Frequently asked questions to help you determine how much child support a noncustodial parent must pay.

How do custody arrangements affect child support obligations?

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.

How are child support levels calculated?

Under the federal Child Support Enforcement Act of 1984, each state must develop guidelines to calculate a range of child support to be paid, based on the parents’ 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 which 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.

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

How do courts determine how much a parent is able to pay?

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.

My soon-to-be-ex-wife wants custody of our children. She has a much higher income than I do. Will I have to pay child support, even though I earn much less money than she does?

Courts are supposed to strive for fairness in establishing the dollar amount of child support obligations. When setting child support, a court normally considers the income and expenses of both parents. Since the custodial parent is most often the mother, and she usually has a lower income than the noncustodial father, it is common for the noncustodial parent to pay support to the custodial parent. However, if the custodial parent earns a great deal more than the noncustodial parent, child support may be a nominal amount.

Even though I have a high yearly salary, I have many expenses such as loan payments and income taxes. Will the court consider these expenses when determining my ability to pay child support?

Courts always consider a person’s ability to pay when setting child support obligations. A court looks at the payer’s gross income from all sources (wages, public benefits, interest and dividends on investments, rents from real property, profits from patents and any other sources of income), 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. Thus, John may make $2,000 per month, but his net income is $1,500 after income tax, Social Security, unemployment insurance benefits and other government deductions. 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. It would rather see other debts not paid than have a spouse or child go without adequate support.

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.

I pay child support for children from a previous marriage. How will this affect what I’ll have to pay as a result of my current proceedings?

Some states allow you to deduct the amount of child support you pay for other children from your net income figure, which is used to determine how much support you should pay. This acts as sort of a credit. 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.

Family Support Act of 1988
(42 U.S.C. Section 666)

The Family Support Act of 1988 reformed the U.S. welfare system by emphasizing enforcement of child support orders against delinquent parents and expanded job training and educational opportunities to reduce parents’ reliance on welfare.

Under the act, all states must include automatic wage attachments in new or modified child support orders, with few exceptions. The act also encouraged states to use paternity tests to establish responsibility for child support. It required the use of guidelines in making support awards. The Act also mandated that states develop automatic tracking and monitoring systems for parents not paying support. And, because refusal to pay child support is often linked to frustrated visitation, the act funded projects to improve noncustodial parents’ access to their children.

The act also created a new Job Opportunities and Basic Skills Training (JOBS) program to help welfare recipients enter or reenter the job market. Participation is required, except for parents who are pregnant or caring for children under age three. Parents with children under six needed only participate part time. A parent who fails to participate loses Aid to Families with Dependent Children (AFDC) benefits, now known as Temporary Aid to Needy Families (TANF).

While each state’s program is different, all offer basic education and skills training. They may offer on-the-job training, community work experience and job searching. They focus on unemployed custodial and noncustodial parents who are, or are likely to become, long-term welfare recipients. The states also must provide child care and Medicaid for up to one year to assist the transition from welfare to work.

Before the act, in some states, AFDC was available for only single parents. After the act, it offered benefits, including cash assistance, job training, Medicaid and child care, for intact families whose principal earner is unemployed.