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Child Support: how to Establish it and how to Enforce it

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Last revision: June 25th, 2019
Last revision:
Category: Marriage, Divorce and Family

All parents are required to support their children, either by maintaining custody or paying support to the parent who does have custody. Child support is a monthly allowance that is paid from one parent to the other to help cover the child's expenses. Child support is meant to be used for a broad range of expenses involved in raising a child, including school fees, entertainment, medical expenses, and extracurricular activities. This guide discusses the ins and outs of establishing child support and then making sure that support is actually paid. To find a comprehensive guide that discusses other issues related to a divorce involving children, such as child custody and visitation, this website also has a How to Handle Kids in a Divorce guide that covers those topics.

Issues surrounding children can often be the most contentious and difficult to resolve during the process of divorce. Too often, children become the pawns in a divorce, with one parent using them to hurt the other parent. It is vital to the welfare of the children that their parents put aside hostile feelings toward one another and address the issues using a collaborative approach rather than a contentious one.

Child Support Eligibility

Though both parents may be involved with raising the child, only a custodial parent is allowed to be the recipient of child support. The custodial parent is the parent with whom the child lives, known as physical custody, and makes sure the child's daily needs are met. In joint custody cases where a child spends time living with both parents, one parent may still be obligated to pay child support, especially in situations where one parent has a much larger income than the other parent. Determining eligibility is an important first step. However, being a custodial parent alone is not enough to qualify someone to receive child support. Other legal and practical issues must be considered, including locating the other parent, establishing paternity, and getting a court to issue a support order if the parent who owes child support (the person who is supposed to pay it) does not agree to pay of their own volition.

Establishing Child Support

Unlike spousal support, which usually stops when the spouse receiving it remarries, the duty to support one's children usually isn't affected by either party's remarriage. The obligation to support a child ends only when the child reaches the age of majority -- 18 in most states -- or becomes emancipated (gets married or moves out on their own and becomes self-supporting). Biological or adoptive parents must support a child of theirs until:

  • Child reaches the age of majority, or longer if the child has special needs or is in college
  • Child is on active military duty
  • Parents' rights and responsibilities are terminated, through adoption or emancipation

Child support agreements and orders

Payment of child support and the amount that must be paid can generally be established in three different ways:

  • Informal negotiations between the parents, that are then sometimes put into an official court order
  • Out of court alternative dispute resolution proceedings, such as facilitated mediation
  • By court order from a judge

If parents work together to negotiate and resolve their issues related to child support, they can negotiate an agreement without the use of attorneys by creating a Child Support Agreement together. This manner of resolving the issue saves money and is often the most preferable since the parents have the most control about the substance of their agreement. If the parents wish to further protect themselves and ensure that they will both abide by the agreement, they can take their informal agreement to a judge and have the court issue a support order based on their mutual understandings and promises.

If the parents wish to work together to come to an understanding but have differences in opinion, alternative dispute resolution, known as ADR, may be a good option. ADR includes processes such as facilitated mediation or arbitration where a neutral party facilitates a discussion between the parties that ends in mutual agreements. ADR is known for being less adversarial, more conciliatory, and more flexible than going to court. ADR can often result in a settlement that is reached earlier than a similar agreement obtained by going through the court system. Further, parents are able to play an active role in determining what makes the most sense for their family and co-parenting arrangement rather than giving all decisionmaking control to a judge.

In the cases where parents are unable or unwilling to come to an agreement, the court may get involved and set the terms of child support by issuing a child support order. This method is the most formal but also gives the parents the least control over the outcome.

Determining child support amount

The support obligation a parent is required to pay is often based on the ratio of each parent's income to their combined incomes and the percentage of time the child spends with each parent. The parents' income is their gross income from all sources -- such as salary from work, investment income, or public benefits -- minus any mandatory deductions. Mandatory deductions include income taxes, social security payments, and health care costs. Deductions do not include debt obligations or, generally, personal expenses. This determination is made regardless of the gender of either parent. Each parent has a duty to support their children and that duty does not discriminate between genders. If the parents agree, this amount can be stipulated in the Divorce Agreement or in a separate Child Support Agreement. If there is any disagreement, this can be calculated by a judge and put into a court order.

Each state has guidelines for calculating child support, based on the parents' incomes and expenses and the amount of time each parent spends with the children. These guidelines vary considerably from state to state. Judges in some states have a large amount of discretion when setting the actual amount, as long as they follow the general state guidelines. If there is a good reason to deviate from the standard guidelines, most states will allows some variance. However, an increasing number of states have very strict guidelines that leave the judge with very little leeway. State guidelines can be found with the state child support enforcement agency, usually part of the state department of human services. Most states have this information, along with child support calculators, on their websites.

Changing child support amount

Parents can agree to modify the terms of their child support agreement, but even an agreed upon modification for child support must be approved by a judge to be legally enforceable. If the parties are not able to come to an agreement, they can ask that a court hold a hearing during which each parent can argue their own side of the proposed modification. Usually, the court will not modify an existing order unless the parent proposing the modification can show that circumstances have changed substantially.

Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that might be considered substantial enough to justify a temporary change in a child support order include:

  • Child's medical emergency
  • Payer's temporary inability to pay, for example, due to illness or job loss
  • Temporary economic or medical hardship on the part of the parent receiving child support

A permanent modification could be awarded under the following circumstances:

  • Either parent receives additional income from remarriage
  • Changes in the state's child support laws
  • Job change of either parent that causes an increase or decrease in their income
  • Cost of living increase
  • Disability of either parent
  • Change in the needs of the child due to, for example, ongoing health issues or changing schools

In some states, the child support order is reviewed automatically every few years to ensure that the support amount is consistent with the parents' current income, the child's current needs, and any changes in the child support guidelines.

Enforcing Child Support

Unfortunately, some parents who are obligated to pay child support do not pay regularly and spend a lot of effort and energy avoiding their responsibility. This can lead to disruption in the home life and a child's needs not being met. For this reason, Congress has established withholding and other penalties to enforce the payment of child support.

Procedure for enforcing support

The process and procedures around how to enforce child support differ in the particulars from state to state. However, most states have very similar general procedures. Often, the parent who is owed (is supposed to receive) child support lets the parent who owes (is supposed to pay) child support know that they are behind in paying their support obligations by sending them a formal Child Support Demand Letter. This is often enough to remind the owing parent and spur them into action. If this doesn't work, the parent can notify the state through their state or local child support agency. The state then becomes involved by sending the delinquent parent some sort of notice explaining the child support process and including a time frame for payment with instructions on how to comply and correct the arrearage, or money owed. Depending on the amount owed, the state may take other actions, such as wage garnishment, passport denial, or driver's license suspension. In extreme cases when these penalties are not effective, a nonpaying parent may face probation or jail time as a result.

Available penalties for nonpayment of child support

If the owing parent has a regular job, income withholding for child support is treated like any other payroll deduction, such as income tax, social security, or any other required payment. The owed amount is automatically deducted from the person's paycheck and they received a paycheck less the owed amount.

If payments are skipped or stop entirely, especially if the parent who owes support is self-employed, moves or changes jobs frequently, or works for cash or commissions, the state child support office will try to enforce the support order through other means. States have laws which allow them to use enforcement techniques such as state and federal income tax offset, liens on real or personal property, freezing of bank accounts, passport denial, or seizure and sale of property with the proceeds from the sale applied to the support debt. The state child support office can use these methods of enforcement without directly involving the courts.

All states have agreements with financial institutions, such as banks and credit unions, doing business in their state to help them identify accounts that belong to parents who are delinquent in paying their child support obligations. Once identified, these bank accounts may be subject to liens and penalties issued by state or local child support agencies. States are responsible for issuing these levies to the financial institutions to collect overdue child support.

Under the Passport Denial Program, states have agreed that in cases where a parent owes more than $2,500 in unpaid child support, this information will be sent to the Department of State so that a U.S. passport will not be issued or renewed to someone who is not maintaining their financial obligations to support their child. Passports can be seized if the passport holder requests a change, such as a new address. In some cases, the child support agency can help obtain a federal warrant. The Department of State then starts procedures to revoke the passport if the passport holder continues to be delinquent in their child support payments.

If these actions available through the child support program are not successful, state child support agencies can take cases to court for other enforcement actions, such as show cause hearings, contempt of court proceedings, and criminal prosecutions.

Parents who are unable to pay

Back child support is taken very seriously by the state and, as a result, is one of the few kinds of debt that cannot be discharged, or forgiven, in bankruptcy proceedings. However, even though a parent who owes back child support could face jail time, among a host of other penalties, no one will be punished purely because they do not have the means to pay support. Parents who owe support and are unable to make full payments can ask the court to modify the support order, as described above, to better reflect their current financial situation. The state will also often allow the parent to agree to a payment plan where they make partial payments over a period of time to help them catch up on the arrears owed.

Final Takeaways

Divorce can be especially stressful when children are involved, particularly around matters involving money such as child support. However, by collaboratively addressing the following key issues, parents can do their best to separate without causing too much disruption to their children's lives:

  • Eligibility
    • the custodial parent with whom the child lives is the party who receives child support to cover the child's living expenses
    • if both parents have custody, one parent may still be required to pay support, especially if there is a large disparity between the parents' income
  • Establishing support
    • support can be established through informal negotiations, alternative dispute resolution methods, or by formal court order
    • support must be paid until the child reaches the age of 18 or is otherwise living independently in most situations
    • amount of support is based on each parent's income and how much time each parent spends caring for the children
    • child support orders can be modified either temporarily or permanently depending on the circumstances
  • Enforcing support
    • if a party owes support, they may be notified by the other party or by the state or local child support agency
    • nonpayment of child support can lead to garnishment of wages, withholding of tax refunds, freezing of bank accounts, revocation of a passport, or jail time
    • if a parent is unable to pay, they can ask for a modification of the support order and/or agree to a payment plan to help them catch up on payments

About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.

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