Child Support

The law is the law, cold and cruel without much basis in reality. In most cases, it calculates to what it calculates. In some cases, it is on a case by case basis, as to deviating from the guidelines.

News Flash: New Law for divorces filed on or after October 13, 2010 and for agreements entered or orders issued on or after October 13, 2010. Now child support may be modified after the passage of 3 years or a change in income of 15% up or down. Modifications will be upward or downward. But, still, it is not actual earnings but earning capacity that applies. The provisions of this new law must be included in orders and agreements if the parties “opt out.”

Common questions:

1. My child is almost 21 and is in his junior year of college. His Father is threatening to stop paying child uspport on our child’s 21st birthday, can he do this?

First, it depends on if your divorce was settled by a stipulation of settlement or a separation agreement (or in the event you were never married, if your child support proceeding was settled by an agreement). If it was, read it carefully, especially looking at the section entitled emancipation. If it was agreed to that if the child is still a student, then child support will continue to some point in time past 21, then no, he cannot stop child support on your child’s 21st birthday.

However, if this was not agreed to in the agreement, or your case was decided by a judge, then, yes, on your child’s 21st birthday, he can stop paying.

2. Well, I heard about a new law that I can go back to family court to seek child support past the age of 21 for as long as our child is a student, is this true?

No, it is not.

3. But even if he can stop paying child support on our child’s 21st birthday, he/she still has to continue to pay for our child’s college education, until he or she graduates, right?

Wrong, unless there was a written agreement otherwise, his obligation to pay for anything past the child’s 21st birthday does not exist.

4. My husband is only willing to pay 25% of his income as child support for our two children, this is not nearly enough money, how much can I ask for?

The law is clear, absent extraordinary circumstances, the following is the basic guideline for child support:

      • 1 child – 17%;
      • 2 children – 25%;
      • 3 children – 29%;
      • 4 children – 31%;
      • 5 or more children – 35%.
      • This ’s gross income less FICA only.

5. My husband has custody of our children, and I am being told that I have to pay him child support, but I thought as the mother, I never have to pay?

Wrong, child support is a legal and moral obligation of both parents, regardless of gender.

6. My husband wants joint legal custody, I think he just wants to get out of paying child support?

No, unless he is as uninformed as you are. Joint legal custody only pertains to joint decision making on major issues of health, education, religion and general welfare. It does not affect child support in any way at Joint or shared physical custody might, but not necessarily.

7. How will joint or shared custody affect child support?

Well, first, let’s forget about labels. Whether it is visitation, joint physical or residential custody or shared custody, the question is the same, what is the time division? If your spouse has the child(ren) 50% of the time, then his direct expenses for the children are theoretically equal to yours. So, the Court will then also look to each of your incomes, resources and other expenses, before deviating from the support guidelines. The Court will also establish the parent who has the child even just one second more as being the custodial parent for purposes of child support, regardless of the terms and labels used in the agreement and/or order.

8. My x is always a few days late with the child support, what can I do?

The child support is due in your hands or the hands of the support collection unit on or before the day it is due. The day it is due, is not the day to mail it. It should be mailed on average 5 days in advance to compensate for lag time while in the mail system.You need to ask yourself this, how much does it affect you being a few days late, other than annoying you? To go to court, causes you to lose a day of work, either a day’s pay or a vacation day. It adds to the stress and bitter emotions. It will cause more expense if you hire a lawyer, and there is no guarantee a court will make your x pay for your lawyer. Unless it is causing a hardship, I suggest just leaving it be.Even though the court can have the support garnished by the support collection unit from your x’s pay check, this often causes a delay in your receiving the support for weeks, while they set up the account. Too often I have seen the support collection unit list someone in arrears who is not, or who is, but not for the amount the unit claims. In my opinion, use the support collection unit only if there is no other choice.

9. I do not have custody, do I have to pay anything besides the basic child support?

Usually, yes. A pro rata share of unreimbursed uninsured medical costs, childcare, and college. The pro rata share is calculated by dividing your income ’s income.

10. Can I tax deduct my child support payments?

At one time no. But now there have been some new laws passed so you should ask your CPA.

11. Does the receiver of child support have to pay income tax on it?

No.

12. I owe a lot of money for child support arrears, can I have it discharged in bankruptcy?

No, and legal fees incurred pertaining to the issue of child support is also nondischareable in bankruptcy.