Whether a couple has a child together through birth or adoption, both parents must legally contribute to the financial support of that child. It doesn’t matter if the parents are no longer legally married, living as a couple, or if they never lived as a couple. When the child lives primarily with one parent, the law requires the non-custodial parent to pay a set amount in child support each month.
The child support division in 40 states, along with the Virgin Islands and Guam, use the income shares model to determine the child support obligation of the non-custodial parent. As the name suggests, this method considers the current income of each parent along with the projected amount of spending on their child if they continued to live under the same roof. A family court judge uses this figure and sets the child support amount based on the number of children the couple has in common.
Under this model, the judge hearing the case can set the amount five percent above or below the recommended guidelines based on his or her own discretion. Should the judge wish to go outside of this +/- five percent range, he or she is required to write a report explaining the reasons for this decision.
Parents with Minor Children Must Submit Separate Affidavits
Family law in income shares states require both parents in divorce or separation scenarios to complete a financial affidavit that lists all types of individual income and expenses. The judge will review the completed form of each parent and provide the other parent with a copy. Each parent needs to list all income sources for the first section. While this will include wages from a job for most people, it could include some of the following as well:
• Self-employment income, less typical business expenses
• Real estate proceeds
• Alimony from this or a previous divorce case
• Social security income
• Unemployment or re-employment insurance
• Any interest income
• Any type of retirement income
• Disability income
• Rental income
• Extra income from work such as overtime pay, tips, commissions, or bonuses
One reason that income shares states require so much information is that some parents try to hide income during child support determination. Some may also intentionally accept a position that pays much lower than they could reasonably be expected to earn with their level of education and experience. Family law judges can impute a parent’s income for this very reason.
When a judge imputes income, it means that he or she figures the child support based on the underreporting parent’s earning potential, not his or her current income. However, the judge can only do this if he or she first determines that the underemployment is voluntary. Another time a judge can impute income is when one of the parents doesn’t submit a completed affidavit.
Allowable Deductions from Income
After calculating each parent’s gross income, the family court judge then determines the legal deductions that each of them can take. This reduces the parent’s available income and thus can lower the child support obligation. State statutes currently allow for these deductions from income:
• All payroll or self-employment taxes, including federal, state, social security, and Medicare
• Federal insurance contributions
• Alimony paid to the other spouse in this divorce case or to a former spouse
• Union dues or payments towards retirement accounts
• Health insurance premiums except for amounts paid toward providing coverage to the joint children
• Child support paid for minor children from previous relationships
Dividing Other Types of Expenses
After setting the monthly child support figure, the judge also determines how much each of the parents must pay towards expenses over and above child support. These typically include health insurance, co-payments and deductibles, cost of daycare so each parent can work, and unusual educational expenses. For example, if one parent earned 75 percent of the total income and the other 25 percent, the higher-earning parent would pay three-quarters of these expenses whether he or she receives or pays child support. The parents also have the option of assigning specific expense categories to one person. However, a judge needs to sign off on this to make it legally binding.
How to Change a Child Support Order
Once a child support order goes into effect, it takes a new court order to change it. One parent could petition the court to reduce or increase the support amount due to a significant change in circumstances. For example, the non-custodial parent could lose his or her job and no longer earn enough to meet the current obligation. If that parent receives a large income boost instead, the other parent may argue that he or she can pay more and petition the court to change the child support order.
Child Support Goes to the Other Parent
Since minor children don’t have the skills or maturity to support themselves or handle their own financial affairs, child support goes to the parent with primary custody instead. It’s intended to help with such expenses as rent or mortgage so the child has a place to live, food, clothing, and other everyday expenses. It can also cover one-time fees such as a sports uniform. The parent receiving the child support doesn’t have to account for exactly how he or she spends it.
Work with an Experienced Child Support Lawyer from the Start of Your Case
Even when you expected your divorce to proceed amicably and for both of you to put your children first, that doesn’t always happen. People can behave in unpredictable ways during such a stressful life event. Unfortunately, that means your children may not get the full financial support they need or that you must pay more than you can truly afford.
Retaining an attorney at the start of the process allows you to handle child support and other potentially contentious issues as soon as they arise. Family law attorneys typically offer free consultation sessions at no charge, which means you can interview several before choosing the one who best meets your needs.
Child Support is a serious obligation, if you have concerns, need to establish, modify an order or start withholding child support call (210) 299-4777 for a free consultation.