Peter pretty much agreed that his wife should have custody of their two young children. He hadn’t really wanted a divorce, but on the other hand, he was fine with it when he learned that his wife was leaving him. He knew he hadn’t been all that good to her, and he knew even more so that she hadn’t been very good to him. But she was a good mom to their two kids, and Peter knew he couldn’t handle them without her. Yet paying child support for two kids for the next ten or fifteen years frightened Peter. He didn’t know how he was going to survive in his own place while paying child support, when his paychecks barely covered things as it was, with the whole family in one place.

Obligation

The obligation to pay child support arises when the parent no longer has custody of the minor children for whom the parent pays the support. When children are in the home, a parent must devote income to their care. A parent can get into serious trouble for neglecting the care of the parent’s own children, not just with protective services but even with law enforcement, leading to criminal charges. A parent’s support obligation continues under court orders awarding child custody to the other parent. Indeed, the support obligation becomes much clearer, right down to the amount and timing of the support payments. If you have custody of your minor children during or after a divorce, you shouldn’t expect to pay child support because you’re already committed to devoting your income to your children’s care. But if you lose custody, you’ll very likely face a support obligation if at all able to pay it.

Ability

While the first condition to having to pay child support is to be the non-custodial parent, a second condition is that you have the ability to pay support. The ability to pay support typically arises out of employment earnings. Your paycheck proves your ability to pay. It doesn’t matter the nature of your employment, whether in the trades, business, government, the nonprofit sector, education, or a profession. It doesn’t matter if your employment is seasonal, full time, part time, hourly, salaried, or by the job. It doesn’t matter whether an individual, corporation, or agency employs you, if you are self-employed, or even if your income is passive rather than earned, such as from dividends, interest, or rental properties. If you are able to earn an income, the divorce court is likely to require you to pay a portion of those earnings in child support.

Disability

The flip side of the coin is that if you are disabled from earning income, and without other passive income, then you likely won’t owe child support. Disability can include mental or physical disability, disability from illness or injury, or disability from aging or other decline. It might even include disqualifying circumstances, like incarceration or house arrest, or an absence of work authorization under an immigrant visa, even if otherwise able of mind and body. If, though, you are only partially disabled, or your circumstances only disqualify you from your traditional, higher-paying, and preferred employment, you will still owe child support on the lesser income you earn.

Attribution

In some instances, a non-custodial parent may not be working and earning an income, even though they could. They may be temporarily unemployed because they are attending a college, university, or vocational program. They may be between jobs, taking a break from jobs, lazy, or deliberately trying to avoid paying child support. In those instances, the judge ruling on child support may attribute income to the non-custodial parent for purposes of awarding the custodial parent support. The attribution of income means that the non-custodial parent will face an accumulating support obligation anyway, despite not earning an income, thus hastening the parent back to work. The same may be true if the non-custodial parent is earnestly hunting for a job after a prior job layoff or termination, and only out of work because they haven’t yet found the next job. The attribution in those cases of a non-custodial parent seeking a job, though, may be of a very modest amount such as $100 or $200 a month, in a sense, just to keep the non-custodial parent earnest in the job hunt.

Capacity

Judges ruling on child support may also have some authority to award child support based on earning capacity rather than simply on actual earnings. If, for instance, the non-custodial parent appears to be working less than usual, drawing less than usual from the parent’s own business, or in other ways deliberately decreasing earnings to reduce the child-support obligation, the judge may award support based on the parent’s greater capacity to earn. The judge may also consider regular or seasonal overtime earnings, annual or quarterly bonuses, and other extra income in the form of expense reimbursements, per diem payments, and the like. In other words, it’s not only the straight pay; it’s also the extras, if the custodial parent, referee, caseworker, or judge learns of it, and the judge decides to consider it. 

Disclosure

Don’t conceal or underreport income in child-support proceedings, especially when requested to disclose it. Doing so is dishonest, may effectively cheat your children out of deserved support, and could result in sanctions against you. Parties and caseworkers can get employment, business, banking, and other financial records to prove payments and deposits. You may also have to testify under oath as to your income, income sources, and capacity to earn income, and authorize release of records. You may also have to provide pay stubs, IRS W-2 and 1099 forms, and similar earnings records. Disclose income accurately.

Use

How the custodial parent uses child-support payments is largely up to the custodial parent, beyond the basic presumption that child support goes to help the children. The court will generally not require any accounting from the custodial parent or attempt any tracing of support payments into child expenses. In any household, it’s often money in, money out. Everything goes into a single checking account and comes straight back out of that account for the mortgage or rent and for food, utilities, clothing, gas, insurance, and other necessities. If you’re making child-support payments, you may want to see your custodial spouse or ex-spouse spend those payments on food, clothing, and school supplies for your children. When instead you learn of your spouse’s or ex-spouse’s night out on the town in expensive new clothing, you may think you’re seeing the gross diversion of your child-support payments. But if your children are fed, clothed, and sheltered, then who’s to tell exactly where your support payments went? Don’t expect direct accounting. Instead, ensure that your children in the custody of your spouse or ex-spouse are clothed, housed, and fed. If not, complain to the court, seeking a change in custody.

Amount

The amount of child-support payments generally lies in the judge’s equitable authority. States may inform that judgment by some form of child-support table, online program, mathematical formula, or combination of those aids. The factors feeding the formula begin with the number of children for which the non-custodial parent will pay support under the order. If the non-custodial parent is already paying support under other orders, the formula will figure in the amount of that other support and number of other children it covers. The formula then considers the incomes of the custodial parent and non-custodial parent to come up with a recommended figure. Additional factors outside the formula, informing the judge’s equitable adjustments to the formula’s output, may include childcare costs, unusual housing costs, and special needs of the children. Find your state’s child-support tables, formula, or program online to estimate your potential support obligation, or ask your attorney or the Friend of the Court for estimate help.

Negotiating

Divorcing spouses can have substantial opportunities to negotiate other divorce issues such as property division and who remains in the marital home if not sold. Non-custodial parents generally have fewer if any opportunities to negotiate child support. Child-support tables and formulas are what they are. Once the custodial parent learns of the formula or table amount of child support, they may have little incentive to accept a lesser amount of child support. Yet as mentioned above, judges may attribute or not attribute income, and may adjust child support based on other facts and expenses, affecting the formula or table recommendation. If you face a child-support obligation, you may be able to negotiate an amount with the custodial parent, either based on those other uncertainties or in exchange for other consideration. You may, for instance, be able to offer accommodations on custody, parenting time, property division, or other rights and interests, in exchange for a modest reduction in child support. Do the best you can for yourself and your children under the circumstances, in negotiations with the custodial parent. But don’t be surprised if you must pay the formula amount.

Monitoring

Once the judge determines a child-support obligation, the order should reflect how the non-custodial parent is to make payments. Depending on state laws and local practices, child-support orders may require the non-custodial parent to make payments through a Friend of the Court or similar office responsible for monitoring and helping to enforce child-support obligations. Payment through a local court unit or agency promotes the ability of the parents and the court to accurately record and prove payment or non-payment. The non-custodial parent either paid or didn’t pay, as the official records reflect, eliminating most such disputes. The unit or agency record can also readily reflect accumulating arrearages with reliable accuracy, add interest or other charges to arrearages, and communicate the arrearage accurately to the parties and the court.

Withholding

Under state laws, rules, regulations, or guidance, family courts may take a further step to promote prompt and regular payment of child support, in the form of an order for income withholding. See the example income-withholding order among the forms at the end of this guide. Income-withholding orders direct the non-custodial parent’s employer to withhold the child-support amount from the non-custodial parent’s paycheck, to pay over to the local child-support unit or directly to the custodial parent. If a state does not outright require income-withholding orders, then the custodial parent may request such an order, giving the non-custodial parent another opportunity for negotiation over the preferred route of payment. While income-withholding orders and payments through the local child-support unit may sound onerous to the parent owing child support, they also simplify the process and ensure that the parent gets credit for all payments made. You may not want to fight income-withholding orders. It’s not usually a winning or worthwhile fight. Instead, ensure that the amount of the child support is correct and that you’re getting credit for payments.

Changes

Custodial and non-custodial parents, either receiving or paying child support, may request changes to the support order when their circumstances change. The primary change in circumstance has to do with changes in income due to the loss or gain of a job, or a pay raise or pay reduction within a job. Overtime hours can also change, as can bonuses and other income forming the basis for the order needing change. Changes in custody arrangements can also warrant a change in child support, such as when the parents begin to share custody, change a shared custody arrangement already established, agree to joint physical custody, or swap physical custody from one parent to the other. Changes in childcare expenses, such as when a young child begins to attend public school instead of a daycare facility, can also affect child-support obligations. Parents owing child support should be reporting wage increases to the Friend of the Court but, as you can imagine, often don’t do so because of the strong likelihood or certainty of a corresponding increase in child support. To make a change in child support, the parent desiring the change may need to notify the local child-support unit or file a motion or petition with the court, alleging the change in circumstance justifying the support modification. The judge may hold a hearing if the parties disagree over the circumstances. 

Duration

Child-support orders typically have the same duration as child-custody orders, already discussed in the prior chapter. The support obligation may thus abate when the child turns eighteen years old, graduates from high school, or obtains court emancipation. For a parent looking at a support obligation owed for a young child, the child’s high school graduation can look a very long way off. But circumstances can change, and change several times, over that long course, as the child matures and the parents’ employment, income, and living circumstances change. In some things, it’s better to take the short view than the long view. That wisdom may be true for child support. Care for, love, and enjoy your children, no matter the current circumstances of their custody and support. Your children mean more than the monetary support and circumstances. And the circumstances may soon change, causing a change in the child support.

Enforcement

A custodial parent whom the non-custodial parent owes unpaid child support may petition the court for enforcement, if the local child-support unit does not have its own support-enforcement mechanism. Some local child-support units work with an assigned prosecutor or similar attorney official to enforce unpaid child-support obligations, for qualifying custodial parents. The unpaid support amount may have to reach a minimum monetary level or minimum period overdue before triggering enforcement measures. Enforcement measures, whether by the local unit or by the custodial parent, with or without attorney representation, involve a court motion or petition, service of that filing on the parent owing the unpaid support, and a hearing.  If you suddenly cannot pay child support because of a job loss, reduction in pay, or other change in circumstance, move promptly for a change in child support. Otherwise, you may find your unpaid support obligation growing into a substantial arrearage. Adjustments to child support are generally retroactive to the date the parent files the motion for an adjustment, not all the way back to the change in circumstances justifying the motion.

Arrearages

Arrearages accumulating from unpaid child support are relatively common under child-support orders. Sometimes, the obligated parent simply cannot pay. And sometimes, they carelessly fail to seek a change in the child-support obligation reflecting their job loss or other change in circumstance. See the determination-of-arrearages form among the other forms at the end of this guide. If the judge or other hearing official finds the unpaid support owed, and further finds the non-paying parent irresponsible in the effort to earn income to pay the support, the challenge is then what to do about it. Another order to pay won’t help because the non-paying parent was already under an order to pay. Judges may threaten the non-paying parent with jail time, although jailing a parent frustrates the parent’s ability to earn an income to pay support. A judge may therefore jail the parent overnight or on weekends, or in some similar way sufficiently embarrass, burden, or inconvenience the parent to induce payment. It’s not a particularly effective process. States have other laws requiring suspension of professional licenses or driver’s licenses, seizure of tax refunds, and similar measures against individuals owing unpaid child support. Arrearages can also remain enforceable years after the child-support obligation ends. Do your best to avoid arrearages. Enforcement action can cripple your life, and arrearages can adversely affect your children.

Key Points

• A non-custodial parent with an income has a child-support obligation.

• Child-support obligations generally depend on the ability to pay.

• Judges attribute income to non-custodial parents who refuse to work.

• Judges can award support based on earning capacity, not just income.

• Parents must accurately disclose the amount and sources of income.

• The custodial parent need not account precisely for the use of support.

• The support amount depends on incomes and number of children.

• Non-custodial parents may have modest ability to negotiate support.

• Non-custodial parents may have to pay through a local unit.

• The non-custodial parent’s employer may have to withhold support.

• Parties may move to change child support on changed circumstances.

• Child support lasts until the child is eighteen or graduates high school.

• The court can enforce child-support arrearages through sanctions.

• Child-support arrearages can affect licenses and tax refunds.

Read Chapter 13.