How is the amount of child support calculated?

Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parent's incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. In Florida, a judge must justify any deviation from the guidelines that is more that plus or minus 5% of the guidelines support level. Some factors in determining whether the guidelines should be adjusted up or down are as follows:

1. Extraordinary medical, psychological, educational, or dental expenses.
2. Independent income of the child, not to include moneys received by a child from supplemental security income.
3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need.
4. Seasonal variations in one or both parents' incomes or expenses.
5. The age of the child, taking into account the greater needs of older children.
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
7. Total available assets of the obligee, obligor, and the child.
8. The impact of the Internal Revenue Service dependency exemption and waiver of that exemption. The court may order the primary residential parent to execute a waiver of the Internal Revenue Service dependency exemption if the noncustodial parent is current in support payments.
9. When application of the child support guidelines requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
10. The particular shared parental arrangement, such as where the child spends a significant amount of time, but less than 40 percent of the overnights, with the noncustodial parent, thereby reducing the financial expenditures incurred by the primary residential parent; or the refusal of the noncustodial parent to become involved in the activities of the child.
11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.

Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. In Florida, the guidelines are found in Chapter 61 of the Florida Statutes. It is important to remember, however, that the guidelines are just that-guidelines-and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so (see above). If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:

• The child's standard of living before the parents' separation or divorce;
• The paying parent's ability to pay;
• The custodial parent's needs and income; and
• The needs of the child or children, including educational costs, daycare expenses, and medical expenses, such as for health insurance or special health care needs.

Judges will often review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. That is why it is so important to fill out the Financial Affidavit as it forms the basis for many of the decisions that the judge makes in determining the outcome of the case. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.

Once a court issues a child support order, can the amount of support that is paid be changed?

The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order fro the change to be enforceable.

Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her if it never formally approved the change.

When there is no voluntary agreement, the party seeking the change must file a petition to Modify Support and have a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase or decrease in either parent's income through job change or a substantial change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. In Florida, the Child Support Guidelines themselves may form a basis for a change in child support. Thus, if the parents had originally agreed to an amount that was more or less that what the guidelines would allow, the guidelines themselves can form the basis for a change in child support irregardless of a change in financial circumstances. Also, an increase in the cost of living can warrant an upward modification of child support, but generally these periodic increases are provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child, an increase when a child enters college, or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay.

How is child support collected if the person responsible for paying it moves to another state?

Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court in that county can provide information on the proper registration procedure. That court will then move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified downward, and if he or she is successful, the child's home-state court is stuck with the reduced amount. A newer interstate support act called the Uniform Interstate Family Support Act, which has been adopted in some states, does not allow the court in the new home state to modify the original court's support order.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will then notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

In almost all cases, child support can be collected through an income deduction order whereby support is withheld from the Obligor's paycheck by his employer.

Disclaimer

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

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