Child support is a complex area of the law that is more involved than a divorce lawyer simply imputing the incomes of the parties into a computer and pressing enter. The definition of income can be a contested issue. The family law court may order a party to pay for "add-ons" in addition to base child support, which may include such things as child care, activity costs, schools costs, travel costs, health insurance premiums and medical costs not paid by insurance. There can be many other issues including imputation of income, determining the representative period of past earnings and how to treat flucuating income.
The court may order that these "add-on" costs be paid in full by the payor party or divided between the parties in equal or unequal shares.
The family law court may order a base level of child support and a supplemental payment tied to any additional income received over the base salary.
Conflicts can exist relative to the calculation of custodial time sharing which impacts the amount of the child support.
The amount of child support is determined by divorce courts following state mandated guidelines calculated using a formula that takes into consideration a large number of factors including each party’s income and the percentage of time that a child spends in the custody of each parent. Divorce courts use one of the computer programs (Dissomaster, XSpouse, etc.) certified by the state to arrive at what is referred to as “guideline” child support.
Hearing and Trial
Temporary child support is ordered at the Request For Order (RFO) stage of the case. Post-judgment, child support is ordered at the trial.
Child support is based upon the gross income of the parties. It includes the following types of income:
- Workers compensation;
- Unemployment benefits;
- Disability benefits;
- Social Security benefits;
- Employment benefits;
- Defense salary;
- Military allowances;
- Meal allowances;
- Recurring Gifts (IRMO Alter);
- Annuity payments;
- Stock options/RSUs.
The following items are not income available for child support:
- One time inheritances;
- Unallocated lump-sum Personal Injury recoveries;
- Student loans;
- Life Insurance proceeds;
- Reinvested proceeds of the sale of stock in a business (IRMO Pearlstein).
Sources for Child Support
A divorce court may look to the parents income and assets in determining the amount of child support.
A wealthy party may avoid extensive discovery if a stipulation is reached providing that the party has the ability to pay any reasonable child support (IRMO Estevez and IRMO Aylesworth).
When there is a dispute as to the income of a party, the divorce court may look to a party's loan application as evidence of income (IRMO Calcaterra & Badakhsh). The representations on the loan application can be received by the court as admissions of the income earned.
Although a divorce court has discretion in deciding which time period of prior earnings to use in fashioning a child support order, the court must use a representative sample period that reflects a realistic level of income that likely reflects future earnings (IRMO Riddle).
A party may not reduce his/her income by voluntarily making payments to reduce debt that is not currently due to a third person or entity. For example, a party prepaying a mortgage cannot claim a reduction in income (IRMO Kirk).
Payments made by family members to a party may or may not be characterized as income. If the payments are loans or advances on an inheritance they are generally not income. If they are recurring gifts, a family law court may characterize them as income for purpose of child support (IRMO Alter). If payments were recurring but have ceased, they will generally not be considered income (IRMO Williamson).
In determining the amount of child support, the divorce court must consider future bonuses, overtime and other periodic and fluctuating payments. The court will frequently order the payor to pay a percentage of those supplemental payments to the custodial party as supplemental child support payments (IRMO Ostler and Smith).
Unexercised stock options may also be considered as income for child support purposes (IRMO Kerr).
Ability to Pay
If a party is deliberately suppressing his/her income, a divorce court may base the child support order on a party's ability to earn an income as opposed to his/her actual income. However, the divorce lawyer alleging the suppression of income must prove the earning capacity of the other party. The payor's ability to earn is measured by the reasonable work regimen of a person in the same industry. The court cannot base the order on excessive overtime, if overtime is not being worked.
If a party voluntarily terminates his/her employment, a divorce court may impute income to that person at the previous level of earnings (IRMO McHugh).
The divorce court may impute income on the assets of a payor (IRMO Dacamus, IRMO Destein and IRMO Sorge). The court cannot characterize the increased, unrealized equity in a payor's residence as income.
If a payor has a history of using his/her separate property assets (capital) to create and maintain a standard of living the divorce court may fashion a child support order requiring him/her to continue that practice (IRMO Deguigne).
The family law court may impute income to the custodial parent so long as the imputation is not inconsistent with the children's best interests.
Departure from Guideline Child Support
The family law court may depart from guideline upward or downward even though the amount of guideline child support is presumed to be the correct number. The family law court has discretion in determining whether to depart from guideline but must make specific findings if it does so.
The following are circumstances that may justify departure from guideline child support:
- Special needs of a child (IRMO Cryer);
- Exceptionally high earner;
- Deferred home award to payee party;
- Party is not contributing to the needs of the children at a level commensurate with his/her time share;
- Unjustness of the guideline formula in the particular circumstance;
- Payment of significant amount of community consumer debt incurred for basic living needs (IRMO Antoni);
- Mortgage free housing (IRMO Schlafly).
The family court may not order that a portion of the guideline child support be paid into a trust for a child's future expenses or college (IRMO Chandler).
Time Share Calculation
The custodial time awarded to each party impacts the amount of child support per the guideline formula.
The court may attribute timeshare credit to a party while a child is in school (IRMO Whealon and IRMO Katzbery).
Child Support Payable to Secondary Physical Custodial Party
Child support may be ordered payable by the primary custodial party or to the secondary custodial party.
Health Insurance and Medical Expenses Not Paid by Insurance
The family law court must order one or both parties to maintain health insurance for the children if available through employment at no or nominal cost.
The court may order a party to pay all or a portion of the medical expenses not paid by insurance.
Child support is paid to address a child's needs. A family law court may take into consideration the special needs of a child when determining the amount of child support. The court may also consider the history of private school attendance. A child support order that merely pays for a child's necessities is not sufficient if the parents can afford to pay for more.
Duration of Child Support
Child support is payable until a child completes high school but not after a child attains the age of 19.
Child support may be payable to adult children who are unable to support themselves.
Modification of Child Support
Child support is always modifiable. However, it may be modified retroactively only to the date of the filing of a Request For Order (RFO).
Child support is modifiable if there has been a change in circumstances since the date of the last order.
Common examples of circumstances that may warrant a modification of child support could include: Increase in income of either party, decrease in income of either party or change in custodial time share.