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Child support is generally payable by the non-custodial parent to the custodial parent for support of the minor children of the marriage. This obligation derives from the legal right of children to receive support from their parents. In the case of child support, a "temporary" order may be sought by the custodial parent during the pendency of the divorce, and is often sought at the outset to provide for the children’s needs pending a final judgment of divorce. Temporary child support, and that ordered as part of the judgment of divorce, unlike spousal support, are both calculated using guidelines adopted by the state. Support orders may also provide for "add-on" expenses such as child care, uninsured medical expenses, educational needs, and visitation travel expenses.
The federal government has mandated in Title 42 Section 667 of the United States Code that each state adopt a uniform state guideline for child support awards as a condition to receiving federal funding for enforcement of child support obligations. This mandate came in response to findings that child support orders overall were inadequate, and that awards were inconsistent within any given state. Section 667 requires that each state establish its own guidelines be reviewed every 4 years, that the guidelines be available to all officers determining child support amounts, and that child support amount calculated pursuant to the state’s guidelines shall be presumptively correct amount.
There are three predominant types of guidelines. The flat percentage guideline is the simplest model. It sets child support as a percentage of obligor income - some states apply the percentage to gross, others to net income. Some states apply a lower percentage at lower income levels, and a correspondingly higher percentage at higher income levels. With some exceptions this method does not take into account the custodial parent’s income or "add-on" expenses the custodial parent might have such as child care or extraordinary medical expenses. With some exceptions this method does not adjust for joint or shared custody, or the obligor’s later born children.
The income shares model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. This model has been adopted in both net and gross income versions. The computation involves three basic steps: (a) the income of both parents is added together, (b) an amount is calculated based upon what the parties would have spent in joint support of the child according to economic data on household expenditures on children, and (c) the total obligation is prorated in proportion to each party’s income. The custodial parent retains his or her share, and the non-custodial parent pays his share to the custodial parent. Add on expenses such as child care and medical expenses may be split equally, or shared on a prorated basis in proportion to income.
Some states have adjustments for shared and split custody. The Delaware Melson formula is based on three principles: (a) parents are given a self-support reserve that is not allocated to child support, (b) a flat amount of primary needs for each child is allocated out of income above the self-support reserve to which is added actual child care and medical expenses - this amount is prorated between the parents, and (c) after both of the foregoing allocations, varying percentages of the obligor’s remaining income are allocated to each child. This is called the standard of living allowance. Primary support needs and standard-of-living allowance are added together for the obligor’s total monthly payment. There are adjustments for shared physical custody arrangements.
Because the guidelines indicate the presumptively correct child support, deviations must be explicitly justified by the court and may be granted in certain circumstance - if the parties have stipulated to the other than guideline amount, if there is a deferred sale of the family home as part of child support, if there is an extraordinarily high income payor willing to pay any reasonable amount, or if "special circumstances" exist.
For example, if a payor has an extremely high debt to service which was incurred to pay the reasonable living expenses already in place while he was supporting two other children. The fact that other members of the child’s household benefit incidentally from the support order does not qualify as "special circumstances" warranting departure from the guideline.
When considering income available for support generally a new mate’s income is not considered in setting child support. The court may consider either parent’s earning capacity, rather than actual earnings to calculate support under appropriate circumstances, particularly if there is an indication that earnings are suppressed to avoid the support obligation. The payor may be allowed certain hardship deductions from income available for support, such as the support of children from other relationships, catastrophic losses, or uncovered medical expenses. Forms indicating the income and expenses of each party may be required by law. The court may also be obligated to consider the health insurance coverage available, and order coverage if it is available at no cost, or reasonable cost to either parent.
Child support obligations are not considered debts dischargeable by bankruptcy. Child support amounts are generally modifiable usually based upon a change of circumstance as to either parent’s ability. Child support orders may be payable by wage garnishment/wage assignment.
Child support obligations can generally be enforced by contempt - a parent with ability to pay, and knowledge of the order, can be imprisoned for failure to comply. Child support obligations can be enforced by the District Attorney’s office who can obtain enforcement against out of state obligors. Delinquency in payment of child support can result in substantial penalties, garnishment of tax refunds, and non-issuance or non-renewal of business, professional, or driver licenses.
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