It's now time for us to talk about the most difficult thing in any divorce – the children. Sometimes a divorce can have devastating effects on children, effects that last a lifetime. You must make all decisions regarding the children based on their best interests. Not for leverage. Not for revenge. Not because it is cheaper or easier. But for them.
If any point I make stays with you let it be this. In the years we have been practicing – nearly forty years between us – I have never seen a judge . . . another lawyer . . . any sheriff, intentionally harm a child.
But we have seen more moms and dads than we care to remember do such crummy rotten things that we have felt ashamed to be parents. If your spouse is going to use the children to hurt you or for purposes of securing economic advantage then we need to talk. If you are going to use the children to hurt your spouse or for purposes of securing economic advantage, then save your money – most lawyers, including us, don't want to represent you.
Just want to make it clear how we and the vast majority of lawyers we know feel about this type of "litigation technique."
And no matter what anyone has told you, the only time a child decides where she or he wants to live is when they are 18 years of age. Of course the older a child gets, the more weight a judge will give to his or her wishes. So the issue of children breaks down into support and custody. We will take the easier one first.
With that having been said, the most common question involving children is, "How much is child support?" Unlike maintenance, there are pretty exact guidelines setting child support to be paid by a non-custodial parent. Child support is based on a percentage of the paying parent's "net income" for the purpose of calculating child support.
Section 505 - the child support law says:
(3) "Net income" is defined as the total of all income from all sources [this includes overtime and bonuses side jobs and tips – explanation added], minus the following deductions:
(a) Federal income tax (properly calculated withholding or estimated payments),
(b) State income tax (properly calculated withholding or estimated payments),
(c) Social Security (FICA payments),
(d) Mandatory retirement contributions required by law or as a condition of employment,
(e) Union dues,
(f) Dependent and individual health/hospitalization insurance premiums,
(g) Prior obligations of support or maintenance actually paid pursuant to a court order,
(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts.
The Court shall determine the minimum amount of support by using the following guidelines: A judge in some situations can award child support in amounts either above or below the percentage guidelines. This might occur when a child has special needs or where the paying parent has an extremely large income. Realistically, the average child does not need 20% of a net income of $200,000 for support. A court can award child support on a temporary basis while the case is pending using the same guidelines. Child support is not intended to be a jackpot for custodial parents – if a division of income between spouses is due it should be as maintenance. We can give you a good idea whether your particular situation is one where a judge might go above or below the guidelines. However, I can tell you that in the vast majority of the cases, the guidelines are in fact followed.
A few more answers to often asked questions.
"If I have joint custody does it lower my support?"
Not normally. If the other side has primary physical possession or is the residential parent then child support is per guidelines.
“Why do I have to pay on overtime – it's not guaranteed?”
A judge has to base her or his decision upon a pattern of earnings. If you have consistently gotten overtime then the support will be based upon your average salary – with the average being based on the last year or two.
"No one needs that much money for a kid, do they?”
You have to remember child support goes towards all the expenses of a child – food, clothing, a portion of the rent or mortgage, part of the utilities, car expenses etc.
“How am I supposed to live?”
Good question. Sometimes we don't have a really good answer. The brutal fact is that many people sharing all expenses are just making it with both parents working. When you have two households everyone suffers. You take the extra job, make the clothes go a little bit farther and do without. You borrow from friends and family and are generally in tight circumstances. Thank god, kids grow up, but until they do, they come first and you tighten your belt until they are on their own.
What about when a parent just doesn't pay the child support they're supposed to?
Everybody's heard about deadbeat dads, and deadbeat moms for that matter. It's a very sad fact but there are parents out there who do not live up to their obligations. When this happens, you generally have a choice. You can ask the State's Attorney to represent you or you can get a private attorney. The good thing about the State's Attorney, of course, is that there's no charge to you. The bad thing is that, sometimes our clients tell us, they are incredibly slow. Often times it takes them years to do what a private attorney might be able to do in a month or two. That's not to say that the people working in the State's Attorney's office aren't any good at what they do. It's just that, as you can imagine, their office is pretty backed-up with cases and they simply cannot pay as much attention to each particular case as a private attorney with fewer cases.
Whoever represents you when trying to collect on support that is owed, the first thing that's usually done is to petition the court for a rule to show cause. We know, this sounds like a lot of legal mumbo jumbo. What this really means is that we go to the court and ask the judge to order the parent owing support to come in to court and explain why he or she isn't living up to his or her obligation. If he or she doesn't have a good reason that parent better either have some money to pay over in court or he or she runs the risk of going to jail for indirect civil contempt of court.
Its rare that someone goes to jail but it happens and is so distasteful that usually once is enough. Of course since someone is losing their freedom, even with a private attorney representing you, it can take months to have someone incarcerated. Due process and all.
As a parent receiving child support you are entitled to have the support paid via an order for support. When that order is served on an employer the child support amount is deducted automatically from each paycheck and then sent to the custodial parent or through the Clerk of the Court.
In addition to paying support the non-custodial parent has to keep the child on his or her medical insurance. If they don't have any they can be ordered to reimburse the other parent for the costs of coverage if that parent has it available or to obtain a private policy and show proof of having it.
We mentioned earlier that child support is usually based on a percentage of a paying parent's net income. That percentage is stated in dollars so an employer does not have to go through any elaborate calculations. Sometimes you can have a judge order a base amount as a minimum, with the other parent responsible for paying the extra directly based on a percentage. While previously percentage orders were subject to a lot of litigation, the legislature has clarified their use and they can be valuable in the case of a widely fluctuating income or an income that is hard to pin down. These orders make for complications and since February of 1998 have been voidable (subject to a court not enforcing them under some circumstances) so you should avoid them.
Number of Children
Percent of Supporting Party's Net Income
1
20%
2
28%
3
32%
4
40%
5
45%
6 or more
50%
What happens if over time a paying parent's income increases, or decreases, for that matter? Well, whenever one of the parents wants a change in the amount of child support he or she has to file what we call a "Petition for Modification of Child Support." Generally speaking, before the court will order an increase in the amount of support to be paid you have to show that there is an increased need on the part of the child. You also have to show that there is an increased ability on the part of the paying parent to pay. Both of these must be shown to have occurred since the entry of the most recent support order.
If a paying parent wants a reduction in the amount of support that parent has to demonstrate that the reduction in income was not intentional and will be ongoing. If, for example, a paying parent is laid-off from his job because his company is down-sizing and the only job he can get is one that pays less money, a court will likely grant a reduction in child support because the reduction in income was not his fault. However, if the paying parent decides to just get up and quit his job and not work so that he won't have to fork over any money then a judge will not be very sympathetic and the original amount of support will still be owed.
The obligation to pay support lasts until the child graduates from high school or turns 19, whichever comes first. This is new and went into effect January 1, 2004.However, the obligation can be extended where the child is mentally or physically disabled and not emancipated.
An issue related to child support but legally very different is payment of educational expenses after high school. Unlike child support for minors, there is no clear-cut mandatory guideline for determining how much a parent is going to be required to pay for post-high school educational expenses. Generally speaking, a parent will be required to contribute to the extent he or she is able. However, it's important to note that a court makes decisions regarding post-high school education based not only on the financial resources of the parents but of the child as well. In considering the child the Court will look at college savings, summer employment, loans, scholarships and grants. If the child has the ability and aptitude there is a very good chance both parents will have to contribute to college.
There is still another variation in support. As we said earlier, maintenance is usually going to be taxable to the person receiving it and deductible for the person paying it. However, in some cases, the parties might agree to an arrangement known as unallocated maintenance. What this means is that the amounts for maintenance and child support are lumped together and for tax purposes the entire amount is treated as maintenance. Therefore, the amount paid for child support is also taxable to the person receiving and deductible for the person paying.