How To Get Child Support
Typically it begins by identifying the father, often called establishing paternity. Once we know who the father is, a child support order is established and the child support agency can begin collecting and enforcing the child support order.
• Establish Fatherhood: If you were not married when your child was born, the first step is to – legally determining the father of the child. Many men will voluntarily acknowledge paternity. If a man is not certain that he is the father, the child support agency can arrange for genetic testing. These tests are simple to take and highly accurate. Either parent can request a blood test in contested paternity cases.
• Establish a Child Support Order: All states have official child support guidelines. The guidelines are used to calculate how much a parent should contribute to financially support his or her child. Your child support office will be able to tell you how support amounts are set in your state and can request medical support for your child.
• Enforce the Child Support Order: The most successful way to collect child support is by direct withholding from the obligated parent’s paycheck. Most child support orders require the employer to withhold the money that is ordered for child support, and send it to the state child support office. Your child support office can tell you about this procedure. At any of these steps, the child support office may need to know where the noncustodial parent lives or where he or she works. When a parent’s whereabouts are not known, it is usually possible for the child support office to find him or her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or the employer.
There are several ways we collect and enforce child support:
• Withhold income
• Deny Passports
• Intercept federal payments
• Set liens on property
• Withhold tax refunds
• Report child support debts to credit bureaus
• Suspend or revoke drivers, professional, occupational, and recreational licenses
How and where do I apply?
Contact your local child support office to apply for child support services. Your state may allow you to apply online.
Here are some things you might need to provide. Ask your local office for a complete list.
• Information about the noncustodial parent
• Birth certificates of children
• If paternity is an issue, written statements (letters or notes) in which the alleged father has said or implied that he is the father of the child
• Your child support order, divorce decree, or separation agreement if you have one
• Records of any child support received in the past
• Information about your income and assets
• Information about expenses, such as your child’s health care, daycare, or special needs
What does the child support program do?
State and tribal child support programs locate non-custodial parents, establish paternity, establish and enforce support orders, modify orders when appropriate, collect and distribute child support payments, and refer parents to other services. While programs vary from state to state, their services are available to all parents who need them.
The program’s mission is to increase parental support of children by:
• Locating parents
• Establishing legal fatherhood (paternity)
• Establishing and enforcing fair support orders
• Increasing health care coverage for children
• Referring parents to employment services, helping to build healthy family relationships, supporting responsible fatherhood and helping to prevent and reduce family violence
Roles Of The State And Federal Child Support Programs
State, tribal and local child support offices provide day to day operation of the program. They manage the child support caseload. The federal role is to provide funding, issue policy, ensure that federal requirements are met, and interact with other federal agencies that help support the child support program.
How to Calculate Child Support
Each state has different formulas that they use in determining how to calculate child support. There are some considerations common to all states, however, and the following questions will help explain how a court will calculate your or your spouse’s child support responsibilities. Child support is formulated at the state level, but some federal guidelines exist under the Child Support Enforcement Act. Because each state sets up its own child support system, there is considerable variation between states in how they calculate child support. However, most states evaluate the following criteria at a minimum:
• The financial needs of the child, including education, day care, insurance or any special needs
• The income and needs of the parent with custody of the child
• The income and ability to pay of the parent who is paying child support
• The child’s standard of living before any separation or divorce (although courts typically understand that it is difficult to maintain the same standard of living)
Parents are often obligated to detail their financial situation to the court, including monthly income and expenses.
How Can Custody Arrangements Impact Child Support Obligations?
Child support obligations depend on whether one party has sole custody or whether both parents are awarded joint custody. When one party has sole custody, the other party must typically pay child support, whereas the party with custody is meeting their obligation through the support itself. When joint custody is awarded, support obligations are based on how much each party earns and the percentage of time the child spends with each party.
Do courts consider loan payments and taxes when establishing someone’s ability to pay child support?
In general, when establishing someone’s ability to pay, courts take a parent’s gross income and subtract out any mandatory deductions, arriving at a “net income”. Typical mandatory deductions include things like Social Security and income taxes, whereas things such as loan payments are not considered mandatory. Some courts will consider loan payments and their basis when determining a parent’s ability to pay, but that is entirely within the courts’ discretion. The rationale is that it is more important to pay for your child’s support than to pay back that loan you took out to repair your bathroom. Another typical mandatory expense in many states is existing child support obligations. If you’re already paying child support, it’s likely you can get this included as a mandatory deduction. Finally, courts will often consider the paying parent’s basic necessities such as food, clothing and shelter when determining how much they can afford to pay.
Do Courts Evaluate How Much I Can Earn Versus What I Do Earn?
Many states allow a judge to consider what you could earn versus what you actually earn when determining how to calculate child support amounts. The rationale is that a parent should not be able to avoid supporting his or her child by taking a “lesser” paying job and that the child’s needs are always paramount. For example, if you left a good paying job to go to law school, a court may establish your payments based on your old job, even if you make less coming out of law school. It may seem unfair, but the primary principle among family courts is that the child’s future is more important than a parent’s desires or dreams. If you and the child’s other parent agree, you can change it, but even agreed-upon modifications must be approved by a judge. If the other parent doesn’t agree, you can request a court to hold a hearing, where you can lay out your justification for altering the existing child support arrangement. To discourage constant modifications and court hearings, a court will typically not modify an agreement unless a party can show a change in circumstances. Typical changes that can result in modifications to a child support order include:
• Receipt of additional income
• Job change of either parent
• Cost of living increases
• Disability incurred by either parent
• Increased needs of the child
It is also possible to get temporary modifications. Typical circumstances that require temporary modifications include:
• The child has a medical emergency
• The paying parent has a temporary inability to pay (loss of job or illness)
• Temporary hardship of the recipient parent
Cost Of Living Adjustment Clause (COLA)
A COLA clause adjusts the amount of child support against some economic indicator (e.g., the Consumer Price Index) to reflect increased costs of living over time. Most judges will include this in their order to eliminate the need for future court hearings to increase child support as costs of living increase. Financial matters can be tricky, especially when they involve your child and your paycheck. The laws of each state are different and the formula used for calculating child support can be confusing. Having legal representation can make the process more transparent and less stressful. Speak with an experienced family law attorney in your area about your child support claim.
How Judges Decide the Amount
Using State Guidelines
Every state has a formula for calculating child support, and judges use those formulas to determine how much child support will be paid in each case. The formulas themselves can be quite complicated, but it’s pretty easy to estimate what your child support might be by using free online calculators. (Check for your own state’s calculator by entering your state’s name and “child support calculator” into a search engine, or use the simplified calculators at alllaw.com. The biggest factor in calculating child support is how much the parents earn. Some states consider both parents’ income, but others consider only the income of the noncustodial parent. In most states, the percentage of time that each parent spends with the children is another important factor.
Most states consider at least some of these other factors in calculating child support:
• child support or alimony either parent receives from a previous marriage
• whether either parent is paying child support or alimony from a previous marriage
• whether either parent is responsible for children from a previous (or subsequent) marriage
• which parent is paying for health insurance, and the cost
• which parent is paying day care costs, and the cost
• whether either parent is required to pay union dues or has other amounts deducted from paychecks
• ages of the children
• whether either parent receives irregular income such as bonuses or incentive pay, or expects severance pay or other lump-sum payments, and
• whether either parent lives with a new partner or spouse who contributes to household expenses.
Most courts believe that child support is more important than alimony and calculate child support first, and then evaluate what’s left in setting alimony. And states define “income” differently some use gross income, some use net, and some include gifts, bonuses, and overtime while others do not. If a parent has significant investment income, it may be counted as income for purposes of calculating child support.
Setting Support Higher or Lower Than the Guidelines
If you think that the guidelines shouldn’t apply for some reason but your spouse doesn’t agree with you, you’ll have to tell it to the judge. Judges are allowed to deviate from the guidelines if there are good reasons. For example, if you’re the paying parent, you might argue that because you are paying for your kids’ private school and all of their uninsured medical expenses, the support payment should be less than the guideline amount. (But even if you’re providing some extras, the base amount of support has to be enough for the necessities.) Or if you have custody of a disabled child who requires extra care and has unusual medical expenses, you might think the support paid to you should be higher than the guideline amount. Be prepared to show the judge documentation of your position. A budget showing all of your expenses relating to the kids will impress the judge with your attention to their needs and the seriousness of your position.
Here are some circumstances that might cause a judge to set support above or below the guideline amount:
• The noncustodial parent can afford more. If the paying parent earns a great deal of money, has other significant assets, or receives in-kind compensation like employer-provided housing, the judge may order a higher-than-guideline payment.
• The guideline amount is more than what’s needed. If the noncustodial parent makes so much money that the guideline support amount would be much more than is needed to pay for the children’s regular expenses, the judge might reduce the amount.
• The paying parent can’t pay. If the noncustodial parent earns very little money, has other expenses that make it impossible to meet the guideline amount, or has recently lost a job, the court may order a lower support amount. The judge is also likely to order the parents to return to court at a set time so that the judge can review their current circumstances.
• A child has special needs or interests. A child with unusual medical, psychological, or educational needs may require a higher amount of support. Also, if your child is an avid musician or involved in sports or other activities, you can ask the judge to order the paying parent to pay an additional amount so that the child can continue a favorite activity.
• The paying parent is shirking. A parent’s earnings sometimes don’t reflect true earning potential—for example; say a parent is trained as a lawyer but works as a bookstore clerk. In that case, especially if the judge believes the parent is purposefully avoiding paying support by taking a low-paying job; a court might calculate support based on what the parent could be earning (that’s called imputing income).
What Does the Child Support Formula Include?
• Income: The first and typically most important factor in every child support case is each parent’s income. At the beginning of every case, both parents most exchange and submit the following the court:
1. recent W-2 tax document
2. paystubs to show hourly rate or salary, hours worked, and tax exemptions, and
3. any other documents showing income, which can include wages, overtime pay, tips, gratuities, payment from an IRA, rental income, bonuses, commissions, or any other money from all employers.
If one parent is self-employed, the court will review tax returns and business tax returns to determine income. One of the most contentious aspects of child support determinations is when one parent believes the other is underemployed or voluntarily unemployed. Family court judges can evaluate whether one parent is working to the fullest extent. If a judge finds that a parent is purposely earning less, or is voluntarily unemployed, the court may impute that parent’s income into the formula. Imputation means that the court will calculate what the parent should or could be earning if applying education and job skills appropriately and will use that number as that parent’s income in the formula.
• Dependents: The court will request dependency information from each parent before calculating support. If one parent has other children and is legally obligated to support the other children, the court will consider this in the outcome for any other child support case.
• Overnight Visits: Most child support formulas include the number of overnight visits with each parent in the end calculation. The point of overnight visits in the formula is to give credit to each parent for the time they are financially responsible for the child. For example, if one parent has sole physical and sole legal custody of the child and the other only sees the child once per week for a non-overnight dinner visit, the court must allocate the proper amount of support to the custodial parent. On the other hand, if both parents equally share financial responsibility for the child throughout the year and share physical and legal custody, the recipient parent may only need a small child support award to support the child financially. It’s a common misconception that if parents share physical and legal custody, neither parent will receive or pay child support. Although overnight visits are one factor, the court also must consider the remaining factors such as income, deductions, health care, child care, and dependents.
• Health Care Costs: The parent paying for health care for the child will almost always receive a credit in the child support formula for the amount paid for the child’s insurance. You must be able to provide evidence of the payroll deduction or amount you pay each month in health care for the court to consider this in your case.
• Child Care Expense: Child care is, no doubt, one of the most expensive aspects of raising children today. In many states, full-time daycare can cost anywhere from $10,000-$50,000 per year. If one parent carries the burden of child care throughout the year, the court will credit the paying parent in the formula.
• Other Deductions: If a parent pays spousal support or child support for other children, the court will also add this information into the formula before determining a final number.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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