This article provides answers to the most frequently asked questions about child support. It is a general guide to how most states approach common issues concerning support payments including calculation of obligations, increases and reductions, failure to pay and failure to appear in court.
How does a court determine the amount of my child support payments?
Most states have rules and guidelines that will generally set the amount of support payments. In some jurisdictions, the judge has some discretion in modifying the ultimate amount. A significant factor is the amount of money the support paying parent earns. This may be decreased but also increased to expected potential earnings rather than actual in special circumstances, such as when the court believes that you may be under-reporting your income.
As a rough, general rule, the amounts paid will usually be around the following and based on a percentage of your monthly net income:
These are not absolute numbers and actual support amounts can be affected by many facts and circumstances, such as joint custody requirements. For comparative purposes, as of 2012 New York State ranges from 17-35% or greater with regard to payment obligations for one to 5 or greater children.
- 20% = 1 child
- 25% = 2 children
- 30% = 3 children
- 35% = 4 children
- 40% = 5 children
- 40% or greater = 6 or more children
How can a parent make child support payments?
- Voluntarily: The parent paying support parent pays the custodial parent (the parent who is the primary caretaker) directly. The parties can decide the most efficient manner, e.g. cash or check.
- The hard way: Pursuant to a court order, the supporting parent's wages may be garnished and that amount is sent to a state agency which then disburses the proceeds to the custodial parent.
Can I pay for items the child needs personally instead of through a child support agency?
Child support payments can generally be made in two ways - an amount directly sent to the custodial parent or paid to a child support collections agency. If you buy items such as diapers, kids clothes or baby toys and give them to the custodial parent, this will likely be considered a gift and not considered a reduction of the child support you owe.
What happens if a parent cannot afford to pay child support?
Not being able to afford a child's care doesn't release you from your responsibilities. There is no "bankruptcy" equivalent in family law that wipes away your financial obligations as a father. A reduction of child support payments normally requires convincing the judge that the state guidelines are not appropriate or don't bring about a justifiable result in your case. Factors to be used include:
The parents can also agree upon an amount different (and less than) the state guidelines. However, many states require that such an agreement be written and approved by the court (which is reflected in a court order.)
- the ages of the children
- the needs of the children (such as special care)
- actual child care expenses incurred and necessary to allow each parent to work and earn a living
- any other factors that affect the best interests of the child
If I fail to show up in court, can the court determine child support payments without me?
A court will determine the amount of child support payments you owe and doesn't require your presence. It is only to your benefit to show up and make yourself heard or be subject to the amount the court determines is just and fair in the best interests of the child. It is far more difficult to reduce the amount of support payments after they have been calculated and ordered than it is to reduce the potential amount before a final decision is made.
What if the court doesn't know my actual income? How can they calculate my support obligations?
Absent other factors, a court may assume that you are employed with a full-time 40 hour work week and at no less than the federal minimum wage currently being paid.
How are past due child support amounts handled?
You will have to pay the back child support owed. In some states, you can also be charged interest on any outstanding amounts. Collection fees may also be imposed if necessary and incurred.
Why is the amount of child support greater than my periodic payment?
It is possible that a fee was added in which you are required to share in payment. For example, if you are the father of a child you might be responsible for costs of a paternity test, medical bills incurred by the mother (including those related to pregnancy and childbirth), health care expenses and other such costs. If your wages are being garnished, additional administrative fees may be tacked on, such as by your employer for having to send out another check for a portion of your wages to a collections agency.
How can I reduce the amount of my child support payments?
It's certainly easier when you and the other parent can agree on a set amount and have the court issue an order to amend the support order. It's not as simple when the custodial parent objects to your request. In such circumstances you must convince the court that
Some states are more prone granting reduction requests if it has been at least 3 years from the date of the last order or amendment and the reduction represents at least a 20% difference from the current payment.
- (i) your modification will not significantly affect the best interests of the child, and
- (ii) that there has been a substantial change in circumstances which significantly affects your ability to pay (or that it would be grossly unfair to expect you to make such a payment.)
Can a reduction in child support payments be used to reduce back support payments?
If you owe back child support then that's what you owe. A reduction in child support payments is only prospective in nature.
What happens if I lose my job and can't pay child support?
If your ability to earn money has been significantly reduced, you should formally report this matter to the court as soon as possible by obtaining a judicial order. Calling the court clerk isn't sufficient. An order from the judge must be issued to reduce your payment requirements and may be temporary or permanent in nature (for example, if you suffered a serious personal injury and have become disabled.)
If I fail to pay child support, can I be arrested and put in jail?
In most states, a failure to make court ordered child support payments is considered "contempt of court." Each violation may result in your having to pay a fine, attorneys' fees and court costs in addition to being arrested and jailed for up to six months. As in all criminal cases, a lawyer (public defender) will be appointed for you if you cannot afford one. Nonpayment of child support can also be prosecuted as a felony crime. If you are convicted, it may be considered a "crime involving moral turpitude" and enough to have you deported if you are not a United States citizen.
If I go to jail, what happens to my child support payment requirements?
Even though you may be incarcerated, your child still requires care and your parental obligations are not extinguished. What you need to do is to apply to the court for a reduction in child support payments as the court will recognize that there has been a substantial change in your ability to earn income to support your child. There are two caveats: (i) you cannot extinguish any back child support payments you already owe with a support reduction, and (ii) you should expect your payment amounts to rise substantially once you are released from prison and able to earn income.
What garnishment or other penalties can I suffer by failing to pay child support?
In many states, a court can order any or all of the following:
- Garnishment of Social Security benefits when the wage earner dies or reaches the age of retirement (entitlement to benefits);
- Contempt of court ordered child support can result in jail and being responsible to also pay significant fines and court related costs;
- Requirement to pay interest on outstanding payments;
- Have your outstanding obligations sent to a collection agency which may result in a negative rating from a credit reporting agency;
- Revocation of your driver's license;
- Using your tax refund to satisfy outstanding obligations;
- Denial of federal and state benefits, including grants, loans and other licenses.
- Divorce & Family Law:
- Child Support Calculations
Child Support Child Support: Answers to Frequently Asked Questions
By Michael M. Wechsler |
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