Family Law Advisor®
Frequently Asked Questions

Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. The responses to frequently asked questions are intended to be general statements. The correct answer to any legal question is: "It depends." Often there are exceptions to most law, especially issues concerning family law. Also, judges may interpret the law differently. The law changes over time. Anything written here could have changed between the time it was written and when it is read. Without exception, seriously consider consulting with a lawyer before you make any decision affecting your legal rights.

1. How is child support calculated?

   Tennessee has "child support guidelines" that require a set percentage of the non-custodial parent's income be paid as child support. The parent who pays child support is called the "obligor," and the parent who receives child support is called the "obligee."

2. How do I calculate this amount?

   First, determine the obligor's gross income. Gross income includes all income from any source (before taxes and other deductions), whether earned or unearned, and includes wages, salaries, commissions, bonuses, overtime payments, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, workers' compensation benefits, gifts, prizes, lottery winnings, alimony or maintenance, and income from self-employment.

   Second, determine net income. Net income is calculated by subtracting the following from the obligor's gross income: (1) the amount of the obligor's FICA payments, (2) the amount of withholding tax deducted for a single wage earner claiming one withholding allowance, and (3) the amount of child support ordered pursuant to a previous order of child support for the obligor's other children, if any.

   Third, multiply the obligor's net income by the appropriate percentage as determined by the child support guidelines. This percentage is based on the number of children of the marriage, as shown below:

   No. of children:	1	2	3	4	5 or more
   % of net income:	21%	32%	41%	46%	50%

   Finally, if the obligor is not providing health insurance for the children, an amount equal to the amount necessary for the obligee to obtain such insurance shall be added to the child support.

3. What if this amount does not cover expenses?

   Courts cannot create economic resources where they don't exist. However, the "guidelines" are minimum requirements. Child support can be set above the guidelines' minimum requirements when warranted. Such situations include extraordinary educational expenses and medical expenses not covered by insurance. In addition, any other extraordinary expenses for the children may justify increasing the support calculated if the court determines it is fair and reasonable. A custodial parent might also consider asking for alimony in addition to the child support.

4. Can a court order an employer to deduct child support from the supporting parent's salary and pay it directly to the receiving parent?

   Yes. This is called a wage assignment. In Tennessee, the court should order it unless there is a good reason not to. This works extremely well. However, if the supporting parent is self-employed, so that much of his or her income is in cash tips or payments, or is on a straight commission without a draw, this process will not be helpful.

5. May a supporting parent be ordered to pay child support through the court?

   Definitely. Payment to the court simplifies the process for the custodial parent, who need not enter into confrontations with the supporting parent or use the children as support collection agents. The court maintains the record of payment, and when an arrearage occurs, the proof of the amount of that arrearage is much easier. Be advised that the court clerk will add a percentage of the child support to the amount owed to pay for expenses in handling the money.

6. My ex-spouse is delinquent in child support payments. How can I enforce the court order?

   You can bring a petition for contempt in court and ask for a wage assignment. If the supporting parent is deliberately delinquent, or has the money but just refuses to pay, the court might put the supporting parent in jail for punishment or encouragement.

7. But my "ex" moved out of state. Can I still enforce the judgment?

   Absolutely. Over the last few years, new laws have been passed that really help. Armed with your state's court orders, you can go to the other state's court (often handled through the local district attorney or your local juvenile court) to enforce the wage assignment. Call your attorney, the local district attorney, or your local juvenile court for advice.

8. I am worried that my former spouse will file for bankruptcy. Can my former spouse avoid paying child support?

   No. If your former spouse is not making child support payments after filing for bankruptcy, check with your lawyer on what you can do.

9. Do I have to report my child support payments as taxable income on my federal income tax return?

   No.

10. Does that mean my "ex" can't deduct the child support he pays?

    Correct.

11. Can this change if we both agree?

    No, but you can agree to allow the non-custodial parent to have the child dependency deduction as long as the custodial parent completes and signs IRS form 8332 to be filed with the non-custodial parent's tax return.

12. In Tennessee, when does the obligation to pay child support end?

    When the child reaches age 18 or graduates high school with his or her regularly scheduled class, whichever comes last. However, child support could end earlier if the child becomes emancipated (gets married or quits school and gets a job).

13. May child support continue after a child goes to college?

    Yes, if the parties agree or if the child suffers from a severe medical condition or is handicapped.

14. What if the custodial parent is very wealthy or remarries someone wealthy?

    In Tennessee, relative wealth of the parents does not matter. The guidelines still apply only to the non-custodial parent's income and does not consider the income of the custodial parent.

15. What happens when the non-custodial parent's income cannot be ascertained?

    When establishing an initial order and the obligor fails to produce evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support or the ability to support in prior years), and the court has no other reliable evidence of the obligor's income or income potential, gross income for the current and prior years should be determined by imputing an annual income of $25,761. This figure represents an average of the median annual income for Tennessee families as provided by the 1990 U.S. Census of Income and Poverty data for Tennessee Counties. Valuable assets and resources (such as an expensive home or automobile which seem inappropriate for the income claimed by the obligor) of the obligor should be considered for the purpose of imputing income and increasing the support award in any case if the court finds that equity requires it.

16. Must the court always follow the guidelines, or may special circumstances result in an amount lower than that in the guidelines?

    Rarely will a court order child support lower than the guidelines. The court must first find it is in the best interest of the child to do so. One example is when the Department of Human Services has taken custody of the child pursuant to a neglect, dependent, or abuse action and the obligor parent is making reasonable efforts to secure the return of the child to the family. Another example is when physical custody of the child is more equally divided between the parties than occurs in the typical situation, where the non-custodial parent has an average amount of overnight visitation. An average overnight visitation schedule is one where the child lives primarily with the custodial parent but stays overnight with the non-custodial parent at least as often as every other weekend from Friday to Sunday, two weeks in the summer, and two weeks during the holidays throughout the year. In situations where overnight time is divided more equally between the parents, the courts will have to make a case-by-case determination as to the appropriate amount of support.

17. When a supporting parent is unemployed, does the court have any power to require him or her to work and pay child support?

    Yes. When the person owing a duty of support is unemployed, the court may order him or her to seek employment and report periodically with a diary of efforts to find work and to participate in government job search, training, or work programs. Depending on the situation, however, the unemployed obligor may seek a temporary reduction in support while seeking employment.

18. What impact does a parent's remarriage or having other children have on child support?

    None, for the parent receiving child support. Possibly some, for the parent paying child support. Remember that net income is calculated by subtracting from the obligor's gross income his or her FICA payments, the amount of withholding tax deducted for a single wage earner claiming one withholding allowance, and the amount of child support ordered pursuant to a previous order of child support for other children. Please check with an attorney. Case law is developing slowly that may alter the calculation for more complicated situations. The key point to remember is that, if a paying parent has more children, this does not reduce the child support obligation. There may be a reduction only if the paying parent is ordered by a court to pay child support for another child. Some judges may handle this situation differently.

19. Can a parent get out of paying past-due child support?

    Theoretically, no. The Tennessee child support statute mandates that child support immediately becomes a judgment when it is due. The law does not allow a reduction in past child support that has not been paid. If the past-due support is significant, see an attorney sooner rather than later because there are collection and enforcement laws that are good tools but which can become unavailable over time in certain circumstances.

20. What must a petitioner prove to get an increase in child support?

    The petitioner must prove there has been a significant variance in the amount of child support due based on the obligor's income. For the purposes of defining a significant variance between the guideline amount and the current support order, a significant variance must be at least 15% if the current support is one hundred dollars ($100.00) or greater per month and at least fifteen dollars ($15.00) if the current support is less than $100.00 per month.

21. What events might trigger a reduction of child support?

    A decrease in income of the supporting parent is the most common basis for a petition to decrease child support. As above, the supporting parent must prove a significant variance downward. Such a variance would justify the downward modification of a child support order, in situations where such a modification is sought, unless the obligor is willfully and voluntarily unemployed or underemployed. Courts will look at this issue closely.

22. Will the supporting parent's remarriage or new children result in a decrease?

    No.

23. If the supporting parent voluntarily takes a cut in income, can he or she get a reduction in child support?

    It depends. The judge will have a lot of discretion in this situation. Technically, the law states that, if a supporting parent is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by the obligor's educational level and/or previous work experience. In this situation though, the individual circumstances matter. For example, if a doctor leaves a practice group to start his own practice, the temporary reduction in income will not likely justify a reduction in child support. If, however, a manager of a retail store takes a new job with a cut in pay but also with legitimately increased advancement opportunities, the court might allow a temporary decrease. On the other hand, leaving a job just to reduce hours or to intentionally make less money, motivated by a desire to pay less child support, will not be looked upon favorably by the judge.

-- Miles Mason, Esq., Crone & Mason, PLC