Attorneys at Law

Disclaimer: The information contained in this FAQ is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to child support. Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state or locality regarding specific information.

Questions are frequently asked regarding the obligation of parents to pay support for their children. This FAQ is intended as a general introduction to the issues related to child support, including who is liable for support (and under what circumstances), how support awards are arrived at, and enforcement and modification of child-support awards. Because the law of child support is governed by state, rather than federal, law, it varies from state to state. A person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. This FAQ should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

Who is liable for child support? Substantially all states have adopted the Uniform Support of Dependents Law. Under that law, "[i]f possessed of sufficient means or able to earn such means, either or both parents shall be required to pay for child support a fair and reasonable sum as the court may determine." This means several things:

First, liability for support is imposed on both parents (whether or not the children are born in wedlock). Second, the amount of support is fixed by a court in an amount determined by the court to be "fair and reasonable," which suggests that fixation of child support can be an inexact science (with the adoption of child support guidelines, the science has become a bit more predictable; see below). Third, child support can be based not on the means "possessed" by a parent but also on the means which the parent is "able to earn."

Child support consists of payments made toward the care, maintenance and education of an unemancipated child under the age of 21. Support payments may be made by either or both parents and can be provided for by valid agreement or by a court order.

Non-parents are not liable for child support, except in extraordinary circumstances. That means that the new spouse of a parent who is liable for child support is generally not liable for his spouse's support obligation.

How is child support calculated? The federal Family Support Act of 1988 requires every state to promulgate numerical child support guidelines. The guidelines implement a federal requirement demanding not only that guidelines be established, but that such guidelines form the presumed standard when fixing the amount of child support. This presumption in favor of a numeric computation of the support obligation is rebuttable only by a showing that the guideline figure would be "unjust or inappropriate," based on criteria established by the state. The guidelines are designed to overcome three of the persistent problems in the award of child support: insufficient levels of support, inconsistency of criteria used by judges to fashion awards, and inefficiency in the adjudication of child support. The formula attempts to balance the child's needs and the parents' ability to provide for those needs when the family is split and living in two households.

In Maryland and most other states, the basic child support obligation is calculated by combining the incomes of the parents and multiplying that figure by the percentages set forth in the guidelines. These percentages vary according to the number of children. This number, the total child support obligation due, is then assigned to the parents according to the proportion of their individual contributions to the parents' total income. The noncustodial parent pays a pro rata share to the custodial parent. For example, the guidelines percentages in New York are applied to gross income (less some generally small deductions) and are: 17% percent for one child; 25% for two children; 29% for three children; 31% for four and no less than 35% for five or more children. The computation under the laws of most other states results in substantially similar dollar amounts of support. For example, in Connecticut, the guidelines percentages are applied to *take-home pay* and are approximately 25% for one child, 37% for two children, 45% for three children, 49% for four children and 53% for five children. California's formula is the most complicated and is generally applied using a computer program.

In addition to the guidelines amount, a court may be authorized or required to award additional sums for a) child-care expenses for employed parents or those furthering their education; b) maintenance of health and life insurance, or reimbursement of health-care expenses, for the benefit of the children; c) private school and college tuition; and d) child-care expenses for parents seeking work.

When can the court deviate from the guidelines? Courts have broad discretion to deviate from the guidelines when appropriate. Some of the factors courts may, and do, consider, are: 1) the educational needs of either parent; 2) the needs of the children presently supported by the noncustodial parent who are not subject to the current support action and whose support has not been deducted from the determination of the noncustodial parent's income; 3) extraordinary expenses incurred by the noncustodial parent in exercising visitation rights. Courts may also consider any other factor they deem relevant. For that reason, it is impossible to predict the exact amount of support a court may order. In the vast majority of cases, however, the guidelines are not deviated from.

What income is included in the computation? In the vast majority of cases, child support is awarded based on reported wages of the payor, as demonstrated by income tax returns. However, to avoid injustice, a court may also include in the "base" to which the guidelines are applied certain forms of "imputed" income. Middle- and upper-class parents who wish to limit the amounts contributed to their children's support have a variety of ways to lower their IRS reportable income. This "emptying of pockets" may take several forms: parents may invest capital in non-income-producing assets, transfer income to others, reduce the amount of income earned, and, where self-employed, pay themselves less while at the same time compensating themselves in the form of amenities available through their closely-held corporations. Courts are generally empowered to impute income from various sources including, but not limited to: 1) non-income-producing assets; 2) perquisites provided as compensation for employment to the extent that such perquisites constitute expenditures for personal use; 3) fringe benefits provided as compensation for employment; and 4) money, goods, or services provided by relatives or friends. In addition, income can also include an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support. This kind of "imputation" would be applied when the payor spouse refuses to work or deliberately takes a pay cut.

Under some circumstances, the income from a payor parent's spouse (i.e., the supported child's stepparent) may be deemed to be "available" to the payor for purposes of determining child support obligations. This is likely to occur when, for example, a payor mother has become a housewife in a new marriage and left her old job. As noted above, non-parents are generally not themselves liable for support, however.

What court procedures are used to make a support determination? As noted above, the right to support is not dependent on the marital status of the parties. Thus, support may be awarded during or after a marriage, in a divorce proceeding, or in a separate support proceeding whether or not the parties have ever been married. The proceeding is usually relatively simple, because the issues are generally limited to the application of guidelines percentages to the payor's income. A typical support-only hearing may be concluded in a few minutes. At the conclusion of the hearing, the court orders the payor to pay support on a regular basis. In most states, the court will order that the amount be deducted from the payor's wages by his employer and transmitted automatically to the recipient.

If the payor goes to jail for non-payment of child support does the support still have to be paid? Yes. In many jurisdictions, the payor parent is given a period of time to pay the support before the period of incarceration begins. If the support is paid within that period of time, the jail sentence will not have to be served. However, if the payor parent does spend time in jail due to a failure to pay support, it usually will not discharge the support obligation. He or she will still owe the money. In some jurisdictions, however, collection of support might be stayed during the period of incarceration. As a practical matter, it seems unlikely that support can be collected from someone while he or she is in jail.

Do I need a lawyer? Having a lawyer is always a good idea. However, many people feel they cannot afford a private attorney. Child support disputes are sometimes complex and often depend on factors that a layman would not consider. Moreover, the parent's closeness to the subject matter makes an objective presentation of evidence nearly impossible. If you cannot afford a lawyer, often there are resources available to you at state expense. Check with your local Legal Services Corporation unit, Legal Aid Society or the court clerk. There are many state agencies that assist recipients of child support in obtaining support orders and collecting the amounts due.

Because the law of child support varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

Copyright (c) 1996 Nancy A. Burnett and Hilary B. Miller