Child Support Law
Child support is calculated according to state law. Each parent's income, including wages, assets such as stocks and bonds, and welfare benefits along with the child's standard of living before the divorce, are considered to determine each parent's obligation.
In some cases, the child might have extraordinary needs to consider and the court will allow deviations from the standard child support guidelines. In most states where the court deviates from the guidelines, the judge explains the reasons for the deviation in the order.
Child support is a matter of state law. Each state has its own system for calculating the child support amount. There are three basic models that each state government uses to determine how much child support a non-custodial might pay.
What you pay as the non-custodial parent — or receive as the custodial parent — will depend on your state laws and the formula used by your state to determine the amount of support.
Child support laws vary from state to state, but there are three basic child support models followed by most of the United States:
With a flat percentage formula, the child support amount is based on a percentage of the non-custodial parent's income and the number of children they are supporting.
The following states follow this formula for calculating child support:
The majority of states follow the Income Shares Model, which calculates the child support award to allow the child the same amount the parents would have provided if they lived together.
This model is based on the concept that before the divorce or separation of the parents, the combined parental income was spent for the benefit of all household members, including any children. This model calculates child support as the estimated share of each parent's income that would have been allocated to the child if the parents and child were living in an intact household.
Using the Income Shares model, the amount of child support is calculated according to the total amount needed for the support of the children and then the prorated amount between each parent based on their proportionate share of the total income. The obligor parent's obligation is payable as child support, while the other parent's portion is retained and presumed to be spent directly on the child.
For example, if the court has determined that the children need $1,000 a month and the parents make a combined $100,000 annually, in which the father makes $60,000 annually and the mother makes $40,000 annually, the court may require the father to pay $600 a month and the mother $400 a month.
Only Delaware, Hawaii, and Montana follow the Melson formula for calculating child support. With this model, the child support amount is based on a variety of factors, known as the “Melson Factors“. Some of these factors include both parents' incomes as well as the needs of the child. This formula is similar to the Income Shares Model, but includes factors that ensure the parents' needs are met as well.
A child support award is calculated on several factors besides the cost of the child's basic necessities. It may include provisions for child care, medical care, extracurricular activities, education expenses, or other child-related costs. If the supporting parent is able to enjoy a lifestyle that exceeds the custodial parent's living standard, it will be reflected in the amount of child support awarded. Though not intended, the child support payments may even benefit others in the custodial household whom the other parent has no obligation to support.
Under the Child Support Enforcement Act of 1984, child support payments are based upon each parent's current income. This includes a number of elements including:
However, under such circumstances as incarceration, past due child support would continue to accumulate (overdue payments are called arrearages or arrears), and the noncustodial parent would be responsible for paying past due payments when released, either immediately or in installments, as mandated by a court of law.
Child support orders generally expire when the child becomes a legal adult. The age of majority depends on state law. This usually happens at 18 years of age or graduation from high school whichever comes later, or if the child has married, acquired an emancipation order, or enlisted in the military.
Though every state does not require child support after graduation from high school some states do require support payments to continue if the child attends college. Check with a family law lawyer in your state to find out about any continuing support obligations after a child turns 18.
The inability to pay your order because you cannot work will not excuse you from the order. Missed payments will accrue as arrears even if a parent is in jail, in the hospital, or in any other situation that does not allow them to work. When the parent is able to work they will be required to pay back the arrears.
Every state treats child visitation and custody separately from the obligation to pay child support. You can't refuse to pay your child support payments just because the court doesn't grant you visitation or custody of the child. However, visitation and custody orders do impact how much child support is awarded. The impact varies by state.
A child support order is entered based on the parents' current income levels. A parent may not unilaterally reduce or stop their child support payments because of a loss of income or additional expenses. If you feel that your current child support payment is too high you can ask the court to modify the child support order.
Child support payments can be modified over time for reasons such as an increase in either parent's earnings — this can include additional income from remarriage, a decrease in income due to a job change, a change in custody in which the child support order may be reversed, a change in the amount of time the child spends with each parent or the specific needs of a child or either parent change due to a medical disability, etc.
However, until a modification order is entered, the original child support amount is still in effect. Likewise, a parent may ask the court to increase a parent's child support payment because of added income or decreased expenses.
As the non-custodial parent, you might be required to pay part of your child's daycare expenses if the other parent uses daycare to go to work. This expense is usually set according to the state guidelines and is paid to the parent who actually pays for childcare or directly to the childcare provider.
You can take your ex back to court, where the judge can issue a wage assignment that results in an automatic deduction from your spouse's paycheck. You may also be able to “attach" or “levy" upon your spouse's bank accounts, stocks, or other property including a house. In many states, the local district attorney's office is empowered to enforce support payments. Many courthouses offer child support services to help parents collect unpaid child support.
Depending on where you live, you may find some of the state child support calculations to be challenging to apply to your situation. Determination of income, how to handle unemployment or underemployment, considering additional expenses other than basic support — all of these may come into play in your child support case.
Getting the right counsel and legal advice for your circumstances can have an impact on your financial support order.