We frequently receive “family law” questions regarding the legal obligation of parents to pay support for their children. This FAQ is a general introduction to the legal issues related to child support, including who is liable for support (and under what circumstances), how support awards are arrived at, and enforcement and modification of child-support awards. Because the law of child support is governed by state, rather than federal, law, it varies from state to state. A person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters.
World Law Direct also offers back-up support, lawyer assistance, and pleadings drafting for persons that choose (for whatever reason) to go to court themselves without a lawyer.
Contents
- Who is liable for child support?
- How is child support calculated?
- When can the court deviate from the guidelines?
- What income is included in the computation?
- What court procedures are used to determine support?
- I have an order for support, but he/she still won’t pay!
- How do I locate a missing parent so I can enforce a child support order?
- How do I collect if the payor parent lives in a different state?
- I cannot afford to pay the support I owe!
- Can I transfer assets to my mother, father or spouse so that they cannot be taken for the child support I owe?
- Can my spouse’s wages or assets be taken to satisfy a child support obligation I owe?
- If the payor goes to jail for non-payment of child support does the support still have to be paid?
- Do I need a lawyer?
1. Who is liable for child support?
First, liability for support is imposed on both parents (whether or not the children are born in wedlock). Second, the amount of support is fixed by a court in an amount determined by the court to be “fair and reasonable,” which suggests that fixation of child support can be an inexact science (with the adoption of child support guidelines, the science has become a bit more predictable). Third, child support can be based not on the means “possessed” by a parent but also on the means which the parent is “able to earn.”
Child support consists of payments made toward the care, maintenance and education of an unemancipated child under the age of 18-21. Support payments may be made by either or both parents and can be provided for by valid agreement or by a court order.
Non-parents are not liable for child support, except in extraordinary circumstances. That means that the new spouse of a parent who is liable for child support is generally not liable for his spouse’s support obligation.
2. How is child support calculated?
The federal Family Support Act of 1988 requires every state to promulgate numerical child support guidelines. The guidelines implement a federal requirement demanding not only that guidelines be established, but that such guidelines form the presumed standard when fixing the amount of child support. This presumption in favor of a numeric computation of the support obligation is rebuttable only by a showing that the guideline figure would be “unjust or inappropriate,” based on criteria established by the state. The guidelines are designed to overcome three of the persistent problems in the award of child support: insufficient levels of support, inconsistency of criteria used by judges to fashion awards, and inefficiency in the adjudication of child support. The formula attempts to balance the child’s needs and the parents’ ability to provide for those needs.
In most states, the basic child support obligation is calculated by combining the incomes of the parents and multiplying that figure by the percentages set forth in the guidelines. These percentages vary according to the number of children. This number, the total child support obligation due, is then assigned to the parents according to the proportion of their individual contributions to the parents’ total income.
In addition to the guidelines amount, a court may be authorized or required to award additional sums for a) child-care expenses for employed parents or those furthering their education; b) maintenance of health and life insurance, or reimbursement of health-care expenses, for the benefit of the children; c) private school and college tuition; and d) child-care expenses for parents seeking work.
3. When can the court deviate from the guidelines?
Courts have broad discretion to deviate from the guidelines when appropriate. Some of the factors courts may, and do, consider, are: 1) the educational needs of either parent; 2) the needs of the children presently supported by the noncustodial parent who are not subject to the current support action and whose support has not been deducted from the determination of the noncustodial parent’s income; 3) extraordinary expenses incurred by the noncustodial parent in exercising visitation rights. The guidelines are often applied in an adjusted manner in the case of shared or “split” custody arrangements. Courts may also consider any other factor they deem relevant.
4. What income is included in the computation?
In the vast majority of cases, child support is awarded based on reported wages of the payor, as demonstrated by income tax returns. However, to avoid injustice, a court may also include in the “base” to which the guidelines are applied certain forms of “imputed” income. Under some circumstances, the income from a payor parent’s spouse (i.e., the supported child’s stepparent) may be deemed to be “available” to the payor for purposes of determining child support obligations. This is likely to occur when, for example, a payor mother has become a housewife in a new marriage and left her old job. As noted above, non-parents are generally not themselves liable for support, however.
5. What court procedures are used to make a support determination?
As noted above, the right to support is not dependent on the marital status of the parties. Thus, support may be awarded during or after a marriage, in a divorce proceeding, or in a separate support proceeding whether or not the parties have ever been married. The proceeding is usually relatively simple, because the issues are generally limited to the application of guidelines percentages to the payor’s income. A typical support-only hearing may be concluded in a few minutes. At the conclusion of the hearing, the court orders the payor to pay support on a regular basis. In most states, the court will order that the amount be deducted from the payor’s wages by his employer and transmitted automatically to the recipient.
6. I have an order for support, but he/she still won’t pay!
Getting a child support order isn’t the final step in the process. In many cases, it barely seems to be even the first step in the struggle to collect the child support your child is entitled to receive.
There are many enforcement devices available in most states. These include income execution (deducting money from the payor parent’s wages), making a negative report to credit reporting agencies, collecting past-due child support from lottery prizes won by the payor parent, intercepting tax refunds due the payor parent from state and federal income tax authorities, property executions (using legal procedures to seize property the payor parent owns, such as real estate and bank accounts), medical support enforcement (where the employer is required to deduct health insurance premiums from the payor parent’s wages similar to an income execution).
For most custodial parents, if there is any difficulty in collecting support, it is worthwhile applying for support enforcement services at the local child support enforcement agency (call them and ask them how as the procedure varies from state to state).
7. How do I locate a missing parent so I can enforce a child support order?
Many states have a parent locator service. Call your state’s support enforcement agency and ask about the parent locator service. If they are not able to help you, you can often locate a missing parent if you know what state he or she resides in simply by asking for a search of the motor vehicle records for that state. Also, don’t forget the simple method of simply calling information (555-1212) for the area where you last knew the payor parent to reside; many, many “missing” persons have been found that way! Also, don’t forget to ask friends or relatives of the payor parent, since many people will give up information about a missing parent because the missing parent has failed to pay child support. If all else fails, a private detective can be asked to conduct a search. Often, they can quickly and fairly cheaply locate a person simply using computer searches. However, private investigation can get expensive.
8. How do I collect if the payor parent lives in a different state?
All states have passed the Uniform Reciprocal Enforcement of Support Act (“URESA”) or a comparable statute (Connecticut, effective January 1, 1998, has adopted the Uniform Interstate Family Support Act [“UIFSA”], a similar statute with greater protections more simplified procedures) providing for interstate collection of child support. This Act sets up the method for enforcement of support orders where the parties live in different states. Essentially, the party seeking enforcement files a petition in his or her home state. That petition is transmitted to the payor parent’s home state and he or she is brought into the court of that state. Usually the custodial parent in a URESA/UIFSA proceeding is represented by an attorney who works for a government agency in the payor parent’s home state. If you wish to file a URESA/UIFSA petition, you should be able to obtain the assistance you need to file the petition and get an attorney appointed to represent you in the other parent’s state by contacting your local child support enforcement agency.
9. I cannot afford to pay the support I owe!
If you are the payor parent who is faced with an order directing payment of child support that is more than you can pay, don’t just ignore the problem!!! Often, circumstances have changed since the support order was first made (e.g., the payor parent has been laid off or has become disabled, or a child has become emancipated or has come to live with the payor parent). If circumstances have changed, it is often possible to get the support order lowered to a more manageable level.
10. Can I transfer assets to my mother, father or spouse so that they cannot be taken for the child support I owe?
Transfers of assets to avoid payment of child support can often be set aside by a court. Furthermore, if the court determines that you transferred away resources to avoid your child support obligation, that could form the basis for a finding of willful violation of a court order and result in a jail sentence.
11. Can my spouse’s wages or assets be taken to satisfy a child support obligation I owe?
Generally a person is only liable for the support of his or her own biological children, for the support of adopted children or for children otherwise legally agreed to be supported by him or her. If you voluntarily reduce your income or transfer assets or income to your spouse, the assets of your spouse may be deemed to be available to you for purposes of determination of your own support obligation. However, before liability will be imposed on a non-parent spouse, court proceedings are required to show unusual circumstances rendering that person liable.
12. If the payor goes to jail for non-payment of child support does the support still have to be paid?
Yes. In many jurisdictions, the payor parent is given a period of time to pay the support before the period of incarceration begins. If the support is paid within that period of time, the jail sentence will not have to be served. However, if the payor parent does spend time in jail due to a failure to pay support, it usually will not discharge the support obligation. He or she will still owe the money. In some jurisdictions, however, collection of support might be stayed during the period of incarceration.
13. Do I need a lawyer?
Having a lawyer is always worth considering. If you cannot afford a lawyer, often there are resources available to you at state expense. Check with your local Legal Services Corporation unit, Legal Aid Society or the court clerk. There are many state agencies that assist recipients of child support in obtaining support orders and collecting the amounts due.
World Law Direct also offers back-up support, legal assistance, 24 hour lawyer access, and pleadings drafting for persons that choose (for whatever reason) to go to court themselves without a lawyer.
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