When it comes to divorce, things are already emotional. But when children are involved, divorce can be an emotional rollercoaster. Add in financial concerns like child support, and things can get downright nasty. Child support is always a difficult aspect of divorce, but the San Diego Family Law Attorney has the experience necessary to make the process go more smoothly.
But it’s important to know a little bit about child support and how it works to help you prepare for meeting with one of our attorneys, and it can help alleviate some anxiety.
What is Child Support?
In basic terms, child support is a payment made by one spouse to the other to help pay the costs of child-rearing. Typically, the parent with primary custody is the one who receives the support payment. However, even if both parents share custody equally, one parent can be ordered to pay child support. This usually happens when one parent's income is significantly higher than the other parent.
Child support payments can be used to cover a number of costs associated with childcare such as:
- Medical Expenses
- General Living Expenses (for example food, clothing, shelter, etc.)
- Extracurricular Activities
- Daycare Expenses
Child support is usually determined during the initial divorce proceedings along with child visitation and custody. Parents are encouraged to decide on and agree to a child support amount, but sometimes parents can’t work together to reach a decision. If the parents can’t agree to a child support amount, the family court will be required to determine how much the non-custodial parent will pay.
Child Support Determination
Determining how much one parent will pay in child support can be a difficult undertaking. There are a number of things to consider and the final determination has to be in the best interest of the child.
The family court system uses several guidelines to determine the amount of child support the custodial parent will receive. These guidelines include:
- The current salary of both parents
- Any other income the parents receive
- Number of children the parents have together
- Amount of time each parent spends with the children
- The tax filing status of both parents (i.e.: head of household etc.)
- Support payments made to children of other relationships (if any)
- Health insurance costs, and the cost of healthcare not covered by insurance (such as vision and dental expenses)
- Mandatory union dues
- Retirement contributions (to a 401k or Roth IRA)
- The cost of daycare expenses
On top of child support, both parents are expected to share in various expenses including:
- Child care costs that result from a parent needing to go to work, or a parent who needs training or schooling to acquire necessary skills for their job.
- Health care expenses
- Travel costs for visitation to the non-custodial parent
- Educational needs
- Other needs as determined by the court
For the non-custodial parent, these expenses are paid via child support payments and typically considered “add-ons” to the base child support amount. These add-ons can include private school tuition, medical expenses such as braces or glasses, and extracurricular activities.
Support amounts differ for families with more than one child. In these cases, the court will ensure that the youngest child receives the full amount of support and the amount of support will be downward adjusted for each additional child.
Because of the intricacies of child support law, it is important to have a knowledgeable and experienced attorney to ensure that your needs are properly represented and the best possible outcome for your case is reached.
Child Support Modification
As children grow up, their financial needs change, typically getting more expensive. Children get involved in school activities or sports, which can be costly endeavors but beneficial for a child’s development. When a child’s expenses increase, it may be necessary to modify the original child support order to compensate for the increased costs.
- A child support order can be modified by the court for a number of reasons including:
- Loss of employment
- Change of income due to activation of military duty or National Guard Duty
A change of circumstances
For ordered child support amounts that are at or above the guideline amount, a change of circumstances must be shown in order to alter the support amount. A change of circumstances can be:
- A change of income – the income of either parent has gone up or down, or one parent has lost their job.
- Change in the amount of parenting time – the amount of time one parent has with the child has changed, either by court order or agreement by both parents
- One parent has had another child in a different relationship – either parent is involved in a new romantic relationship and has another child with them
- The child’s needs have changed – medical or health-related costs have changed or there have been changes in other child care costs such as daycare
There are a number of other situational changes that can warrant a child support modification request. However, it is important to note that the change needs to be significant. If the change in income is quite small for example, there may not be any change in the child support amount and therefore not worth the expense of a hearing to adjust the support order.
Modifying a child support order can be tricky. If you think the amount you have been ordered to pay needs to be changed, or if your ex-spouse has petitioned the court for a support order modification, you’ll need to contact an attorney with experience to handle the legalities and ensure that your child has everything he or she needs.
It is also important to know that you should not wait to modify an order. The court cannot make a child support modification retroactive. This means that if the court approves the support modification, the change cannot be made retroactive prior to the change. There are a number of reasons you might procrastinate on filing a modification petition. A few of the most common reasons are:
- Life happens – filing the petition may slip your mind due to the stress of everyday life including work, paying bills and caring for other family members
- Anxiety and fear – many people are anxious about any court proceedings, especially if they’ve had bad experiences in the past
- Parenting time – many parents feel if they request a support modification, the other parent may keep their children from them, especially if the current amount of parenting time has decreased
- Stress from loss of employment – loss of a job can throw anyone’s world upside down and understandably, modifying a support order will be the last thing on your mind, but it should be the first thing you do
In some cases, a parent might be underemployed or refuse to work, in which case the court will have to determine that parent’s earning capacity. This is essentially the parent’s ability to earn an income, and then determine child support amounts based on this calculation.
The court also has to take into consideration the child’s best interest. If it is not in the best interest of the child for one parent to work, this will change that parent’s earning capacity.
Enforcing Child Support Payment
Sometimes the parent paying child support stops paying or refuses to pay the amount ordered by the court. This can put a huge financial burden and undue stress on the custodial parent and make things difficult for the child or children. But the custodial parent does have options and the court can enforce the support order.
A family court can enforce child support in a number of ways including:
- Withholding a federal tax refund – if a parent hasn’t paid support in some time and the unpaid payments have been allowed to accrue, the court can order that parent’s federal tax refund be withheld and used to pay the child support arrears.
- Wages can be garnished – the court can order the child support amount be taken out of the parent’s regular paycheck
- Seizing property
- Suspending a license required for the parent’s occupation (such as a medical or teaching license)
- Suspending the parent’s business license (like a license to run a restaurant)
- Suspending or even revoking the parent’s driver’s license
- Denying the issuance of a passport to the delinquent parent
These methods of enforcement can help motivate a parent who is delinquent in payments to catch up on and make regular payments. However, in cases where the parent still will not pay, that parent can be held in contempt of court for failing to follow a court order and be faced with jail time as well as fines.
While payments are not being made, the missed payments will start to accrue. This is called arrearage and the payor is “in arrears.” The arrears will continue to accrue unless the parent starts paying payments again or petition the court for a support modification. The arrearage will also accrue interest at the rate of 10 percent per year. Child support payments, like student loans, must be paid and cannot be discharged via bankruptcy. They can also not be waived or dismissed. The court cannot modify past arrears.
If your ex-spouse has moved out of state, the court ordered child support can still be enforced. The UIFSA or Uniform Interstate Family Support Act gives you several options for enforcing a child support order:
- Ask the court to impose enforcement on the delinquent spouse, as long as the state you are in has personal jurisdiction over the case
- If your state does not have jurisdiction over the support order, you can have the court forward the court order to the state in which the parent is currently living and have that state enforce the order
- Go to the state the parent is living in and file a request for child support enforcement in that state
- If you know where your ex-spouse is living, you can send a copy of the support order to their employer and ask that they garnish his wages
The Deadbeat Parents Punishment Act of 1998 has made it a felony for a parent paying child support to refuse to make payments to a parent in another state. Making failure to pay support a federal offense allows parents who have stopped paying or refuse to pay support payments to be charged with felony criminal offense. This felony goes on their permanent record and can make it difficult for them to find employment.
The Difference Between Support and Custody
Many parents paying child support may want to withhold payments, especially if the custodial parent is alienating them, or preventing them from exercising their parenting time. But this is a mistake. Child support is a separate order from child custody and has to be dealt with accordingly.
If your spouse is preventing you from seeing your child, you must petition the court regarding child custody. Contact an experienced attorney right away, and discuss your options. But you will have to continue to pay your court-ordered child support. If you stop paying, you’ll be subject to the penalties and fines listed above and still be responsible for paying the child support arrearage, which will accrue interest yearly.
The Right Child Support Attorneys
The bottom line is child support is an emotional and stressful time for both the parents and the child. These situations are extremely complex and require an attorney with knowledge of all aspects of child support in order to ensure you get the child support amount you need for your child to thrive. If you or someone you know has a child support case, working with a knowledgeable and experienced attorney can make this emotional situation much easier.
At San Diego Family Law Attorney, our team has years of experience in child support cases and our number one priority is the well-being of your child. Call us today at 619-610-7425 to speak to one of our experienced team members and take the first step to ensuring you and your child’s rights are protected and their needs are met.