| For anyone facing divorce and looking ahead at how life will change, its financial impact is a logical starting point. And for parents of minor children, child support will likely be a big part of the story.
New Hampshire courts may order child support payments upon petition of either party to provide for the predictable costs of raising a child when the parents do not live together (RSA §458:35). When parents separate, child support payments are intended to minimize the economic consequences to their children (RSA §458-C:1). Typical expenses covered by child support payments include housing, food, clothing, utilities, and child care. Child support usually ends when a child graduates from high school or reaches age 18, whichever is later. It can end sooner if the child becomes emancipated, or continue longer in case of special needs. The parent with primary physical custody will be awarded payments from the other parent. The amount will be based on the incomes of the parents and the number of minor children according to a formula in the New Hampshire Child Support Guidelines (RSA §458-C). The formula is somewhat complex and accounts for many variables, but in general the parent making the payments can expect to pay from 25 to 45 percent of his or her net income, depending on the number of children. Net income for this computation is gross income less allowable deductions which include child care expenses, previously ordered child support payments for other children, the cost of medical insurance for the children, state income taxes paid (if the parent works in Massachusetts, for instance), and an allowance for federal taxes. A deviation may be allowed for high visitation costs, typically if the parent lives far from the child. In New Hampshire a parent making child support payments is not entitled to any accounting of how the money is spent. In some states such accounting may be provided, but in New Hampshire, any demand for such an accounting could be viewed suspiciously by the Court as evidence of an attempt to exercise undue control. Until recently, it was not uncommon for parents to share certain extra expenses like day care, scouts, music lessons, school photos, and the like. But last year the New Hampshire Supreme Court decided such expenses are covered by basic child support payments under the Guidelines, except for uninsured medical expenses, which are usually divided. In Re Coderre, 148 N.H. 401, 404 (2002). College expenses are generally handled separately and could involve a continuation of child support beyond age 18 in certain cases; see "Paying for College After Divorce," New Hampshire Family Law Letter, July-August 2003. Child support is not deductible by the payor for federal income tax purposes, nor does it count as income to the payee. This is in contrast to alimony, where amounts are deductible by the payor and count as taxable income to the payee. When a court calculates child support payments, it must base the calulation on the most current income data available, including regular overtime if any, and may not consider what either parent may have earned in the past or may earn in the future unless it is shown that a parent is voluntarily unemployed or underemployed. If one parent's income changes annually, the court cannot average that income to determine child support. Rattee v. Rattee, 146 N.H. 44, 46 (2001). But it may order the parties to exchange W-2 and 1099 information yearly so that the payee could seek a modification if the payor has a large increase in income. New Hampshire law allows either party to apply for modification of child support payments every three years or upon a substantial change in circumstances such as loss of employment or significantly higher costs incurred in visitation. But if a parent becomes unemployed voluntarily the court will enforce the original support order. The Court generally places child support obligations ahead of any other obligation of the payor parent, even food or housing. If a parent is unable to pay but has remarried, the new spouse may have to meet the obligation. On the other hand, the law does not allow any linkage between child support payments and custodial rights. Even a parent who is waiting for overdue child support payments has no right to interfere with the other parent's access to the children, and any parent who is kept from his children on this account should know the law is on his side, and seek qualified representation to enforces his-and his children's-rights. Child support payments can be a critical source of support for children after parents divorce, and at the same time a difficult and ongoing financial burden for the parent required to make them. Questions about child support can arise before, during, or even years after a divorce. They are best answered by an attorney experienced in family law. - - Family Law Office of Amy G. Wolfson |