Child Support

Since the late 1980's the Federal Government has required each state to implement some form of guidelines to assist in establishing the amount of child support ordered to be paid in Dissolution of Marriage cases. These guidelines can also be applied in Paternity cases, depending on your state's laws.

States throughout the country have adopted varying models to establish child support. Some use a percentage of the non-custodial parent's income; others base child support on each parent's percentage of their combined gross parental income. The first step in establishing the appropriate amount of child support for your case is to find out what method your state uses and to get copies of the relevant child support charts and forms. You can usually get a copy of the guidelines from your county's Circuit Court Clerk. The guidelines are reviewed at least every 4 years-so make sure you have a the current version.

For example, Texas and Illinois use a percentage of the non-custodial parent's income, while both Missouri and Kansas establish the amount of child support by calculating each parent's percentage of their combined total gross monthly income. Both Missouri and Kansas have child support charts that are keyed to gross monthly income and the number of children in the family, though Kansas further refines their calculations based on the ages of the children.

The child support guidelines indicate the "basic" amount of child support; additional child related expenses are added to this figure to calculate the "total child care expense." This number is multiplied by each parent's percentage of the total combined income to determine the "presumed amount of child support." It is presumed that the custodial parent will spend that amount of money on the children; and the non-custodial parent's child support is generally the amount indicated on the child support work sheet-which records all of the income, expenses and adjustments that are allowed by that state.

Disputes about child support amounts can arise regarding:

1. Each parent's correct gross monthly income;

2. The impact of other children or court ordered support obligations;

3. Day care and Health care costs for the children, including insurance premiums;

4. Extraordinary expenses, like private school tuition, etc;

5. Documentation regarding the children's real expenses.

Each of these factors are "fact" specific, which means it is difficult to generalize about the import or impact of any of them on a given case, other than to say the guidelines themselves have "Comments for Use" that may address how these issues should be handled when establishing child support.

Other things to be aware of regarding establishing the amount of child support:

1. Tax Factors: generally, child support is not deductible for the paying parent and it is not taxable income to the receiving parent, while alimony or spousal support is deductible to the paying spouse and is taxable to the receiving spouse. In appropriate cases it may be beneficial to call support payments alimony or spousal support because of the tax benefits to the "economic unit." Implementation of tax planning in a Dissolution case requires the advise of an attorney or an accountant. This benefit cannot be implemented in Paternity cases.

2. Personal Exemptions for Dependent Children:Generally, the custodial parent is allowed to claim the personal exemptions for children-unless they specifically waive the exemption in favor of the other parent. Generally, it is more beneficial for the higher earning parent to claim the children's personal exemptions because that parent's taxable income will be lower with the exemptions than they would be without them. The "tax saving" can be used either to make child support payments more affordable or to increase the amount of child support by all or some of the amount saved by paying lowed taxes. Again, it is probably wise to consult with and attorney or accountant about this issue in either a Dissolution case or a Paternity case.

3. Rebuttable Presumption: While the guidelines create a "presumed" amount of child support, this presumption can be rebutted-or argued against-in appropriate cases. But, remember that most attorneys and judges put a great deal of emphasis on the guidelines and are reluctant to deviate from them without very good reason.

SEC. 103. STATE GUIDELINES FOR CHILD SUPPORT AWARD AMOUNTS.

(A)(a) GUIDELINES TO CREATE REBUTTABLE PRESUMPTION.-Section 467(b)

of the Social Security Act is amended-

(1) by inserting (1) after (b):

(2) by striking, "but need not be binding upon such judges or other officials;" and

(3) by adding at the end the following new paragraph:

(4) "There shall be a REBUTTABLE presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established the State, shall be sufficient to rebut the presumption is that case."

Child support payments can be paid directly to the custodial parent or the payments can be made through the Court-either by sending the payments in personally or by having the payments sent by your employer through a wage assignment or a garnishment.

Some states require that child support payments made through the Court be paid by the non-custodial parent's employer-to help reduce the number of cases where child support goes unpaid. Employers can charge a fee for handling the child support payments and the Court can charge a fee for processing child support payments. The only way to avoid these additional fees is to agree that the payments will be made directly to the custodial parent-and then to make the payments on time ! Most attorneys feel that all child support payments should be made through the court system so that there is a public record of the payments. If you decide to pay directly to a custodial parent, make certain that you pay by check or money order. The check needs to be clearly marked in the memo section as being made out for child support. In addition to the check or money order, the custodial parent should give you a receipt for the payment. (YOU NEED TO KEEP THESE CANCELED CHECKS AND RECEIPTS FOREVER, OR UNTIL YOU DIE, WHICHEVER COMES FIRST!)

C. Enforcing Child Support Orders

Child support arrearages can be paid off through wage garnishments, interception of income tax refunds or workers compensation payments, through liens on property, or contempt proceedings that can result in jail time. Some states have also passed legislation that makes it a criminal violation not to pay child support.

Keep in mind, once there is an order for child support, that order will control even if the other parent tells you its okay not to pay the child support-or you lose your job and can't afford to pay the amount of child support that was ordered. If you have a change in financial circumstances that make it difficult for you to pay your child support-pay as much as you can-and check into getting the child support order changed as soon as possible.

Note: Staying current with child support payments can be very helpful if you are having problems with visitation. In Missouri for example, denial of visitation to a no custodial parent who is current in child support payments can result in either: a) an abatement of all or some of the future child support; or b) can be deemed to be grounds for changing custody.

D. Modifying Child Support

Some states have implemented a policy of reviewing child support orders periodically to make sure they are adequate. In Missouri, for example, child support orders are reviewed every 3 years, and if there is a 20% difference in the child support amount-up or down-the child support order can be modified. All of the factors used to establish child support initially are reviewed in modification cases. Parties can ask the local child support enforcement agency to review their case or they can file a private motion-either pro se (without an attorney) or with the help of private counsel. The urgency of the situation, the reason for the modification, the complexity of issues and the costs of private counsel have to be weighted before deciding how to proceed.

E. Which State Has Jurisdiction Over Child Support Orders

Generally, the state that entered the child support order retains jurisdiction over that order if at least one of the parties to the action lives in that state. For example: Mom, Dad and child live in Missouri. A Court in Missouri enters a Decree of Dissolution, or a Paternity Order, that includes a child support order. Later Mom and the child move to Kansas, but Dad remains in Missouri. Missouri retains jurisdiction over the order for all purposes-not just child support. But if Dad moves to another state, and Mom and the child have lived in Kansas for more than 180 days (6 months), Kansas becomes the child's "home state" and further modifications would be handled by the Kansas Courts UNLESS the parties both file written statements consenting to another state assuming jurisdiction over the case.

A new federal law was passed in 1994 that deals with this issues. It is Public Law 103-383 [S.922]; October 20, 1994. Full Faith and Credit for Child Support Orders Act."An act to provide that a State court may not modify an order of another State court requiring the payment of child support unless the recipient of child support payments resides in the State in which the modification is sought or consents to the seeking of the modification in that Court."

At first glance this law appears to indicate that any state where the recipient of child support payments lives or agrees to allow a modification to take place in would be able to modify a child support order entered by another state-but that is not what the Full Faith and Credit for Child Support Orders Acts actually says.

State "B" cannot modify a child support order entered by State "A" if-.

1. the child support order was made by a court in State "A" that had subject matter jurisdiction to hear the matter and enter such an order according to the laws of State "A"; and State "A" had personal jurisdiction over the parties; and

2. the parties had reasonable notice of the action in State "A" and had an opportunity to be heard by the court in State "A"; and

3. at least one of the parties still resides in State "A".

State "B" can modify a child support order entered by State "A" if:

1. the child support order was made by a court in State "A" that had subject matter jurisdiction to hear the matter and enter such an order according to the laws of State "A"; and State "A" had personal jurisdiction over the parties; and

2. the parties had reasonable notice of the action in State "A" and had an opportunity to be heard by the court in State "A"; and

3. the court has jurisdiction according to State "B's" laws; and

a. State "A" no longer has jurisdiction over the child support order because State "A" is no longer the child's home state or the residence of any other party to the action; OR

b. Each party has filed a written consent, in State "B," agreeing that State "B" can assume jurisdiction over the child support order.

To clarify- Mom, Dad and child lived in Missouri; and after proper service of summons was had and both Mom and Dad had an opportunity to be heard, a Missouri court entered a child support order requiring Dad to pay child support to Mom. Mom and child move to Kansas, and live there more than 6 months. Dad moves to Iowa.

Missouri (State "A") loses jurisdiction because none of the parties live in Missouri any more. Kansas is the child's new home state. Future modifications can be made in Kansas (State "B") because Missouri doesn't have jurisdiction anymore and because the child and the recipient of child support live in Kansas. If for some reason Dad wanted to get a modification in Iowa (State "C"), Iowa could only assume jurisdiction if Mom consented, in writing, to Iowa assuming jurisdiction.

Under this law, however, Missouri, (State "A") could still enforce its child support order with regard to any child support arrearage that accumulated while it had jurisdiction over the child support order en if none of the parties still lived in Missouri.

You only need to be served with a summons and a copy of the petition or motion to be deemed to have had an opportunity to appear and be heard. The important thing to understand is: if you are ever served with a summons and a copy of any petition or motion, you must answer or enter an appearance, in writing, within 30 days, or you will not get notice of actual hearings on the case AND even if you don't go to any hearings, you will be bound by any orders that are entered.

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