Child Support

Child support laws do not distinguish between children of married people and children of unmarried people.  Unmarried people may find themselves in family law court addressing child support issues.

Child support is far more involved than simply inputting salaries into a computer program.  The definition of income can be very complex.  A party may be ordered to pay for additional expenses referred to as "add-ons."  Add-ons may include such things as activity costs, child care, medical costs not paid by insurance, health insurance premiums, schools costs, and travel costs.  Other issues addressed in the family law court may include the imputation of income, determining the representative period of past earnings and the treatment of fluctuating income.

A family law court may order "add-on" costs be divided between the parties disproportionally.

Base level of child support may be supplemented with child support paid on additional income received over the base salary.  This supplemental child support is referred to as and "Ostler-Smith" payment.

The specific calculation of custodial time sharing impacts the amount of the child support order.

Child Support Amount

Child support is determined by a computer program that uses a formula that takes into consideration a large number of factors including each party’s income and custodial timeshare.  The child support number generated is referred to as "guideline child support."

Temporary Child Support/Post-Judgment Child Support

If an agreement is not reached, temporary child support is ordered at the Request For Order (RFO) stage of the case.  Post-judgment child support is ordered at the trial.

Income

The amount of child support is based on the gross (not net) income of the parties, including the following types of income:

  • Bonuses;
  • Deferred income;
  • Disability benefits;
  • Employment benefits;
  • Meal allowances;
  • Military allowances;
  • Most annuity payments;
  • Perquisites;
  • Recurring Gifts;
  • Rents;
  • Royalties;
  • Salary;
  • Social Security benefits;
  • Stock options/RSUs/Profits Interests;
  • Workers compensation;
  • Unemployment benefits.

The following items are not income available for child support:

  • Student loans;
  • One-time inheritances;
  • Life Insurance proceeds;
  • Unallocated lump-sum personal injury recoveries;
  • Reinvested proceeds of the sale of stock in a business.

Sources for Child Support

A family law court may look to the parties assets in determining the child support level.

A wealthy party may avoid expensive discovery if an agreement is made providing that the party has the ability to pay any reasonable child support order.

When there is a dispute as to the income of a party, a party's loan application may be evidence of income. The entries on a loan application may be received in a family law trial as admissions.

A family law court has the discretion to decide what time period of prior earnings are representative of a realistic level of income that likely reflects future earnings.

A party may not reduce his or her income by voluntarily making payments that reduce existing debt that is not due.  For example, a party prepaying a mortgage cannot claim a reduction in income based on having depleted his or her assets that were generating income.

Proceeds from the sale of a business that are reinvested (not spent) are not income available for child support.  Whereas, if a business is sold and the proceeds are used to pay debt and living expenses, those proceeds would be characterized as income available for support.

Payments made by family members to a party may be characterized as income.  If the payments are loans or advances on an inheritance they are generally not characterized as income by the family law court.  If they are recurring gifts, a family law court may characterize them as income for payment of child support.  If payments are recurring but have ceased, they will generally not be considered income available for child support.

Family law courts must consider future bonuses, overtime and other periodic and fluctuating income.  The family law court will frequently order the payor to pay a percentage of any fluctuating income as supplemental child support.

Vested and unexercised stock options or restricted stock may also be considered as income for child support purposes if they can be converted to cash.

Ability to Pay

If a party is deliberately suppressing his or her income, the family law court may base child support on a party's ability to earn income as opposed to his or her actual income.  However, the family law attorney 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 family law court cannot base the order on excessive overtime, if overtime is not actually being worked even if the party had previously worked excessive overtime.

If a party voluntarily terminates his or her employment, a family law court may impute income to that party at a level equal to the prior earnings.

A family law court may impute income on certain assets of parties but cannot characterize the increased and unrealized equity in a party's residence as income.

A family law court may impute income to the parent with primary physical child custody so long as the level of imputation is not inconsistent with a child's best interests.

Departure from Guideline Child Support

A family law court may make a child support order that is above or below guideline.  A family law court has discretion in determining whether to depart from guideline child support but must make specific findings if it elects to do so.

The following may justify an order in an amount other than guideline:

  • Party is not contributing to the needs of the children at a level commensurate with his or her time share;
  • Deferred home award to payee party;
  • Exceptionally high earner;
  • Unjustness of the guideline formula in the particular circumstance;
  • Special needs of a child;
  • Payment of significant amount of community consumer debt incurred for basic living needs;
  • Mortgage free housing.

Educational Trust

A family law court may not require that a portion of the child support be paid into a trust for a child's future benefit.

Time Share Calculation

The custodial time awarded to each party directly impacts the amount of child support.

A family law court has the discretion to use approximate percentages relative to the time share finding or it may use the exact number of child custody hours that each parent has.

Timeshare credit should generally be given to a party while a child is in school, if that party is responsible for the child during those hours.

Child Support Payable to Secondary Physical Custodial Party

Child support may be ordered payable by the primary child custodial party to the secondary custodial party.  A 50/50 child custody order may result in the payment of child support if the parties incomes are not equal.

Health Insurance and Medical Expenses Not Paid by Insurance

A family law court must order one or both parties to maintain health insurance for the children if it is available through employment at nominal cost.

A party may be ordered to pay all or a portion of a child's medical expenses not paid by health insurance.

Child's Needs

Child support is paid to address a child's reasonable needs.  A family law court may take into consideration the special needs of a child when determining the level of child support.  The special needs of a child, may cause child support to exceed the guideline level of child support.  The family law court may also consider the history of attendance at private school.  A child support order that merely pays for a child's necessities is not sufficient if the parents can afford to pay for more.  Child support may greatly exceed what may commonly be viewed as reasonable needs.

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 an adult child who is unable to support himself/herself.

Tax

Child support is not taxable to the recipient and is not tax deductible to the payor.