Courts and legislatures on both the state and federal level
have tried to address the problems involved in determining fair and
adequate child support and enforcing support orders. The sad fact remains,
however, that child support is too often neglected or evaded entirely by
the parent who's supposed to pay it.
If you are the parent of a minor child, whether by birth or
through adoption, you have a legal obligation to provide financially for
that child's shelter, food, clothing, education and medical care. No
matter how bitter or unpleasant a divorce may be, no matter how
disagreeable an ex-spouse becomes, even when visitation is unfairly
withheld, your obligation to provide for your child continues until that
child becomes a legal adult.
Federal law now requires each state to establish guidelines
for calculating child support. The purpose of these guidelines is to
eliminate unfair or arbitrary awards of support. In most states, the
guidelines are fairly well defined, and take into account the incomes of
each parent and the number of children to be provided for. The parent who
receives physical custody of the child usually contributes a smaller share
financially, because of the extra expenses associated with having custody.
Unfortunately, arriving at an award of child support is one
thing; enforcing that award is another problem entirely. According to U.
S. Census Bureau statistics, only about 26 percent of parents who have a
court order for child support actually receive all the money they are
supposed to get. One in three children who are entitled to support get
nothing at all from the non-custodial parent.
In an effort to combat this problem, every state has now
passed laws designed to make collection of support from an out-of-state
parent an easier task. They permit a parent who has been awarded child
support in one state to collect it from a parent who lives out of state by
using the court system itself. The court in the state when the support was
awarded contacts the court in the state where the non-paying parent lives.
That court then orders the parent to make the support payments.
While these laws seem to be of great value, they don't
always work as planned. First, the parent with custody has to know where
the other parent is living, which in itself isn't always easy to do.
Second, even if the parent is found, the court in the state where he lives
may modify the amount to be paid, and may be inclined to do so if the
parent claims to be out of work or down on his or her luck. And finally,
given the number of other cases the courts have to deal with, these cases
tend to get relegated to the bottom of the pile.
There are other methods available for collecting unpaid
child support. State laws permit support payments to be withheld from a
parent's paycheck. The IRS can withhold a delinquent parent's income tax
refund and take other steps such as seizing property, and state revenue
departments can also seize tax refunds to satisfy unpaid child support
obligations. A parent who refuses to make court ordered child support
payments can also be subject to charges of contempt of court and can also
face criminal prosecution. In some states, a parent's professional license
can also be suspended or revoked for failure to pay required child
support.
If child support enforcement becomes an issue, it is
necessary to have a legal order for child support spelling out the amount
of the obligation and how it is to be paid. Data from the United States
Census Bureau show that, of the over 11 million families with a parent
living elsewhere, only 56 percent have legally binding support orders.
Establishing a support order depends on how much success you
and your caseworker or lawyer have in several critical areas, such as
locating the noncustodial parent if necessary, identifying what he or she
can pay, and determining the financial needs of the child.
States are required to have child support guidelines
available to all people who set child support amounts. Most State
guidelines consider the needs of the child, other dependents, and the
ability of the parents to pay. States must use the guidelines unless they
can be shown to be inappropriate in a particular case.
States today have arrangements for establishing the support
order by an administrative procedure or other expedited legal procedure.
The hearing may be conducted by a master or a referee of the court, or by
an administrative hearings officer. An agreement made between the parents,
based on the appropriate child support guidelines, and approved by this
kind of agency generally has the same effect as one established in court.
It is legally binding on the parties concerned.
The agreement that the parents make should provide for the
child's present and future well-being. It may be useful to discuss these
issues together if you can, or with a mediator or family counselor. You
may call your Child Support Enforcement (CSE) office to find out about
your State's guidelines.
How does the caseworker find out about the other parent's
income or assets? I don't know much that will help.
The caseworker will make every possible effort to identify
the parent's employment, property owned, and any other sources of income
or assets. This information must be verified before the support order is
final. Under certain situations, the IRS may provide financial information
about the parent's earned and unearned income such as interest payments
and unemployment compensation. The State CSE agency now has access to
financial institution data, such as bank accounts, and credit bureau data,
which may provide information about employers and/or assets.
I'm sure the other parent is willing to pay support. Can
we make an agreement between ourselves and present it to the court?
If parents can cooperate and agree, all the better. You can
get help from a lawyer, mediator or family counselor. The court's sole
interest in your agreement is to see that it is fair to all parties, that
the welfare of the children is protected, and that the agreement conforms
with the guidelines.
Are the earnings of both parents considered in setting
support awards?
In some State guidelines, both parents' earnings are
considered in setting the amount of the support order. Check with your CSE
office. Laws vary from State to State, but parents who can work out a fair
support agreement between themselves will have a better chance of having
their wishes recognized in court.
My wife and I are working out a joint custody agreement.
How would the court decide the amount of child support for each of us?
That depends a lot on the terms of your custody agreement
and on your State guidelines: some States have guideline formulas that
take joint custody into account. The same factors would apply: State
guidelines, each parent's ability to pay, and the needs of the child.
My husband's income is enough to support the children and
me without a drop in our standard of living after the divorce. Do the
courts consider this?
These decisions, again, are based on the State's guidelines.
Of course, parents can try to have the amount of support changed if their
financial situations change.
I just heard that my son's mother has had three
promotions in the last four years but the child support is still like it
was six years ago. Is there some way to find out when she has a raise?
CSE offices will review child support orders every three
years if either parent requests such a review. Ask your caseworker for
information about reviewing and, if appropriate, modifying your child
support order. States can adjust child support orders according to child
support guidelines, a cost of living adjustment, or automated methods
determined by the State. What can I do to get my support increased if it
is too low?
If you go to your CSE office for a modification of your
order, the income and assets of the noncustodial parent, in many States
your financial situation, and any special needs of the child will need to
be determined. If appropriate, the agency can then seek a legal
modification.
Is there a limit to the amount of money that can be taken
from my paycheck for child support?
The amount that can be withheld from an employee's
disposable wages is limited by the Federal Consumer Credit Protection Act
(FCCPA) to 50 percent of disposable earnings if an obligated parent has a
second family and 60 percent if there is no second family. These limits
are each increased by 5 percent (to 55% and 65%) if payments are in
arrears for a period equal to 12 weeks or more. State law may further
limit the amount that can be taken from a wage earner's paycheck.
My ex-husband has remarried and has another family to
support. How will this affect the support that my children are due?
Even though the noncustodial parent has a second family,
this does not eliminate responsibility to the first family. In some
States, the judge may grant the noncustodial parent a decrease in the
obligation based on guidelines for child support. You should be notified
beforehand and given an opportunity to contest the proposed change. Other
factors which could lower the support order include steady employment of
the child or poor health or decreased earning ability of the noncustodial
parent.
My children's father is divorcing again and will have
another child support order. We live in another State and I'm afraid that
this second order will be enforced before mine.
State guidelines may indicate how child support is to be
shared when there is more than one support order. If his income will not
provide for both orders, the amount of support for your children may be
reduced, but you will receive a share of the support collected. For orders
enforced by wage withholding, States must have a formula for sharing the
available income among the support orders. Ask your caseworker for more
information.
I can't get health insurance with my job but my ex-wife
gets good benefits where she works. Can she be required to put the
children on her insurance?
Yes. The CSE agency must petition the court to include
medical support in any order for child support when employment related or
other group health insurance is available to the noncustodial parent at a
reasonable cost. Court orders can also be modified to include health care
coverage.
If you are not receiving cash assistance or Medicaid, the
CSE agency will help you enforce a medical support order if you want it
to. If you do not want its help, you may decline it. For people on cash
assistance, or Medicaid, the CSE agency must order the noncustodial parent
to provide health insurance, if it is available.
Federal law requires States to have laws which should make
medical support enforcement easier. For example, insurers can no longer
refuse to enroll a child in a health care plan because the parents were
not married or because the child does not live in the same household as
the enrolled parent. The law also created a tool that child support
agencies will be able to use to establish and enforce medical support when
the noncustodial parent participates in a group health plan but does not
enroll the child.
This law provides that custodial parents can obtain
information about coverage directly from an insurer, submit claims
directly to the insurer, and be reimbursed directly by an insurer. For
specific information about these laws in your State, contact the CSE
office.
The father of my child is in jail. Can I get support?
Past-due support may accumulate while the father is in jail.
But unless he has other assets, such as property or any income such as
wages from a work-release program, it is unlikely that support can be
collected while he is in jail. Depending on State law, your support order
may be modified so that payment is deferred until he is released and
working.
After I pay my child support, I don't even have enough
money for decent food. When my child support order was set I was making
about $300 a month more than I am now. Can I get the order changed?
Either parent can request a review, and adjustment, if
appropriate, of a child support obligation every 36 months, or sooner if
there has been a substantial change in circumstances such as reduced
income of the obligated parent. Check with your CSE office to see if your
child support obligation is in line with State guidelines and ask how to
request a review.
If your case does not meet the State's standards for review,
either because the order has been reviewed within three years or the
change in income is smaller than would merit an adjustment under State
standards, you may still be able to petition the courts for a hearing. In
this case, it may be helpful to have the services of an attorney. Your
local legal aid society may be able to provide low-cost counsel to parents
who cannot afford a private attorney. Also a number of States have
information about how to handle your case pro se (a legal term for
representing yourself) to have the courts determine if your support
obligation should be changed. Contact your local CSE office or the
court.
