CHILD SUPPORT

FAQ

+ Will I have to pay child support, and how much?

Child support, which is supposed to be support for the child, often also includes items which go towards the support of the other spouse as well. The cost of housing the child and providing heat and electricity for the child are items that inure to the benefit of both the child and the other spouse, yet they appear to be included in “child support.” So in many states, support is not measured solely by what it costs to raise a child. This is partly due to the fact that it is nearly impossible to invent a formula for all families that predicts what they will spend or should spend on a child, as there are too many variables. Instead of making an inquiry in court as to the parents’ net worth and incomes and the state’s cost of living figures, the states invent simple formulas to use. Some are better than others. Few are accurate for all families. There are simply too many variables.

The states differ widely in how they determine child support, with most all of them having a formula-based percentage applied to the gross income of the payor spouse. More recently, these formulas (required by federal law) take into account the recipient’s income as well, recognizing both parties’ obligations to support their child.

Many states also have factors which may cause a deviation from the percentages applied for child support, such as multiple children, costs of seeing one’s children when a parent is at some distance and must expend money to do so, the payment of college expenses for a child, the fact that the child support order may leave a payor without sufficient funds to live, and other factors. Each state’s laws and regulations much be checked to determine what it considers an appropriate child support amount.

Child support may be paid directly to the other parent or to the department of revenue in the particular state. The latter arrangement is not recommended. The state departments are notorious for failing to keep proper track of payments and for delay in sending payments. This may lead to more expensive litigation and accusations of non-payment. Always try to have payments made directly. If they are not being made, a switch can be made to collection by the department of revenue.

The standard child support formula usually assumes a standard physical custody arrangement, where the child lives primarily with one parent. Where there is joint physical custody or a greater sharing of parenting time, child support is often lowered to acknowledge that each parent is already paying substantial amounts toward their child while the child is with that parent.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ Do I have to pay for college?

States differ widely in the treatment of payment of college. Some states do not require it. Some states look at each party’s income and make an order according to ability to pay for college and the aptitude of the child. Judges generally do not make parents pay for a premium cost college education if they truly cannot afford it. Since college is a form of child support, there is often a reduction in child support when there is an order to contribute to college.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What if I lose my job or take a cut in pay and can’t afford to pay child support? What do I do?

If you unexpectedly lose your job or take an involuntary pay cut, or your business takes a nose dive, for example, and you can’t pay your child support, it may be tempting to agree with your spouse to lower child support for a while. That is fine, but you must immediately file a modification action. You have no right to rely upon a promise by your spouse to accept less support.

Unlike the parenting plan, if both of you agree to lower support, but you have not returned to court to obtain a new court order, the old, higher court order remains in effect, and there may be nothing a judge can do to change that, except by the use of elaborate and difficult arguments.

Your spouse may take the lesser amount for two years by oral agreement with you, and then sue you in contempt for the back support, and your spouse will almost always prevail. At that point, you may owe $20,000, $30,000, or more, and you will owe interest on the amount – interest that runs monthly.

As the court says, “You can’t bargain away the rights of your children,” so you must obtain a new court order immediately for the lower amount of child support. If your spouse is serious about the agreement to take less, you both can sign such an agreement and submit it to the court to obtain a temporary order in a modification action. In general, the court cannot relieve you from responsibility to pay the higher amount unless you file for a modification, and then only from the date the modification is served. Be warned.