How child support is calculated: Part 2
On Monday, we started talking about child support, and how it’s calculated. It’s actually pretty straightforward, though the child support guideline figures can vary dramatically, which makes it a refreshing area of law.
We ran the guidelines a bunch of different ways, using the same income figures, to show you the difference between one and two children, and primary physical and shared physical custody. It can make a big difference!
There are lots of issues that come up when it comes to child support, even if the numbers are straightforward. We’ve just begun to scratch the surface.
He won’t pay child support. What do I do?
Child support is the law. Assuming that the numbers support an award of child support, he will have to pay it. It’s not really optional.
Of course, you can ignore it and do nothing about it, and that’s also not to say that he’ll immediately and easily agree in writing to pay the child support to which you (and by you, I really mean to say your children) are owed. But there’s a quick and (relatively) easy way around that: you can file for support in the juvenile court.
The good news? Child support is retroactive back to the date you filed for support, so you won’t lose out on any time before then.
The bad news? Well, you might have to go to court. And, besides that, it could bring related issues of custody and visitation to the forefront as well, which may not be super pleasant to deal with.
Still, the court will calculate and order support, and award it to be paid retroactively, which could mean that he starts out with a big arrearage to repay to you.
What if he refuses to pay court ordered child support?
It doesn’t happen much, but it does happen. The Division of Child Support Enforcement (DCSE) as well as the courts can help, though, if he DOES refuse to pay child support.
Ultimately, if he won’t pay, he could face jail time, but we have other ways of getting child support from him, too. It’s possible to set up a payroll deduction, or even to have his annual tax return garnished. Those aren’t the first steps we take, but, ultimately, later on down the line, we could.
Lots of parents choose to have a direct deposit set up on child support, too, so that they don’t have to actually remember to pay it.
My experience tells me that he may refuse to pay, but that’s probably mostly an attempt to frustrate you. Since he likely won’t want to face jail time, and other possible repercussions, he ultimately will pay up – though he might not make it easy on you in the meantime.
If it’s ordered, whether in an agreement (as long as it’s entered by the court) or because a judge specifically ordered it at your hearing, he’s legally required to do it, and faces penalties if he does not.
Can I waive child support? Or reserve it to be determined at a later time?
Yes, of course. If you don’t want to push the envelope, no one is going to make you. Not an attorney, not a judge, not DCSE, and certainly not your child’s father.
We see this fairly often, especially in divorce cases. You can’t get an agreement in place because he’s that guy who thinks he can push you into not making him pay child support. And you CAN push him, but, if you don’t get a separation agreement in place, you’ll have to file for divorce, and it’ll be more expensive and messier, too.
Maybe, after you’ve weighed the cost/benefit of your course of action with your attorney, you decided to waive – or, better yet, reserve – child support to be determined later. Without that scary child support number in there, he’ll agree, and you can get your simple uncontested divorce and move on with life.
But you know something he doesn’t know. You know that custody, visitation, and child support are all modifiable if there has been a material change in circumstances. And, if you RESERVE child support, you don’t even NEED a change in circumstances! As soon as the ink is dry on that separation agreement, you can trot yourself down to the juvenile and domestic relations district court and you can file for child support. He can’t change custody and visitation without a material change, and if virtually no time has passed, then there probably hasn’t been a material change in circumstances.
The judge will calculate support, just like your attorney would do, and order that he has to pay support according to the guidelines. He may be mad, but, hey – child support is the law!
What about extracurricular activities and summer camps? Will my husband be expected to pay a portion of those as well?
Technically, no. Though if you reach an agreement on these points, you can hold him to it, the court probably won’t require that he pay extra.
These expenses are supposed to be included in guideline child support. I know, I know – those numbers aren’t exactly generous as-is. How can you afford the extras on top of it all? Well, the court is super behind modern parenthood, and these figures aren’t included.
Upward and downward deviations in child support
Though you could argue for an upward deviation in support to encompass these expenses – which you could also do to reflect, say, car insurance, private school tuition, or additional expenses related to AP exams and college applications – that’s just an ARGUMENT you could make. You can present evidence of your expenses, and the judge can either grant or not grant the deviation. Your likelihood of success depends on your argument, the specific expenses involved, your child’s father’s income, the duration of the proposed increase, the judge, his mood, the particular day, etc. It’s impossible to predict!
He could ALSO argue for a downward deviation. Hey, it goes both ways! I’ve not seen many of these arguments be successful, but it’s possible – the judge could grant it! I had a case like this not too long ago; a husband made an argument for a downward deviation because he had recently had to move (he was in the Navy), and he had spent so much on his legal bills that he couldn’t afford to pay so much in child support. The judge was furious (even pointed out that the Navy covered the costs of the move!), gave him a good scolding, and ordered support by the guidelines.
I think a good way of thinking about it isn’t “How much do I have left to pay child support after I pay my bills?” but rather “After I pay child support, how much do I have left to pay my bills?” Child support is a primary consideration.
What if my child has special needs and additional medical expenses? Does child support reflect those costs?
Well, not exactly. Guideline child support is what it is. But, again, you could argue for an upward deviation, depending on what your child needs.
Keep in mind, though, that health insurance expenses are often a different category. One party pays for the healthcare costs for the children (which is included in the child support calculation, as we already discussed), and then unreimbursed medical expenses – that is, those costs that aren’t covered by health insurance, like copays – are split pro rata by the parties. Pro rata means proportionally, based on your incomes. So, if he earns 60% of the income, he’ll pay 60% of the medical expenses.
To the extent that your extra charges are NOT unreimbursed medical expenses, or not covered by health insurance, though, I would think those would make very good arguments for an upward deviation.
What about my new husband’s income?
If you’ve remarried, and particularly if your new husband’s income is higher than your child’s fathers income, your child’s father is likely to be a little bit salty about it. I can’t tell you how many times I’ve heard arguments that the child is deriving support from the stepfather, and so he needs to receive less child support from the father. Or some sort of variation on a theme.
Child support is between biological or adoptive parents only. To the extent that either or both of you remarry or form another partnership, it has no impact on the child support that you both owe to the child. You’ll share the guideline amount based on your income (and as offset by the other factors we discussed earlier – health insurance, child care, etc). It doesn’t matter whether your new husband is providing some level of support (which, let’s face it, he probably is); none of that lessens your child’s father’s obligation to the child under the law.
Likewise, it doesn’t matter if he remarries. It’s only his income that goes into the formula to calculate the guideline; we don’t combine his income with hers. She has no obligation to the child legally.
If you have other questions about child support calculations or need additional help where your child support is concerned, give our office a call at 757-425-5200.