First and
foremost, the paying parent will almost always be ordered to make a monthly
money payment to the custodial parent. The order will typically read, in part,
as follows:
Father (name) is ordered to pay
directly to mother (name) as and for child support of Tom and Mary, the sum of
$300 per month per child for a total of $600, payable one-half on the first and
one half on the fifteenth day of each month, said payments to continue until
each such child shall die, reach majority, become emancipated or until further
order of court.
Notice the following about this portion
of the child support order:
It Requires a Direct Monetary Payment
to the Custodial Parent
Many paying parents resent the child
support order because it is made directly to the custodial parent and not the
children. Because of this, some refuse to make the payments because they see it
as a form of alimony. However, this is not true. The direct payments are to be
used to pay for the vital needs of the children, such as rent, food, and
clothes.
The Court Retains Jurisdiction to
Change the Order.
A child support order is not set in
concrete but is subject to change should future conditions warrant. Thus, either
parent may petition the court to raise or lower support should conditions
warrant.
Payments Automatically Terminate When
the Child Reaches Majority, Dies or Becomes Emancipated.
The purpose of this language is to provide
for an automatic end to the support obligation when the child reaches majority
or dies. However, the issue of emancipation is often in dispute and may require
a court determination.
A child support order is as enforceable as
any other court judgment or decree. Thus, a parent who is not paid child support
can use each and every legal tool available to enforce the order, including wage
garnishments, wage assignments, contempt of court decrees and the seizure of the
non-payor's property by writ of execution.
The child support decree is not limited to
an order of direct money payments to the custodial parent. Other areas of
providing for the children's needs are also usually addressed. The following
language is an example of a typical child support order:
As and for additional child support,
father (name) is ordered to maintain his children as beneficiaries on his health
and life insurance policies available through his employment. Father is further
ordered to pay for one-half of all uninsured medical, dental and ophthalmologic
services provided for the children.
As and for additional child support,
father shall pay directly to the ABC Daycare Cooperative, the full cost of
afternoon after-school day care. However, should the children be enrolled in
morning day care, such expenses shall be the sole responsibility of the mother.
As and for additional child support,
father shall pay the round-trip plane and other reasonable costs of transporting
the children for visitation with father, as provided in the visitation
provisions of this order. However, during visits of two weeks or more, the
father's child support payments to mother shall be reduced by $50 per month per
child.
These clauses illustrate the flexible
nature of child support orders and the wide latitude a court has in creating a
support arrangement it deems in the best interests of the children. (The court
will try to maintain the lifestyle the children enjoyed before the divorce if
the parents' finances permit.) Thus, a parent can be ordered to maintain
insurance for the benefit of children, pay medical bills, private school
expenses, day care costs, transportation bills, music lessons and to pay or
partially pay for other aspects of a child's day-to-day life, activities and
upbringing. The amount of support can also be reduced should the non-custodial
parent have physical custody of the children for at least 35% of the time.
[back to top of
page]
Generally, child support payments are for
the ordinary expenses of food, shelter, clothing, education and medication needs
for the children only. In determining an award of child support, a court will
look at all relevant facts upon the following issues:
The Needs of the Children.
For example, a sickly or developmentally
disabled child will often require a higher level of support than a healthy
child.
The Age of the Children.
Infants and younger children often cost
less to support than older children.
The Ability of the Non-custodial
Parent to Pay.
The court is limited in awarding child
support by the ability of a parent to pay based on income from all sources.
The Earning Capacity of the Custodial
Parent.
Both parents have the duty to support
their children, not just the paying parent. Thus, the earnings or earning
capacity of the custodial parent which are available to provide support for the
children, and perhaps that of their new spouse, will also be considered when
determining child support levels.
The Other Responsibilities of the
Parents
The other lawful responsibilities of both
parents will also be looked into in determining child support. For example, if
the non-custodial parent is paying child support from a previous marriage (a
rather common occurrence), the court will take that obligation into
consideration. Necessities of life, such as rent and food will also be taken
into account by the court. However, the court will not reduce child support
payments to make it easier for the parent to pay discretionary obligations. For
example, a parent cannot provide for a charity or buy an expensive car at the
expense of providing for his or her own children.
To assist the court in determining the
proper amount of support, both parties will be required by the court to prepare
a financial declaration that is signed under penalty of perjury. Each parent
will be required to fully disclose their income (from all sources frequently
including money earned by a new spouse or live-in-lover), the nature and extent
of their property holdings such as bank accounts, investments and real property
and their financial obligations. The court will rely heavily on these documents
in making the order and thus it is in the best interests of the children that
the declarations be filled out completely and honestly.
Child support hearings are often
adversarial. That means that when the parents cannot agree on the support order,
(sometimes after completing mediation), the court, through a Master's hearing,
will hold a hearing to decide the issue. (This is sometimes done in a chambers
conference to save time.) At the hearing, each spouse (or their lawyer) will
have the opportunity to cross examine the other on issues relevant to the
support issue and each can subpoena documents and call witnesses to support his
or her position as to the amount of child support that should be paid. Child
support orders can also be appealed, although the likelihood of success is very
slim.
In most states courts use statutory
guidelines in all cases in which child support is sought. Although use of the
guidelines is mandatory and there is a presumption that the guidelines amount is
the correct amount to be awarded, the presumption is rebuttable.
The mathematical computation to determine
the Guideline amount is fairly simple in almost all jurisdictions. A typical
formula would be:
There is usually a separate formula for
situations where the parents share physical custody of the children.
[back to top of
page]
A court that does not have proper
jurisdiction (power) does not have the legal authority to order child
support. In order for a court to have jurisdiction to compel a parent to pay
child support, it must have personal jurisdiction over the parent.
Personal jurisdiction means that the parent from whom support is sought must
have sufficient contacts with the state in which the suit is brought.
[back to top of
page]
Once a valid child support order is
entered, that state continues to have the power to award child support even
though it no longer has contacts with the supporting parent or children.
[back to top of page]
Parties frequently settle divorce or
paternity cases between themselves without going to trial. Parties may include
in their settlement agreement an amount of child support to be paid by the
non-custodial parent to the custodial parent. However, even when the parties
agree to an amount of child support the trial court is required under the
guidelines to determine the guideline amount, compare it with the amount of
support agreed upon by the parties, and not make an award less than the
guideline amount unless convinced that award of less is in the best interest of
the child. There can be no variance of the guideline amount if the court does
not give its reasoning on the record in accord with the requirements of the
law.
[back to top of page]
Hugh and Lucy divorced. In a marital
settlement agreement, they agreed that Lucy would have custody of the children.
However, Hugh would only agree to pay $50 per month in child support, despite
the fact he earned $2000 a month. Rather than fight Hugh, who had threatened a
custody fight if she would not accept the deal, Lucy agreed to the low support
level. When Lucy and Hugh brought their "agreement" before the Master, the
Master refused it because the support level was too low.
[back to top of
page]
At one time, majority was reached at age
21. When it was reduced by law to age 18 in many states, a new problem was
presented: Could the court order a parent to pay for his or her children's
college expenses as child support, despite the fact that they would be over 18
when the payments were made? In most states, that question has been answered in
the affirmative - if the parent has sufficient resources - although the courts
are not required to make such orders.
[back to top of page]
Unlike alimony , payments of child support
cannot be deducted from the payer's income taxes. However, you pay more than 50%
of the actual costs of child support, you can claim the child as a dependent to
save money on taxes. Parents often agree on the issue of the dependents
deduction so that both don't make the claim which could trigger an IRS audit.
[back to top of
page]
The court that makes the original child
support award is said to have continuing jurisdiction to modify the order
as conditions warrant. That being so, either parent may request the court to
change the order throughout the duration of the child's minority. Modifications
will not happen automatically. One of the parents must request the change by a
formal motion to the court.
Child support orders cannot be changed on
caprice or because a court thinks that "it is time." It must be based on
evidence proving that sufficient grounds exist to make the change. This usually
requires a showing of changed circumstances in almost all jurisdictions
from the facts as they existed at the time that the last order was entered. (In
the many years a child support order remains effective, the parent's
circumstances may change many times and thus so may the child support order.)
Many different scenarios can create
changed circumstances. For example, if the paying parent has had a large
increase in income, the court can order the child support increased. Or, if the
child's needs grow, such as if the child becomes ill or disabled, the amount of
support can be ordered raised. Sometimes the mere passage of time creates the
changed circumstances. For example, as a child grows older, it becomes more
expensive to buy clothes, food and other necessities. These increased expenses
can be enough to justify a raise in the support order.
Support can also be reduced upon a proper
showing. For example, if the custodial parent inherits money, gets a large raise
or otherwise has an increased ability to support the children, support payments
may be reduced. Or, if the paying parent loses his or her job, the court can be
asked to reduce support during the period of unemployment.
A mistake many parents make is to reach
informal oral agreements modifying child support. This often provides the seed
for future discord. For example, the following scenario is very common:
Peter paid his former wife Alice $400 a
month to support their son. When Peter was laid off, he called Alice and said,
"I just got laid off. I can't afford to pay $400 right now." Alice responded,
"Okay. Pay $100 for now."
Ten months later, Peter was rehired and
raised his support payments back to $400. During his layoff, Peter had made 10
payments of $100. Alice called and told Peter she expected him to pay the $3000
he had not paid during the layoff. Peter replied that he did not owe the money
because they had agreed to the child support reduction during his layoff. Alice
disagreed. She claimed that she had not given up the right to $400 a month but
had merely permitted Peter to defer full payment until he was rehired.
When Peter refused to pay, Alice took
him to court. The judge ruled that the evidence did not support Peter's claim
that he was excused from $300 per month of his support during his layoff and he
was ordered to pay the $3000 to Alice at the rate of $100 a month, in addition
to the usual payments of monthly support.
The problem with oral agreements is that
they are often vaguely worded and the memories or understanding of the parties
may often differ. Thus, any agreement by parents to modify child support should
be put in writing so that there are no misunderstandings later on. It is also a
good idea to have a judge sign a court order based on the agreement.
[back to top of
page]
A major headache for custodial parents,
children and society is created when a parent refuses to pay his or her court
ordered child support. This is a serious problem of national dimensions. A
recent study found that less than half the parents awarded child support receive
payment in full. In 1989 alone, $4 billion dollars that was owed in child
support was not paid. This failure on the part of non-custodial parents -
usually but not always fathers - is a major cause of poverty in children. This
not only affects the families but has an indirect impact on the society who must
finance poverty programs to assist those in need.
Every state has established a child
support enforcement agency that can assist you in collecting child support from
your spouse. This agency has responsibility for collecting child support for
families receiving public assistance, and also, upon application for non-public
assistance families. Applicants for public assistance must assign child support
rights to the state and must help locate the parent absent from the home.
Failure to cooperate may result in the denial of public assistance.
In almost all states, services are
available to Non-public assistance parents by the payment of a non-refundable
$20 fee. If you are representing yourself, and you are not on public assistance,
applying to the child support agency in your county for assistance is an
excellent method of obtaining legal representation at minimal cost (payment of
$20.00 fee).
The custodial parent has many tools
available to enforce child support orders, all of which should be considered if
payments are not being made:
[back to top of
page]
Nonpaying parents often hide from the
custodial parent in order to avoid their child support obligation, often going
so far as to move out of state to avoid their responsibilities. Such abandonment
has caused many parents to go on welfare.
In order to remedy this problem, the
federal government has created the Parent Locator Service, which allows
the resources of the federal government including the Social Security
Administration and the Internal Revenue Service, to be used to locate a
nonpaying parent's employer. Once found, the custodial parent or the state can
enforce the child support order and collect unpaid support. The law also permits
the IRS to pay child support arrears from tax refunds the nonpaying parent may
be owed by the government. (The law also requires the states to establish a
Parent Locator Services.)
[back to top of page]
Many states allow the court to order an
employer to make direct payments to the custodial parent from the wages of the
supporting parent. This procedure is known as a wage assignment. The wage
assignment can be issued upon proper application by the court and served on the
paying parent's employer. Once implemented, the employer will deduct child
support like any other deduction from the paying parent's paycheck and send the
money directly to the custodial parent. This is a very valuable tool - if the
nonpaying parent holds a steady job.
[back to top of
page]
If a person willfully disobeys a lawful
child support order, he or she can be jailed for contempt of court. The civil
contempt action is brought by the custodial parent. The court clerk will have
the proper forms. After that, the nonpaying parent will have to be served with
process since he or she has the Constitutional right to appear at the hearing
and present a defense. If the nonpaying parent is served with process and does
not appear, the trial court will order a bench warrant issued for his or her
arrest.
If the court finds beyond a reasonable
doubt that the parent has willfully failed to pay pursuant to a valid child
support order, the court can order the nonpaying parent jailed. (A parent who
can show that they did not have the ability to pay will not be found in contempt
of court, even though he or she will continue to owe the money.)
Often, the mere threat of jail is
sufficient to pry open the recalcitrant parent's pocketbook. However, in severe
cases, parents will be jailed and often the jail sentence will be open-ended,
terminating only when the proper payment has been made.
[back to top of page]
All states also have criminal statutes on
the books to punish parents who refuse to pay their child support. If the
custodial parent complains to the district attorney's office, it may seek an
indictment against the nonpaying parent in criminal court. If the defendant is
found guilty, he or she may be jailed. Or, the guilty parent may be put on
probation and allowed to remain free if he or she pays all back child support
and makes all future payments in a timely manner.
[back to top of
page] |
