How do courts set child support?
When working with guideline formulas, how are the parents' incomes determined?
What is the New York guideline for child support based on the income of the parents?
How does a court apply a support formula based on the incomes of both parents?
What are reasons for ordering more support than the guideline amount?
What are reasons for setting support below the guideline amount?
What is the effect on child support if the parents have joint custody of the children?
Is child support paid while the child is with the noncustodial parent for summer vacation or long breaks?
Do divorced parents have to pay for their child's college expenses?
How is child support enforced if a parent does not pay?
To what extent is child support not paid?
Q: How do courts set child support? A : Under federal law, all states must have guidelines by which courts determine child support. The guidelines were established because variations in the amounts of support set in similar circumstances were considered to be too wide and because child support, in many cases, was considered to be too low. The guidelines are formulas that consider the income of the parties, the number of children, and perhaps some other factors. The formulas are based on studies of how much families ordinarily spend for child raising. The formulas try to approximate the proportion of parental income that would have been spent for support of the child if the family had not been divided by divorce. Courts plug numbers into the formula and come up with an amount of support that should be paid for the child or children. The parties can argue that because of special circumstances, a court should order more or less support than the guideline amount.
Q : When working with guideline formulas, how are the parents' incomes determined? A : States use the parents' net income or gross income. New York uses parents' combined gross income. Gross income is the parents' income from all sources, including wages, investments, and other sources. For self-employed persons, the determination of income may be complex. Courts will allow deductions of reasonable business expenses before determining income. But courts may disallow unusually high business expenses and depreciation that reduce income artificially without hurting the parent's cash flow. Thus, certain expenses that are deductible for tax purposes may not be deductible from income for the purpose of setting child support.
Q : What is the New York guideline for child support based on the income of the parents? A : Here is the "percentage of obligor's income" guideline adopted by New York:
Number of Children
1
2
3
4
5 or more |
Percent Supporting party's gross income
17%
25%
29%
31%
35% |
The percentage guideline only applies to the first $80,000 of the parents' combined income to decide the basic child support obligation. When the parents' combined income exceeds $80,000, courts will determine an adjustment over the basic child support. The court will probably consider whether the percentage guideline should apply to the amount exceeding $80,000, or the court should determine an amount based on other factors such as the child's current standard of living, and the tax consequences to the parties.
Q : How does a court apply a support formula based on the incomes of both parents? A : New York support guidelines are based on the incomes of both parents, referred to as "income shares models." The court first adds the gross income up to $80,000. Then the court consults a long table--or computer program--which assesses the total obligation of support as a percentage of the combined incomes and the number of children. The court multiplies the combined incomes by the percent figure and obtains a dollar amount that the child or children are considered to need for support. Then the responsibility to pay that support is divided between the parents in proportion to each parent's incomes.
Q : What are reasons for ordering more support than the guideline amount? A : This will vary from case to case. But some common reasons for giving support above the base guideline amount include: child-care expenses, high medical or dental expenses of the child that are not covered by insurance, and voluntary unemployment or underemployment of the parent who is supposed to pay support. Expenses for summer camps and private schools also might be a basis for setting higher support levels, particularly if private schools or summer camps were part of the family's lifestyle during the marriage.
Q : What are reasons for setting support below the guideline amount? A : Again, this can vary from case to case, but common reasons for setting support below the guideline amounts include support obligations from earlier marriages and large debts to pay off (particularly if the debts are related to family expenses). If the support guidelines are based on the income of only the noncustodial parent and if the custodial parent has an unusually high income, then the noncustodial parent can argue that the custodial parent's income is a reason for setting support below the guidelines.
Q : What is the effect on child support if the parents have joint custody of the children? A : That depends on the nature of the joint custody arrangement. If the parents have joint legal custody (by which they share in making major decisions regarding the child), that will have little effect on child support. If the parents have only joint legal custody, one parent still has primary custody of the child and handles payments of most of the child's day-to-day expenses. The custodial parent's expenses for the child have not been reduced by the joint custody arrangement. If the parents have joint physical custody and the child spends a substantial amount of time with each of parent, support might be set at less than the guideline amount since both parents are likely to handle day-to-day expenses for the child. (Parents, however, will need to coordinate payments on major expenses such as camp, school, clothing, and insurance).
Q : Is child support paid while the child is with the noncustodial parent for summer vacation or long breaks? A : In most cases, yes. Courts figure that many major expenses for the benefit of the child--such as rent, mortgage, utilities, clothes, and insurance--have to be paid whether the child is with the custodial parent or not. So, usually, a full support payment is due, even if the child is with the noncustodial parent. On the other hand, the parties themselves (or the court) are free to agree on payments in different amounts during vacation periods when the child is with the noncustodial parent. The lower amount for vacation periods with the noncustodial parent might reflect savings to the custodial parent for food expenses or childcare.
Q : Do divorced parents have to pay for their child's college expenses? A : Yes. New York requires parents to provide care, maintenance and education of any unemancipated child under the age of twenty-one years. In most cases, parents will have to pay for a child's college expenses unless the child goes to college when he/she is 21 years old or older. Regardless of the state's law on compulsory payment of college expenses, the mother and father can agree as part of their divorce settlement to pay for these costs. Courts usually will enforce those agreements.
Q : How is child support enforced if a parent does not pay? A : The state and federal governments have a variety of techniques for enforcing payments of child support. The most common is a wage deduction, by which the employer sends a portion of the parent's wages to a state agency which then sends the money to the parent who has custody of the child. A federal law requires that after 1994, all child support orders must provide for an automatic wage deduction unless the parties have agreed otherwise or unless a court waives the automatic order. The state also can intercept the federal and state tax refunds of persons who have not paid support. Liens can be placed on property, such as real estate and automobiles. A parent who has not paid support can be held in contempt of court, which may result in a fine or a jail term. In addition, a parent who has not paid support can lose his or her driver's license or professional license. State's attorneys or district attorneys may help with collection of child support, though their efficiency varies from district to district. Child support enforcement is a matter of increasing federal concern. Under the Child Support Recovery Act of 1992, it is a federal crime to willfully fail to pay child support to a child who resides in another state if the past-due amount has been unpaid for over one year or exceeds $5,000. Punishments under the federal law can include fine and imprisonment. A parent may not reduce child support payments without a court order: the unpaid amounts will accumulate as a debt, even if a court later decides that there was a good reason for the reduction.
Q : To what extent is child support not paid? A : The Census Bureau reports that only about half of the parents entitled to receive child support receive the full amount that is due. About one-quarter of parents to whom support is due receive partial payments, and the other one-quarter receive nothing at all. The Census Bureau estimates that each year, about $10 billion dollars in court-ordered child support is not paid. In addition to that, there are several million mothers who have not obtained orders of child support for their children. A high proportion of those women had children out of wedlock.