Child Support
Along with child custody and visitation, child support is one of the most litigated and contentious issues that arises in a divorce case-and in the aftermath. While most other issues in a divorce case are resolved once and for all by the final decree, or shortly thereafter when transfers of title and property are complete, child support issues may continue for years after the divorce is finalized.
Each state has its own set of guidelines on how child support is calculated, and its own enforcement mechanism for delinquent child support.
How Child Support Is Calculated
Child support is typically independent of other issues in a divorce case. While (to differing degrees in different states) issues of misconduct, dissipation of assets, and other lifestyle details may impact custody determinations, division of debts and assets, and even alimony, child support is generally fixed by a formula established by state law or court rules and flexible only to a very limited degree.
The child support guidelines have been established by each state in an effort to create a uniform system that accounts for the needs of the child, the ability of the non-custodial parent to support him or herself, the standard of living the child would have enjoyed had the parents not divorced, provision for additional children of the parties, and other factors.
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In some states, the standard child support calculation is based only on the income of the paying spouse. For instance, the Indiana Child Support Guidelines factor in the income of both parents and assign each a proportionate share of living expenses as set forth by the guidelines, while the Massachusetts Child Support Guidelines consider only the income of the non-custodial parent in setting the base amount of child support. Different states also use different methods to address things like extraordinary living expenses, college tuition and expenses, and the necessity of supporting other children not of the marriage.
Penalties For The Refusal To Pay Child Support
In most states, child support orders are subject to automatic garnishment, so that as long as the non-custodial parent remains in the same job, non-payment does not become an issue. However, there are a number of reasons that a garnishment order might not be in effect. For instance, a couple may have divorced before garnishment orders were automatically entered and never have had an order entered, or may have divorced in a jurisdiction that makes garnishment discretionary. The paying spouse may have changed jobs or become unemployed. In those cases, the custodial parent typically has private recourse or can opt to ask a governmental agency to pursue delinquent child support on her behalf.
Failure to pay child support can result in jail time. A non-paying parent can be sentenced to jail for contempt of court, because failure to pay child support is in violation of the divorce decree or temporary support order. In many states, a seriously delinquent parent may also be charged with criminal non-support of a dependent.
Governmental agencies charged with child support enforcement have a variety of other enforcement tools at their disposal, including:
- The suspension of the non-paying parent's driver's license
- The revocation of any professional licenses the non-paying parent may hold, such as a medical license or license to practice law
- Seizure of income tax refunds
Modification Of Child Support Orders
If there are legitimate reasons behind your inability to pay child support, you shouldn't simply refuse to pay. Instead, you can petition the court for a modification of your obligations. Likewise, a custodial parent can petition the court to modify the child support order if circumstances warrant an increase in payments. Grounds for modification of child support are generally set forth in the statute governing divorce and child support orders, and may include:
- A significant reduction in your income.
- A serious illness or disability.
- A change in your child's circumstances (such as an inheritance or the attainment of the age of majority).
- A change in the financial circumstances of your ex-spouse
Many states also set statutory limits on how often child support orders can be modified.
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If you have questions about the specific child support laws in your state, please review the state law section of our website. If you would like to speak to an experienced divorce attorney about your specific situation, we make it easy for you to do so. Simply fill out our divorce case review or call 1 (877) 349-1310, and you will be connected with a participating divorce attorney in your area who will schedule an initial consultation with you.