Child Support is often misunderstood by people until they have to pay it. Simply put, each parents’ income minus the FICO Tax is added together and depending on how many children a couple has, the non-custodial parent pays their pro-rata share of that percentage. The percentages are 17% for one child, 25% for two children 29% for three children, 31% for four children and no less than 35% for five or more children. Once there is an Order of Support the non-custodial parent is deemed to be able to earn what the Support Order says he earns. The burden is on the non-custodial parent to prove by a preponderance of the evidence that through no fault of that parent, he/she can no longer earn the amount in the Support Order. During the financial crisis of 2007, the courts could not/did not take judicial notice of the poor state of the economy. This caused a hardship for many people who lost jobs that no longer existed.
When the court deems someone to be capable of earning a certain amount and that person doesn’t, the court considers that person to be in willful violation of an Order of Support. To be found in willful violation of an Order of Support is to be in contempt and the person in contempt of that order can be incarcerated for up to six months. This is a drastic remedy and one the court usually only employs as a last resort.
When a non-custodial parent has a loss of income, that parent may bring a Modification Petition for a downward modification to reduce the amount of support they are liable to pay. That parent has the burden to show that he/she at least attempted to make the same amount of income and the loss of income was through no fault of their behavior.
Another issue that periodically occurs is when parents have children with more than one person. It is possible to be the custodial parent of one child and not be the parent with physical custody with a child by another parent. Its possible even when all the children are by the same parents. When this occurs with two parents with more than one child with each other and each parent has physical custody of at least one child, The parent who is receiving the higher amount of support gives a credit to the other parent.
When a person has a child with one person and has an Order of Support and then has another Order of Support on a child with another person, the support paid on the first child is subtracted from that person’s income for the purpose of fixing support on the second child.
I have often encountered people that have told me that the custodial parent now has higher income and that their support should be lowered. It doesn’t work that way I have to tell people. Remember, it’s the pro-rated combined income minus FICA under the $148,000.00 cap that is used to determine the amount of support. I’ll use round numbers so that its easier to see how this works. If the non-custodial parent has $60,000.00 after FICA and the custodial parent has $40,000.00 after FICA and they have one child, the non-custodial parent would pay 60% of the 17% of the support. Should the custodial parent get a raise, the non-custodial parent would just pay a lower percentage on a higher number and the basic support obligation would remain the same.
Many parents get paid off the books like waitresses and mechanics. It can be difficult to prove off the book income. It may require the use of an investigator and hours of copious work following a person to catch them working off the books on a camera. Some parents obfuscate their income so that they do not have to pay as much as the court would order them to pay. Normally the court will just take the income and put it in the support calculator and tell you the amount that parent will be liable for. If a parent’s income is so obfuscated that the court cannot arrive at a number, the court may impute income to a parent. An example of this would be a parent with no job driving an expensive car. The court could impute the cost of that car to that parent’s income. Should a non-custodial parent so obfuscate his/her income that the court cannot arrive at a number, the court will fix a number based on the need of the child. This happens only in the most acrimonious matters but many divorces are more acrimonious than need be or should be.
I have dealt with many acrimonious divorces. The most important thing is to communicate clearly with your client and have well defined goals and clear paths to achieving those goals. That requires a frank conversation at the time of retention and clear explanations after events occur in a clients matter.