Do I Have to Pay Child Support if I Don't Get to See My Children?

By: LawInfo

Published: 11/2008

It hardly seems fair to pay your child support on time, week after week, month after month, only to have your ex-husband or ex-wife prevent you from seeing your children. In fact, problems with visitation are one of the most common reasons given by parents for not paying their child support. However, child support and visitation are two totally separate issues, and you cannot stop paying child support simply because your ex-spouse is not allowing you to see your children.

While it is tempting to stop your child support payments in order to get back at your ex-spouse for not letting you see the kids, it won’t help you out in the long run. Just as your ex-spouse is ordered to allow you visitation with your children, you are ordered to pay child support. Therefore, if you don’t pay child support, for whatever the reason, you are violating the terms of a court order, and you can be punished by the court for doing so. It will also not reflect well on you if you complain to the court about your ex-spouse violating a court order by not allowing you to visit, when you are also violating a court order.

The only exception to this rule, which is rare, is when your ex-spouse disappears with your children for an extended period of time, which effectively prevents you from having any contact with your children at all. In this case, some courts have held that a parent’s child support obligation should stop, at least on a temporary basis, until the ex-spouse and children are located.

Barring this exception, you should continue to pay child support as ordered, even if your ex-spouse does not allow you to see the children as ordered. The proper remedy for problems with visitation is to turn to the court for assistance, not to stop paying child support. Just as you can be held accountable and/or punished by the court for failing to pay child support, your ex-spouse can be similarly held accountable and/or punished.

If you are having trouble with your ex-spouse over visitation, your best bet is to seek advice from an attorney who can advise you what steps to take next. While you might be able to work out visitation problems informally with your ex-spouse in some circumstances, you may need more formal assistance with this issue. A lawyer can contact your ex-spouse, or his or her lawyer, and try to come to some sort of resolution as to visitation with your children. If reaching an agreement is not possible, then the lawyer can help you use the court system to enforce your rights to see your children as ordered. For instance, if two parents cannot agree whether the father should have overnight visitation with two young children, then the court will make a determination of whether overnight visitation is appropriate, and how often it should occur. In any case, the court can help you enforce your visitation rights, and it is a much smarter solution than simply stopping your child support payments in order to get back at your ex-spouse.

How to Modify a Child Support Order

By: LawInfo

Published: 07/2010

An initial child support order is usually made on the basis of the income of both parents, the needs of the child and other relevant matters. If you feel that an existing order has now become burdensome or inadequate you should consult an attorney because you may be able to have the existing order modified.
STEP 1 – Evaluate Whether Your Circumstances Support a Modification
In most states modifying a child support order requires proof of a change of circumstances in either of the parents’ employment or a change in the status of the children since the original order; such as the child may now need expensive medical care or may be enrolled in a special school. The idea here is that the changed circumstances render the original order either inadequate or burdensome.
STEP 2 - Document Your Supporting Evidence
If you were required to file an income statement when the original child support order was entered you will probably be required to do so again. Gather documentation that supports the change in circumstances underlying your request for a modification. For instance, document your decrease in wages or loss of a job, or the other parent’s increased wages, or the increased medical expenses you must pay for a child, etc.
STEP 3 – Determine What Form Must be Filed
Some courts utilize standardized forms for modification of a child support order requests. Contact your local court for more information. For instance, sometimes the request is called a "petition" for modification or a "motion" for modification, etc. Also, there may be supporting forms that must be used, such as an affidavit regarding your financial matters or a financial worksheet. Finally, you may have to file several copies of your documents with the court - the clerk of the court will "stamp" the copies and give them back to you to serve to other parent.
STEP 4 – File the Documents with the Appropriate Court
Some states have a general trial court for all civil actions while other states have a separate family court.
STEP 5 – Serve a Copy of the Modification Petition on the Other Parent
It is the plaintiff’s responsibility to serve copies of the petition, supporting documents, summons and other required paperwork to the other parent. You may be able to serve the other party through the mail or by having another person deliver a copy to the other parent in person. Most states do not allow the plaintiff to personally serve the other party. (Note: In some states you may also be required to serve your state’s child support enforcement agency.)
STEP 6 – Complete and Return a Proof of Service to the Court
After the other party has been served most states require that a “proof of service” be returned to the court. A proof of service is a standardized form used in the courts wherein the person who completed the service attest that copies of the court documents were in fact sent to the other parent.
Throughout the above steps you will undoubtedly consult with your attorney regarding the process, the chances the court will grant your request, and other matters related to your particular situation. Child support orders are not indefinite. A judge will modify an existing child support order based on the parents’ and the child’s then current circumstances. The overriding interest that the judge looks at is the child’s best interests. If you feel that your child’s best interests are not being met by the current support order you should contact an attorney to see about modifying the order.

Calculating Child Support

By: LawInfo

Published: 06/2008

The factors used to calculate child support payments are set by law. To calculate each parent’s child support obligation the law generally applies each parent’s income, including wages, assets such as stocks and bonds, welfare benefits, etc., and the standard of living of the child before the divorce. In certain cases, however, extraordinary needs of the child may be considered and deviations from the guidelines may be allowed. In most states where the court deviates from the guidelines, the judge is supposed to explain the reasons for the deviation in the order.

The amount of a child support award is more than a question of the child’s bare necessities. If the child has a wealthy parent, that child is entitled to, and therefore needs something more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent’s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the other parent has no obligation to support

Child Support Formulas

Child support is a matter of state law and each state has their own system for calculating the payment amount. There are three basic models though that each state falls under:

a) Flat Percentage –
The child support amount is based on a percentage of the non-custodial parent’s income and the number of children they are supporting. The following states follow this rule: Alaska, Arkansas, District of Columbia, Georgia, Illinois, Massachusetts, Minnesota, Mississippi, Nevada, New Hampshire, North Dakota, Tennessee, Texas and Wisconsin.

b) Income Shares – The majority of states follow this model.
The Income Shares model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Prior to the divorce or separation of the parents, the combined parental income is spent for the benefit of all household members, including any children. Thus, the income shares model calculates support as the share of each parent's income estimated to have been allocated to the child if the parents and child were living in an intact household. Using the Income Shares model, the amount of child support is basically determined by calculating the total amount needed for the support of the children and then pro-rating that amount between each parent based on his/her proportionate share of the total income. The obligor parent’s obligation is payable as child support, while the other parent's portion retained and presumed to be spent directly on the child.

For example: if the court has determined that the children need $1000 a month and the parents make a combined $100,000 annually, in which the father makes $60,000 annually and the mother makes $40,000 annually, the father will be required to pay $600 a month and the mother $400 a month.

Alabama, Arizona, California, Colorado, Connecticut, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming follow this model.

c) Melson Formula – Only Delaware, Hawaii and Montana follow this model.
The child support payment is calculated based on a variety of factors (the “Melson Factors”), including both parents’ incomes and the needs of the child.

Support Past 18

Child support orders generally expire upon becoming a legal adult, which usually consists of turning 18 years of age or graduation from high school whichever comes later, or if the child has married, acquired an emancipation order or enlisted in the military.

Though every state does not require child support after graduation from high school some states do require support payments to continue if the child attends college. These states include: Alabama, Alaska, District of Columbia, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Oregon, South Carolina, Tennessee and Washington.

Inability to Pay

The inability of a parent to pay their child support order because they cannot work will not excuse them from the order. Missed payments will accrue as arrears even if a parent is in jail, in the hospital or any other situation which does not allow them to work. When the parent is able to work they will be required to pay back the arrears.

Custody vs Support

Every state treats child visitation and custody separately from the obligation to pay child support. If a parent is not granted visitation by the court or if the other parent interferes with a visitation or custody order the parent may not protest by refusing to pay their child support payments.

Changing an Order

A child support order is entered based on the parents’ current income levels. A parent may not unilaterally reduce or stop their child support payments because of a loss of income or additional expenses. If a parent feels that their current child support payment is too high they may ask the court to modify the order. Until a modification order is entered the original child support amount is still in effect. Likewise, a parent may ask the court to increase a parent’s child support payment because of added income or decreased expenses.

Cost of Child Care

A non-custodial parent may be required to pay part of the cost of their child’s day care if the custodial parent uses day care to go to work. Because the employment of the custodial parent increases the amount of income used to support the child both parents benefit from the cost of child care. Thus, this cost may be divided between the parents (usually 50% each). The parent who actually pays for the child care receives payment from the other parent.

Legal Issue : Can Child Support Payments be Automatically deducted from a Parent's Paycheck?

By: LawInfo

Published: 11/2008

Are you tired of getting your child support payments whenever your ex feels like paying them? Does your ex not always pay the amount of child support that he or she is supposed to pay? One easy solution to these problems is to have your child support payments automatically deducted from the other parent’s paycheck by his or her employer. Taking this step can ensure that you and your child receive the consistent, timely full payments to which you are entitled.

Federal and state law requires, in most circumstances, that a parent’s child support obligation be automatically deducted from his or her paycheck through a garnishment or income withholding order. In some cases, however, there may be a good reason as to why the parent’s child support obligation should not be deducted from his or her paycheck, such as if he or she is self-employed. In this case, he or she can get an order from the court that the payments do not have to be deducted. Nonetheless, in most cases, you can easily have your child support payments automatically deducted from the other parent’s paycheck.

A court can issue a garnishment or income withholding order for the payment of child support. In most states, your local child support agency can also administratively issue an order to have payments deducted from the parent’s paycheck. Therefore, if you know where your ex works, you can ask your court or child support agency to send a garnishment order to that employer in order to have your child support payments withheld from your ex’s paycheck.

An employer has no choice but to follow the garnishment order for child support. Even if an employer receives a garnishment order from another state, the employer is required to follow the order under federal law. In most states, the employer is liable for the child support payments, damages and/or fines if the employer does not properly deduct and send in the child support payments according to the garnishment order.

There are some limitations on the amount of money that can be garnished from the parent’s paycheck. Under federal law, only 55% - 65% of the parent’s disposable income (income after taxes) can be deducted from the paycheck for child support payments, depending on the parent’s current family situation. Therefore, if a parent is only working 20 hours per week at minimum wage, and is ordered to pay you $150.00 per week in child support, the employer cannot legally deduct your entire child support payment. In this situation, then, a garnishment order would not be completely effective.

Finally, it is important to know that a child support order takes precedence over other garnishment orders. This means that if a parent has been sued for an unpaid credit card bill, and the credit card company wants to garnish the parent’s wages for the money owed, their garnishment order will come second in line to your child support order. In other words, your child support will be paid first, before any other garnishment orders.