Child support is a complex area of the law that is more involved than simply inputting the incomes of the parties into a computer program and pressing enter. The definition of income can be a hotly contested issue. The divorce court may order a party to pay for additional expenses referred to as "add-ons" in addition to the base child support. Add-ons may include such things as child care, activity costs, schools costs, travel costs, health insurance premiums and medical costs not paid by insurance. Other issues that may need to be addressed include such things as the imputation of income, determining the representative period of past earnings to determine most probably future income and how to treat fluctuating income.
The divorce court may order "add-on" costs be paid in full by one party or divided between the parties in equal or unequal shares.
The divorce court may order a base level of child support and a supplemental payment of any additional income received over the base salary. This supplemental child payment is referred to as and "Ostler-Smith" payment.
The parties cannot contract with each other to deprive the divorce court of jurisdiction to order child support for either a minor child or a disabled adult child. Such a contract would be against public policy (IRMO Lambe & Meehan).
Conflicts may exist relative to the calculation of custodial time sharing which impacts the amount of the child support.
Child Support Amount
The amount of child support is determined by the 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.
Temporary Child Support/Post-Judgment Child Support
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 (not net) income of the parties, including the following types of income:
- Workers compensation;
- Unemployment benefits;
- Disability benefits;
- Social Security benefits;
- Employment benefits;
- Deferred income;
- Military allowances;
- Meal allowances;
- Recurring Gifts (IRMO Alter);
- Most annuity payments;
- Stock options/RSUs/Profits Interests.
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.
Sources for Child Support
A divorce court may look to the parents income and assets in determining the amount of child support.
When there is a dispute as to the income of a party, the divorce court may look to a party's loan application as presumptive evidence of income (IRMO Calcaterra & Badakhsh). The representations on the loan application can be received by the divorce 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 divorce 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 or 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).
Proceeds from the sale of a business that are reinvested are not income available for child support (IRMO Pearlstein).
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 divorce court may characterize them as income for payment of child support (IRMO Alter). If payments are recurring but have ceased, they will generally not be considered income (IRMO Williamson). The court has discretion to consider whether to consider gifts to be income. A court may rule that recurring gifts from a "good samaritan" are not income for purposes of calculating guideline child support (Anna M. v. Jeffrey E.).
In determining the amount of child support, the divorce court must consider future bonuses, overtime and other periodic and fluctuating payments. The divorce court will frequently order the payor to pay a percentage of the supplemental income to the custodial party as supplemental child support payments (IRMO Ostler and Smith).
Vested and 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 or her income, a divorce court may base the child support order on a party's ability to earn an income as opposed to his or 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 divorce court cannot base the order on excessive overtime, if overtime is not actually being worked.
If a party voluntarily terminates his or 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 divorce court cannot characterize the increased and unrealized equity in a payor's residence as income.
If a payor has a history of using his or her separate property assets (capital) to create and maintain a standard of living the divorce court may fashion a child support order requiring him or her to continue that practice (IRMO Deguigne).
The divorce court may impute income to the custodial parent so long as the imputation is not inconsistent with a child's best interests.
Departure from Guideline Child Support
The divorce court may depart or deviate from guideline child support upward or downward even though the amount of guideline child support is presumed to be the correct number. The divorce court has discretion in determining whether to depart from guideline child support but must make specific findings if it does so justifying the departure (IRMO Hall).
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 or 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 divorce 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 calculated by the guideline formula.
Child Support Payable to Secondary Physical Custodial Party
Child support may be ordered payable by the primary custodial party to the secondary custodial party.
Health Insurance and Medical Expenses Not Paid by Insurance
The divorce court must order one or both parties to maintain health insurance for the children if available through employment at no or nominal cost.
The divorce court may order a party to pay all or a portion of a child's medical expenses not paid by insurance.
Child support is paid to address a child's needs. The divorce court may take into consideration the special needs of a child when determining the amount of child support. The divorce 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) seeking the modification.
Child support is modifiable if there has been a material change in circumstances since the date of the last order. An increase or reduction in income or an increase or decrease in child custody timeshare may be a material change in circumstances. However, a substantial reduction in income from employment may not justify a reduction in child support if the payor has substantial income from investments.
The parties may not bind the family law court to a specific strandard of review to modify a child support order (IRMO Cohen).
Common examples of circumstances that may warrant a modification of child support may include: Increase in income of either party, decrease in income of either party or change in custodial time share.