Introduction to Child Support
An unfortunate fact of economic life is that a family cannot live as cheaply divided as
it can together. Thus, after a divorce, the living standard of the entire family is often
lowered and the court often finds itself in the unenviable position of having to divide a
scarcity of resources. Then too, there is the problem of changing the child support order
to meet changing needs of children and enforcing court orders against fathers and mothers
who either refuse to make court ordered child support payments or who cannot do so due to
circumstances beyond their control. These problems, when added to the issue of custody,
visitation and the division of property in a divorce , keep the family law courts of the
country packed to capacity.
Both parents have a legal duty to support their child according to their ability to do
so. This section discusses the issue
of child support when viewed in the context of a divorce or paternity action. Just as
courts must often make the crucial decision as to child custody and visitation, so too
must it often determine how much child support the non-custodial parent will be ordered to
pay. This section will describe the considerations that a court will take into
account when deciding the issue of child support, whether in a divorce or a paternity
It will also describe the methods by which child
support orders are enforced by courts, and how to modify an
order for support. The Child Support Calculator can
be used to calculate your child support obligation.
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Establishing Child Support Payments
During a marriage or committed relationship, such issues are rarely a concern for the
court. But when parents divorce or cease to live together with their children as a family,
the courts are usually required to establish by decree the amount of child support a
non-custodial parent must pay. Like the issue of custody, this can be reached by agreement
or by fighting it out in front of a judge. Child support payments, like alimony, may be
incorporated into the divorce judgment or may be provided for in a marital separation
agreement. You can avoid making child support a contested issue, and the legal expense of
litigating this issue before a Master or a Judge by both parents agreeing to the
appropriate amount of child support and making this agreement part of a marital separation
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The Nature of the Child Support Order
There are several parts to most child support orders. First and foremost, the paying
parent will almost always be ordered to make a monthly money payment to the custodial
parent. The order will typically read, in part, as
Father (name) is ordered to pay directly to mother (name) as and for child support
of Tom and Mary, the sum of $300 per month per child for a total of $600 , payable
one-half on the first and one half on the fifteenth day of each month, said payments to
continue until each such child shall die, reach majority, become emancipated or until
further order of court.
Notice the following about this portion of the child support order:
It Requires a Direct Monetary Payment to the Custodial Parent
Many paying parents resent the child support order because it is made directly to the
custodial parent and not the children. Because of this, some refuse to make the payments
because they see it as a form of alimony. However, this is not true. The direct payments are to be used to pay for the vital
needs of the children, such as rent, food, and clothes.
The Court Retains Jurisdiction to Change the Order.
A child support order is not set in concrete but is subject to change should future
conditions warrant. Thus, either parent may petition the court to raise or lower support
should conditions warrant (see below).
Payments Automatically Terminate When the Child Reaches Majority, Dies or Becomes
The purpose of this language is to provide for an automatic end to the support
obligation when the child reaches majority or dies. However, the issue of emancipation is
often in dispute and may require a court determination.
Child Support Is an Enforceable Order of the Court
A child support order is as enforceable as any other court judgment or decree. Thus, a
parent who is not paid child support can use each and every legal tool available to
enforce the order, including wage garnishments, wage assignments, contempt of court
decrees and the seizure of the nonpayor's property by writ of execution.
The child support decree is not limited to an order of direct money payments to the
custodial parent. Other areas of providing for the children's needs are also usually
addressed. The following language is an example of a typical child support order:
As and for additional child support, father (name) is ordered to maintain his
children as beneficiaries on his health and life insurance policies available through his
employment. Father is further ordered to pay for one-half of all uninsured medical, dental
and ophthalmologic services provided for the children.
As and for additional child support, father shall pay directly to the ABC Daycare
Cooperative, the full cost of afternoon after-school day care. However, should the
children be enrolled in morning day care, such expenses shall be the sole responsibility
of the mother.
As and for additional child support, father shall pay the round-trip plane and other
reasonable costs of transporting the children for visitation with father, as provided in
the visitation provisions of this order. However, during visits of two weeks or more, the
father's child support payments to mother shall be reduced by $50 per month per child.
These clauses illustrate the flexible nature of child support orders and the wide
latitude a court has in creating a support arrangement it deems in the best interests of
the children. (The court will try to maintain the lifestyle the children enjoyed before
the divorce if the parents' finances permit.) Thus, a parent can be ordered to maintain
insurance for the benefit of children, pay medical bills, private school expenses, day
care costs, transportation bills, music lessons and to pay or partially pay for other
aspects of a child's day-to-day life, activities and upbringing. The amount of support can
also be reduced should the noncustodial parent have physical custody of the children for
at least 35% of the time.
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Generally, child support payments are for the ordinary expenses of food, shelter,
clothing, education and medication needs for the children only. In determining an award of
child support, a court will look at all relevant facts upon the following issues:
The Needs of the Children.
For example, a sickly or developmentally disabled child will often require a higher
level of support than a healthy child.
The Age of the Children.
Infants and younger children often cost less to support than older children
The Ability of the Noncustodial Parent to Pay.
The court is limited in awarding child support by the ability of a parent to pay based
on income from all sources, often including a new spouse's earnings.
The Earning Capacity of the Custodial Parent.
Both parents have the duty to support their children, not just the paying parent. Thus,
the earnings or earning capacity of the custodial parent which are available to provide
support for the children, and perhaps that of their new spouse, will also be considered
when determining child support levels.
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The Other Responsibilities of the Parents
The other lawful responsibilities of both parents will also be looked into in
determining child support. For example, if the non custodial parent is paying child support
from a previous marriage (a rather common occurrence), the court will take that obligation
into consideration. Necessities of life, such as rent and food will also be taken into
account by the court. However, the court will not reduce child support payments to make it
easier for the parent to pay discretionary obligations. For example, a parent cannot
provide for a charity or buy an expensive car at the expense of providing for his or her
To assist the court in determining the proper amount of support, both parties will be
required by the court to prepare a financial declaration that is signed under penalty of
perjury. (See financial forms). Each parent will be required to fully disclose their income
(from all sources frequently including money earned by a new spouse or live-in-lover), the
nature and extent of their property holdings such as bank accounts, investments and real
property and their financial obligations. The court will rely heavily on these documents
in making the order and thus it is in the best interests of the children that the
declarations be filled out completely and honestly.
Child support hearings are often adversarial. That means that when the parents cannot
agree on the support order, (sometimes after compelling mediation), the court, through a
Master's hearing, will hold a hearing to decide the issue. (This is sometimes done in a
chambers conference to save time.) At the hearing, each spouse (or their lawyer) will have
the opportunity to cross examine the other on issues relevant to the support issue and
each can subpoena documents and call witnesses to support his or her position as to the
amount of child support that should be paid. Child support orders can also be appealed,
although the likelihood of success is very slim.
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A court that does not have proper jurisdiction (power) does not have the legal
authority to order child support. In order for a court to have jurisdiction to compel a
parent to pay child support, it must have personal jurisdiction over the parent.
Personal jurisdiction means that the parent from whom support is sought must have
sufficient contacts with the state in which the suit is brought.
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A State that Entered a Valid Support Order Continues to Have the
Power to Modify Child Support.
Once a valid child support order is entered, that state continues to have the power to
award child support even though it no longer has contacts with the supporting parent or
Parents Can Agree On the Level of Support.
Parties frequently settle divorce or paternity cases between themselves without going
to trial. Parties may include in their settlement agreement an amount of child support to
be paid by the non-custodial parent to the custodial parent. However, even when the
parties agree to an amount of child support the trial court is required under the
guidelines to determine the guideline amount, compare it with the amount of support agreed
upon by the parties, and not make an award less than the guideline amount unless convinced
that award of less is in the best interest of the child. There can be no variance of the
guideline amount if the court does not give its reasoning on the record in accord with the
requirements of the law.
Hugh and Lucy divorced. In a marital settlement agreement, they agreed that Lucy
would have custody of the children. However, Hugh would only agree to pay $50 per month in
child support, despite the fact he earned $2000 a month. Rather than fight Hugh, who had
threatened a custody fight if she would not accept the deal, Lucy agreed to the low
support level. When Lucy and Hugh brought their "agreement" before the Master,
the Master refused it because the support level was too low.
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Courts Can Order Payment of College Expenses Even Though the
Child Has Reached Majority.
At one time, majority was reached at age 21. When it was reduced by law to age 18, a
new problem was presented: Could the court order a parent to pay for his or her children's
college expenses as child support, despite the fact that they would be over 18 when the
payments were made? In most states, that question has been answered in the affirmative -
if the parent has sufficient resources - although the courts are not required to make such
Child Support Is Not Tax Deductible
Unlike alimony, payments of child support cannot be deducted from the payer's income
taxes. However, you pay more than 50% of the actual costs of child support, you can claim
the child as a dependent to save money on taxes. Parents often agree on the issue of
the dependents deduction so that both don't make the claim which could trigger an IRS
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Modifying Child Support
The court that makes the original child support award is said to have continuing
jurisdiction to modify the order as conditions warrant. That being so, either parent
may request the court to change the order throughout the duration of the child's minority.
Modifications will not happen automatically. One of the parents must request the change by
a formal motion to the court.
Child support orders cannot be changed on caprice or because a court thinks that
"it is time." It must be based on evidence proving that sufficient grounds exist
to make the change. This usually requires a showing of changed circumstances from
the facts as they existed at the time that the last order was entered. (In the many years
a child support order remains effective, the parent's circumstances may change many times
and thus so may the child support order.) In New Jersey, changed circumstances,
means that a party's income has changed (either gone up or down) by at least 25%.
Many different scenarios can create changed circumstances. For example, if the paying
parent has had a large increase in income, the court can order the child support
increased. Or, if the child's needs grow, such as if the child becomes ill or disabled,
the amount of support can be ordered raised. Sometimes the mere passage of time creates
the changed circumstances. For example, as a child grows older, it becomes more expensive
to buy clothes, food and other necessities. These increased expenses can be enough to
justify a raise in the support order.
Support can also be reduced upon a proper showing. For example, if the custodial parent
inherits money, gets a large raise or otherwise has an increased ability to support the
children, support payments may be reduced. Or, if the paying parent loses his or her job,
the court can be asked to reduce support during the period of unemployment.
A mistake many parents make is to reach informal oral agreements modifying child
support. This often provides the seed for future discord. For example, the following
scenario is very common:
Peter paid his former wife Alice $400 a month to support their son. When Peter was
laid off, he called Alice and said, "I just got laid off. I can't afford to pay $400
right now." Alice responded, "Okay. Pay $100 for now."
Ten months later, Peter was rehired and raised his support payments back to $400.
During his layoff, Peter had made 10 payments of $100. Alice called and told Peter she
expected him to pay the $3000 he had not paid during the layoff. Peter replied that he did
not owe the money because they had agreed to the child support reduction during his
layoff. Alice disagreed. She claimed that she had not given up the right to $400 a month
but had merely permitted Peter to defer full payment until he was rehired.
When Peter refused to pay, Alice took him to court. The judge ruled that the
evidence did not support Peter's claim that he was excused from $300 per month of his
support during his layoff and he was ordered to pay the $3000 to Alice at the rate of $100
a month, in addition to the usual payments of monthly support.
The problem with oral agreements is that they are often vaguely worded and the memories
or understanding of the parties may often differ. Thus, any agreement by parents to modify
child support should be put in writing so that there are no misunderstandings later on. It
is also a good idea to have a judge sign a court order based on the agreement. (Your local
library will have form books illustrating the proper forms of a stipulation and court
order to modify child support.)
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Enforcing Child Support
A major headache for custodial parents, children and society is created when a parent
refuses to pay his or her court ordered child support. This is a serious problem of
national dimensions. A recent study found that less than half the parents awarded child
support receive payment in full. In 1989 alone, $4 billion dollars that was owed in
child support was not paid. This failure on the part of non custodial parents - usually but
not always fathers - is a major cause of poverty in children. This not only affects the
families but has an indirect impact on the society who must finance poverty programs to
assist those in need.
The custodial parent has many tools available to enforce child support orders, all
of which should be considered if payments are not being made:
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Use the Government's Parent Locator Service
Nonpaying parents often hide from the custodial parent in order to avoid their child
support obligation, often going so far as to move out of state to avoid their
responsibilities. Such abandonments have caused many parents to go on welfare.
In order to remedy this problem, the federal government has created the Parent
Locator Service, which allows the resources of the federal government including the
Social Security Administration and the Internal Revenue Service, to be used to locate a
nonpaying parent's employer. Once found, the custodial parent or the state can enforce the
child support order and collect unpaid support. The law also permits the IRS to pay child
support arrears from tax refunds the nonpaying parent may be owed by the government. (The
law also requires the states to establish a Parent Locator Services.) For more information
on the Parent Locator Service, contact the local office of the Department of
Health and Human Services.
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Obtain a Wage Assignment
Many states allow the court to order an employer to make direct payments to the
custodial parent from the wages of the supporting parent. This procedure is known as a
wage assignment. The wage assignment can be issued upon proper application by the court
and served on the paying parent's employer. Once implemented, the employer will deduct
child support like any other deduction from the paying parent's paycheck and send the
money directly to the custodial parent. This is a very valuable tool - if the nonpaying
parent holds a steady job.
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Request a Writ of Execution
The General Assembly has passed laws to assist
recipients of support to collect the funds due them from spouses ordered to pay
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Bring a Civil Contempt of Court Action.
If a person willfully disobeys a lawful child support order, he or she can be jailed
for contempt of court. The civil contempt action is brought by the custodial parent. The
court clerk will have the proper forms. After that, the nonpaying parent will have to be
served with process since he or she has the Constitutional right to appear at the hearing
and present a defense. If the nonpaying parent is served with process and does not appear,
the trial court will order a bench warrant issued for his or her arrest.
If the court finds beyond a reasonable doubt that the parent has willfully failed to
pay pursuant to a valid child support order, the court can order the nonpaying parent
jailed. (A parent who can show that they did not have the ability to pay will not be found
in contempt of court, even though he or she will continue to owe the money.)
Often, the mere threat of jail is sufficient to pry open the recalcitrant
parent's pocketbook. However, in severe cases, parents will be jailed and often the jail
sentence will be open-ended, terminating only when the proper payment has been made.
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Seek a Criminal Prosecution
All states also have criminal statutes on the books to punish parents who refuse to pay
their child support. If the custodial parent complains to the district attorney's office,
it may seek an indictment against the nonpaying parent in criminal court. If the defendant
is found guilty, he or she may be jailed. Or, the guilty parent may be put on probation
and allowed to remain free if he or she pays all back child support and makes all future
payments in a timely manner.
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