Child support is an important part of every divorce case where there are children involved. It is mandatory to pay child support in most states. There are also important tax consequences associated with either paying or receiving child support, which is to say, there are none. The receiving spouse does not have to pay taxes and the paying spouse cannot have child support payments be a tax deduction. While there are no tax consequences to either spouse for what is paid and received, there is a tax savings advantage for the spouse who has the child or children the majority of time in that the spouse who has the children can file for what is called “head of household.”
This spouse can take a credit of $2,000 for each child who is under the age of 17 or 24 if the child is still a student.
For one child, the guideline for payment is 20% of the parent’s net resources and 25% for two children, with 5% increments from there. The percentage is capped at 40% for five or more children. The child support guidelines apply to the first $8,550 of net resources. This means if the non-primary parent earns $8,550 or more in net resources and is paying support for one child, the amount of support, at most, would be $1,710 per month, which is 20% of $8,550.
When factoring child support, everything from income, rental income, and dividend payments are considered for what is paid.
There are forms that you have to complete before your divorce can be finalized by a judge. In addition to completing the forms, you have to attach financial documents that will be considered in calculating your child support payment. Some of the documents that will be considered are:
- Pay statements
- Bank statements
- Brokerage account information, including 401K
- Retirement plan documents
- Insurance information, including life and long-term care
- All kinds of loans, from car to student
- Home mortgages, including HELOC (home equity line of credit)
- Credit card statements and debit card statements
- Pension account
When you determine the amount you have to pay in child support, there are considerations you need to be aware of beyond just the amount paid. These factors include after school activities such as summer camps, private school and private tutoring, and daycare. In addition, you will need to address whether child support will end when the child reaches 18, or if the paying spouse will have to pay for any post-secondary education such as college.
Another thing to be aware of is the timing of your filing and if your spouse is not paying child support. Until the trial date, your spouse has no real impetus to pay support, though he or she will be responsible for back support, but the receiving spouse does have a remedy to get support. For example, if you file your petition on January 2 of a given year, it’s possible that you will not have a trial until the following January, during which time no child support could be paid or received. To expedite the payment of support, the receiving parent’s only real option is to hold what is called a temporary orders hearing.
At these hearings, you normally have to give your spouse two week’s notice, file the appropriate legal documents with the court and serve your spouse with these documents and notice of when and where the court date will be held, and your spouse will have time to respond to your request for child support.
This hearing is held in front of a judge, though it may not be the same judge who will ultimately decide the issues of your case trial if the case proceeds to trial, and this judge will only consider the issue of child support based on the written materials you and your spouse submit. No other issues will be addressed or heard by the judge. The judge will then make a ruling and this will be the temporary order that will stay in place until you either go to trial or you and your spouse come to an out of court agreement.
It’s important to understand that while the judge at your trial will likely agree with the judge who heard your temporary hearing, there is no guarantee of this, so it’s possible you might get one child support amount from one judge in, for example, March at your temporary orders hearing, and then get an entirely different result at trial the following January. Of course, a contributing factor for this would be if you or your spouse’s financial circumstances dramatically change from the time you file your documents in court to the time you have your trial.
These are the factors that the court will consider when making a child support determination:
- Child support from a previous marriage or spousal support from a previous marriage
- Which parent is currently paying for health insurance
- Which parent is paying for daycare
- The ages of the children
- How much money each parent earns
- The health and wellbeing of parent
Like every state, uses a child support calculator to determine child support, and this can be found by going online. It’s important to understand that these are only guidelines and that there can be deviation from this.
Enforcement of Child Support
If one spouse does not pay child support, there are important consequences that the spouse could feel. It is possible that, after a certain period, the state will go after the non-paying parent, but this could take awhile since this government agency is overburdened. Therefore, to get the non-paying spouse to pay, you will have to have a temporary orders hearing, which was described above.
Typically, if you have a lawyer, pay your lawyer, and have a hearing, then the non-paying parent will have to pay your attorney’s fees and the non-paying parent could also face a fine by the court. Other consequences of non-payment are the non-paying parent’s rights could be terminated, meaning the parent might not be able to see his or her child, the parent’s wages could be garnished, and their credit could be impacted.
Consult a lawyer about how to go about this because there are very definite procedural steps you have to take. You can’t just appear at court one day and ask a judge to enforce your child support. The steps to accomplish this are as follows. First, you have to file the appropriate documents in court and serve them on your ex-spouse or the parent of your child. This document is called a motion to enforce child support. You must set a court date, typically a couple of weeks away to give your ex time to respond. Then you will appear at the court date and time you picked, where you will have, in most cases, a brief oral argument to explain to the judge why you have requested the motion. Then the judge will issue an order, which is a legally binding document. The judge can do a number of things, including ordering your ex to pay the back support plus interest.
After a certain period of time, it is possible that the judge could put your ex in jail or his or her wages could be garnished.
