Next to spousal support, child support is another highly contentious area of divorce. The disagreements often start in the early of stages of end-of-marriage negotiations and may continue until children are no longer considered minors by the court. Regardless of what horror stories you’ve heard and regardless of what you think about the child support system there are 4 things every divorcing parent needs to know about child support.
These things will help you understand how child support works and are essential to avoiding child support arrears which could land you in serious trouble, even jail.
How Is Child Support Calculated?
The first step is to understand how your jurisdiction determines child support. Colorado, for example uses a Shared Income Model approach which assumes that parents will share in the support of their child in the proportion their individual gross incomes bear to the family gross income. The guideline establishes an amount that parents are expected to spend on a child’s basic needs such as housing, food, clothing and health insurance. That amount is adjusted for the number of children but two kids doesn’t mean double the amount because there are some expenses, such as housing, that aren’t incremental with an additional child.
That sounds simple enough doesn’t it? Oh that it were. One of the most common complications is with respect to income: A parent may be self-employed with an income that fluctuates significantly; a parent may be under-earning because they are only working part-time or have taken a lower-paying job; a parent may be working more than 40 hours a week through voluntary overtime or a second job. Whatever the specific income anomaly, chances are that it’s been handled before and that’s where consulting with a family law attorney in your area will be beneficial.
Another common variable in child support calculations is the number of overnights a child spends with each parent. This is used as a way to measure how much of the assumed basic expenses each parent is incurring. If a child spends fifty percent of his time with each parent, then each parent is assumed to incur half of the basic expenses.
Again, it’s not a perfect measure. It can create a financial incentive to seek more parenting time rather than genuinely wanting more parenting time or deciding a schedule that is best suited to the child. It also doesn’t handle working arrangements that restrict the number of overnights, such as when one parent works nights but that person is the parent who picks up from school and by doing so eliminates the need for after-school care.
These situations lead parents to agree a parenting schedule to follow in practice and then a separately calculated number of overnights for the sole purpose of determining child support. This is another area in which consulting with an attorney may be helpful.
What Happens to Expenses Not Covered By Basic Child Support?
The calculations described above cover basic expenses related to your child but any parent knows that child-related costs often go beyond the basics. Things like after-school activities, club sports teams, and additional school supplies can quickly add up and make a hole in any budget and that’s before the usual doctors’ bills, and prescription costs.
These are typically a significant area of discussion in negotiations and there are two elements. First, you and your STBX have to settle on a process for what expenses will be shared. This is so that neither of you can commit the other to an expense without the other’s prior approval. Then, you agree how to split the agreed expenses. Parents will often use the same proportion used in determining the relative share of basic expenses.
For these expenses, accurate and detailed record-keeping is essential. You will need to document that expenses related to extra-curricular activities have been agreed, keep receipts for these expenses, retain communications requesting reimbursement and then copies of checks or statements that evidence payments have been made. These records will be needed if you ever need to take legal action to enforce a payment or if you find yourself defending against you for non-payment of child support.
What Are The Options For Paying Child Support?
For basic child support, you will likely have the option to have payments handled through a government system or independently between parents.
Handling payments independently works well when parents are able to communicate civilly, when the payor is reliable in making payments and when both parties keep good records. If any of these are likely to be problematical, then working through your state or local government run agency may be to your advantage. Certainly, if you’ve reached the stage of having to enforce collection, you will most likely be required to work through an official system.
For extraordinary child support expenses covering extra-curricular activities and unreimbursed medical expenses that are outside what is included in your basic child support agreement, you will need to work directly with each other. Typically this involves making an agreement that you will each keep a record of eligible expenses incurred during the month, exchanging the information at the end of the month and then agreeing to settle by certain date, such as the 15th or 30th of the month following.
Enforcing these extraordinary child support expenses may fall outside the scope of your local government agency and to collect arrears would mean taking legal action. Understanding what this would involve, whether for example this is something you could do yourself, and what would be the triggers for legal action would be a good discussion to have with your attorney at the time you’re negotiating your initial child support arrangements.
It is critical to understand that a court order for child support is legally enforceable. Paying attention to the terms and conditions of those orders is essential. For example, if the court orders school expenses to be paid directly to the school, trying to make a payment to your child so they can pay the school violates the order and puts you at risk. If you’re supposed to be paying child support but lose your job so then agree to pick up your child after school so your ex doesn’t incur child care expenses, it doesn’t change your legal obligation. Even if your ex agrees that you can do this in lieu of part of your obligation, it doesn’t change the court order and you are at risk of future legal action.
This is the situation that Kimberly Seals Allers ran into – her ex was not able to meet his child support obligations and while Kimberly was comfortable accepting additional help such as extra parenting time, his child support arrears were accumulating. He eventually returned to his native United Kingdom and faced the threat of arrest if he were to attempt to re-enter the U.S. Kimberly eventually went to court to ask a judge to forgive $38,750 in arrears because doing this would allow her ex to return to the U.S. to spend time with their children.
How Can Child Support Be Modified?
Once whatever you and your STBX have agreed or that the court decides becomes a court order, it is legally enforceable. That means if you do not pay what’s been ordered, you will be in arrears and those arrears will continue to accrue until the court order is changed.
Now, there’s a difference between not being able to pay and not being willing to pay. The latter points to a need for counseling, mediation or enforcement action. The former points to the importance of understanding when and how child support can be modified and being proactive in seeking changes.
In Colorado for example, a motion to modify child support can be filed any time there is a change in circumstance that would result in a change in the child support payments of 10 percent or more. This is where understanding what factors contribute to the calculation of child support is important. In Colorado, the payments would be affected by changes in income of either parent, a change in the number of overnights for a child, changes in the cost of child care or health insurance.
Many divorce professionals recommend reviewing child support on an annual basis and to this end couples often agree in their original agreement to exchange financial information on an annual basis. If you became unemployed you would want to conduct the same review and consider filing for a modification to reduce your obligation while unemployed. Once you were working again, you’d file for another modification.
Some jurisdictions have a child support calculator online, spending some time with this, putting in theoretical numbers will give you a good understanding of how changes in the variables will affect the payments. You’d also want to research what paperwork was required for a filing and again the website for your jurisdiction would be a good place to start with this research. Many courts also offer free legal help clinics. The process may not be as onerous as you think, especially if you and your ex can agree on the modification.
Staying on top of modifications may seem like busy work – no one enjoys filling out paperwork and especially documents that have to be filed with a court but it’s about being proactive to avoid accruing arrears. Ignoring and procrastinating on this could put you in a Kimberly Seals Allers situation where either you or your ex will be asking a judge to forgive child support arrears.
If you’re considering filing for a modification of child support ask yourself what’s your true motivation. If you can truly say it’s based on needs, costs and benefits then you have a green light to proceed. If your inner voice is saying “Revenge,” then you get a red light and you’d be well advised to pause. This is indicator that your ex still has control over you. Maybe it’s time for some divorce recovery work?