Divorce Litigation

Introduction to Child Support 

 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. 


Establishing Child Support PaymentsDuring 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.  

The Nature of the Child Support OrderThere 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 ParentMany 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. Child Support Is an Enforceable Order of the Court 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. 

How the Court Determines the Amount of Child SupportGenerally, 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 ParentsThe 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: ·  1. Determine the gross monthly income of each parent.  ·  a. Minus: alimony and child support paid to a third party and alimony paid in this case;  ·  b. Minus: medical insurance paid for the child;  ·  c. Plus: alimony paid in this case  ·  d. Equals the adjusted income.  ·  2. Determine the percentage of each parent's adjusted income to the whole.  ·  3. Obtain the basic child support amount from the table  ·  4. Add to the table amount (if relevant):  ·  a. work related child care;  ·  b. extraordinary medical expenses;  ·  c. and educational expenses;  ·  5. Equals the total support obligation  ·  6. Divide the total support obligation according to the percentage total for each parent which is the amount which is presumed to be correct but which is rebuttable and may be overcome.  There is usually a separate formula for situations where the parents share physical custody of the children. 

Only the Proper Court Has the Power to Order Child Support.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.  

A State that Entered a Valid Support Order Continues to Have the Power to Modify Child Support.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. 


Parents Can Agree On the Level of Support.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. 


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.  

Courts Can Order Payment of College Expenses Even Though the Child Has Reached Majority.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.


Child Support Is Not Tax DeductibleUnlike 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.  

Modifying Child SupportThe 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.  

Enforcing Child SupportA 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:  

Use the Government's Parent Locator ServiceNonpaying 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.)


Obtain a Wage AssignmentMany 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. 

Request a Writ of Execution·  A child support order can be enforced like other court judgments. If the nonpaying parent has assets such as real property, bank accounts, stock, a paid-off car or other property, the property may be seized upon proper application to the court. If you choose to represent yourself, you will find form books in your local law library that will have the proper wording of the documents and will explain the procedure for applying for a contempt of court citation, wage assignment, or writ of execution in your state. If this method of enforcing child support is chosen, a pro se litigant is well advised to retain the services of a competent attorney or pursue enforcement through the State Child Support Enforcement Administration.  ·  If the pro se litigant chooses to forward on his or her own the litigant should be aware that all states provide a wide variety of means to execute on judgments (defined as a dollar amount which has been reduced to a judgment by the court).  


Bring a Civil Contempt of Court Action.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.  

Seek a Criminal ProsecutionAll 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.   

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