Child Support

Determining the proper amount of child support can be far more complicated than many people think. It begins with consideration of the child custody arrangements. When one parent is granted physical custody of the child, the other parent is customarily required to pay that parent child support. But that’s only the starting point. The amount of time which the non-custodial parent spends with the child may affect how much he has to pay to the custodial parent.

A court will be required to consider the incomes and earnings of both parents in fixing the amount of support to be paid. Under the federal Child Support Enforcement Act, each state has developed guidelines for the payment of child support, based on the parents’ respective incomes and expenses. These guidelines vary from state to state, based on economic factors and other reasons. In most places, a child support amount can be determined by using a software program, a formula or a standardized procedure based on income percentages. However, hasty application of the software programs or other procedures may result in overstating or under-estimating the proper amount of support. It is important to talk to a lawyer about how child support will be impacted by payments for health insurance, unreimbursed medical expenses, child care and other school tuition, alimony and spousal support obligations, taxes, and mandatory payroll deductions (such as compulsory union dues).

In deciding how much child support one parent must pay another, judges in some states may exercise great discretion, applying a long list of factors that take into consideration virtually all of the child’s financial needs and the parents’ financial experiences. In other states, judges may have very little latitude in altering the amount of child support determined under the prescribed guidelines, as shown on the state’s software program or through the statutory formula recognized in the state. Still other judges may selectively apply statutory factors in specific cases, such as when parents are high-income earners, and they make an amount of money that exceeds the limits of the guidelines. Among the typical child support factors that a child will consider are the following:

  1. The needs of the child.
  2. The standard of living and economic circumstances of each parent.
  3. The child’s standard of living before separation and divorce.
  4. All sources of income and assets of each parent, including alimony or spousal support received.
  5. The earning ability of each parent.
  6. The educational background, training, employment skills, and work experience of each parent, and the length of time and cost of each parent to obtain training or experience for appropriate employment.
  7. The custodial responsibility for children including the cost of providing child care.
  8. The need and capacity of the child for education, including higher education; The age of the child and of each parent.
  9. The health of the child and of each parent.
  10. The income, assets and earning ability of the child.
  11. The responsibility of the parents for the court-ordered support of others.
  12. The reasonable debts and liabilities of each child and of each parent.

These factors vary from state to state, and one should not assume that all factors are considered by all judges in all jurisdictions.

Before a judge rules on child support, the parents will typically be required to produce copies of their tax returns and pay stubs. They will be asked in most states to complete a Statement or an Affidavit detailing their earnings and sources of income as well as their expenses and sources of debt. These forms are known by various names, such as a Financial Affidavit (in Florida), a Case Information Statement (in New Jersey), and a Statement of Net Worth (in New York).  These forms are filed with the court and swapped between the parties so that each party can examine the other’s sources of income and debt. Some cases present special circumstances, such as when a parent receives workers compensation or Social Security disability benefits or where a parent receives unemployment checks instead of paychecks from an employer.

A trained attorney should be asked to scrutinize the financial statements, tax returns and pay stubs to explore areas where one party may be attempting to mislead the court or falsify his or her income or debts. A party will not be permitted to lower his income levels by authorizing payroll deductions from his paycheck for savings accounts, credit unions, or other non-mandatory retirement contributions. Wage attachments ordered in other cases are also typically not considered in determining a party’s actual net income.

Even after child support is determined, a court may be required to adjust the amount of support based on any number of factors. These include, for example, whether the non-custodial parent is actually exercising the parenting time he was awarded; the equitable distribution of property; the amount of any fixed direct payments such as mortgage payments; the amount of any school tuition for children; the amount of tuition educational expenses for either parent to improve earning capacity; the special needs of gifted or disabled children; the financial obligations for elder care that existed before the filing of the support action; the tax advantages of paying for a child’s health insurance; the obligations of one or both parents to pay support to more than one family; and the cost a motor vehicle purchased or leased for the use of a child subject to the support order.

Income Imputation.  When a parent is willfully unemployed or under-employed, a court may also impute income to that party. When this is done, the court essentially determines how much the unemployed or under-employed parent should be earning based on his experience, education, qualifications and skills. In contested child support actions, the parents sometimes retain expert witnesses to testify as to whether the other parent can be employed at greater earning capacity.

There is no statute of limitations on seeking or modifying child support, except that a parent will no longer be required to pay support when the child is emancipated. In some states, a child is emancipated when he or she reaches the age of 18. In other states, the question of emancipation is an open question, and parents may be required to support their children while they attend college, as long as they continue to live at home or be dependent on the parents (even as the children age into their 20s).

A party receiving support or paying support may have grounds to change a child support order. A petition or motion for modification will be recognized when there is a significant change in financial circumstances. What constitutes a significant change in circumstances is a legal judgment based on factual circumstances.

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