When one parent is awarded sole legal or physical custody in a divorce, the other parent typically is required to fulfill his or her child support obligation by making payments to the custodial parent. (The custodial parent meets this support obligation through the custody itself.) When parents are awarded joint physical custody in a divorce, their support obligations are based on how much money each parent earns and the percentage of time the child spends with each parent.
According to the federal Child Support Enforcement Act, each state has developed guidelines to calculate a range of child support to be paid, based on the parents’ respective incomes and expenses. These guidelines vary considerably from state to state, which means that in virtually identical situations the child support ordered in one state may be far more or less than that ordered in another state. Some states allow their judges considerable leeway in setting the actual amount, as long as the general state guidelines are followed. Others have very strict guidelines that leave the judges very little leeway.
Regardless of how much latitude judges are given, the guidelines in effect in most states specify factors that must be considered in determining who pays how much child support. These factors usually include:
- the needs of the child — including health insurance, education, day care, and special needs
- the income and needs of the custodial parent
- the paying parent’s ability to pay, and
- the child’s standard of living before divorce or separation.
Courts often require each divorcing spouse to fill out a financial statement to provide a complete picture of the parents’ financial situations before making a decision on child support. In the financial statement, the spouse must detail his or her monthly income and expenses.
When a court sets child support, it often considers the family’s pre-divorce standard of living and attempts to continue this standard for the children, if feasible. However, courts are aware of the difficulty of maintaining two households on the income that formerly supported one home. Maintenance of the same standard of living is therefore more of a goal than a guarantee.
Will the court consider high living expenses such as loan payments and income taxes when determining one’s ability to pay child support?
A court looks at the payer’s gross income from all sources, less any mandatory deductions (income taxes, Social Security, health care, and mandatory union dues). The result is the payer’s net income.
In most states, deductions for credit union payments, wage attachments, and so on are not subtracted when calculating net income. For example, John may make $2,000 per month, and his net income is $1,500 after income tax, Social Security, unemployment insurance benefits, and other government deductions. But the fact that $300 more is withheld to pay a credit union loan does not further reduce his net income for the court’s purposes. The reason for this rule is that the law considers support payments a higher priority than other types of debts.
In some states the court may take into account the reasonable expenses incurred by the paying spouse for his or her own basic necessities of life (such as rent or mortgage, food, clothing, and health care). However, courts typically do not allow expenses such as school expenses, dining out, and entertainment to influence their support determination. The theory is that family support should come before these types of personal expenses. And, in a growing number of states, the expenses of the paying spouse are irrelevant.
If you are already paying child support for children from another marriage, some states allow you to deduct the amount of child support you pay for other children from your net income figure. If you are asked to complete a financial statement, be sure to include this expense.
Can the court base its child support order on what I am able to earn, as opposed to what I’m actually earning?
In most states, the judge can examine a parent’s ability to earn as well as what the parent is actually earning. The judge may order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person’s ability to earn, but they are not conclusive where there is evidence that a person could earn more, if he or she chose to do so.
For example, assume a parent with an obligation to pay child support does one of the following:
- leaves a current job and enrolls in medical or law school
- takes a job with lower pay but good potential for higher pay in the future, or
- takes a lower-paying job that provides better job satisfaction.
In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children’s current needs take priority over the parent’s career plans and desires.
On the other hand, several courts have ruled that a parent’s imprisonment entitles the parent to a reduction or suspension of child support where there is no showing that the imprisonment resulted from an attempt to avoid paying the support.
You and your child’s other parent may agree to modify the child support terms, but even an agreed-upon modification for child support must be approved by a judge to be legally enforceable.
If you and your ex can’t agree on a change, you must request the court to hold a hearing in which each of you can argue the pros and cons of the proposed modification. As a general rule, the court will not modify an existing order unless the parent proposing the modification can show a change of circumstances. This rule helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that frequently support temporary modification orders are:
- a child’s medical emergency
- the payer’s temporary inability to pay (for instance, because of illness or an additional financial burden such as a medical emergency or job loss), or
- temporary economic or medical hardship on the part of the recipient parent.
A permanent modification may be awarded under one of the following circumstances:
- either parent receives additional income from remarriage
- job change of either parent
- cost of living increase
- disability of either parent, or
- needs of the child.
A permanent modification of a child support order will remain in effect until support is no longer required.
A COLA clause in a child support order means that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). Some judges include COLAs in their orders when setting child support. This eliminates the need for any modification requests based solely on cost of living increases.