Chapter 8 Child Support

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 8 Child Support

Who Pays Support?

Temporary Support While the Divorce Is Pending

Working It Out Yourselves

Starting With the Guidelines

Factoring in Changing Circumstances

How Courts Decide Support Amounts

Basic Support Guidelines

Setting Support Higher or Lower Than the Guidelines

Estimating Child Support in Your Family

How Support Is Paid Each Month

Direct Payment

Income Withholding Orders

Using Your State Child Support Enforcement Agency

If You're the Recipient: Enforcing Child Support Orders

While Your Divorce Is Pending

Once You Have a Court Order

If You're the Paying Spouse

How Long Support Lasts

College Expenses

If Circumstances Change

Taxes and Your Children

Tax Basics

Exemptions for Dependents

Head of Household Status

Tax Credits

Health Insurance

All parents must support their children financially, whether or not the parents are married. Both you and your spouse are responsible for giving your kids all the necessities of life until they become legal adults. This chapter explains what that means and helps you figure out whether one of you will pay child support to the other and, if so, how much. You'll also learn how long support lasts, what the tax implications are, and more. This chapter covers only child support. Spousal support (alimony) is covered in Chapter 11.

Who Pays Support?

Which parent makes support payments to the other depends a lot on where the kids spend their time. If one parent is the custodial parent, then the other parent almost always is required to pay child support. The reasoning is that both parents are responsible for supporting the kids, and if the kids live with one parent most of the time, chances are that custodial parent will need some help paying for the housing, food, clothing, and everything else the kids need.

However, it's not completely unheard of for a parent with primary custody to pay child support to the other parent. If the custodial parent's income is significantly higher than the other's parent's, the noncustodial parent may receive support based on the amount of time spent with the children.

If you and your spouse share custody 50-50 and there's a big income disparity between you, the higher-earning spouse usually pays child support to the lower-earning spouse even though you're each caring for the children half the time.

CAUTION

If you're the parent receiving support, make sure you use it for the kids. Given that most custodial parents are women and that statistically, women often suffer major financial downturns after a divorce, it's unlikely that you're using your support in ways that don't benefit your kids. But just in case you were considering it, remember that child support is for your kids' living expenses, not for anything that doesn't benefit them directly. That doesn't mean you have to spend it all on Keds and Cheerios—a family vacation and even a new television are legitimate expenses—but just that you should be mindful where the money is going, so you don't end up in court explaining your finances to the judge because your spouse complained.

Temporary Support While the Divorce Is Pending

It may take a year or more before your divorce is final, and you might not know the permanent child support figure until then. In the meantime, there are bills to pay and mouths to feed. You need some kind of temporary arrangement about child support.

Just like everything else in your divorce, this is a decision that's best made between you and your spouse, without court intervention. You know best the size of your collective financial pie and how it could be sliced to best serve everyone. So try to agree on a temporary amount of child support, and then write up a quick agreement that says what the support amount is, when it is to begin, when in each month it will be paid, and that you agree the amount is temporary. To help you figure out the amount, see "Estimating Child Support in Your Family," below. Before you even do that, you can buy yourselves some time by simply looking at your expenses and ballparking the amount that needs to change hands right away.

If you're not able to reach an agreement yourselves, you can take the issue either to mediation or to court. Sometimes, if you're the custodial parent and things aren't moving quickly enough, going to court for a temporary order (sometimes called "pendente lite," meaning it applies while the divorce case is pending) is your best option. Chapter 5 discusses these temporary court orders.

Working It Out Yourselves

If you and your spouse can decide on an amount of support that seems fair to you, you can be done with the whole issue. Child support is a very good issue to resolve yourselves, without the intervention of a court. Lawyers will tell you that typically, spouses are more likely to stick to the terms of a negotiated agreement than a court order. You'll also save money doing it yourself. But probably the most important aspect is the symbolic value of working together for your kids' welfare. It's great practice for the years of cooperative coparenting that you have ahead of you, too. After you read about all the issues that go into deciding support, have a frank discussion about how much money there is, what the kids' needs are, and what will work for everyone.

Starting With the Guidelines

To get a general idea of what a court would order as support, use your state's child support guidelines. See "How Courts Decide Support Amounts," below. If you and your spouse agree to an amount of support that's different from the guidelines, a court will usually accept the agreement. You are free, within limits, to make whatever decisions you want—you could even decide that one of you is going to stay home with the kids until they reach a certain age and, to facilitate that, the other parent is going to pay more support than the guidelines would otherwise require. Your agreement should briefly state the reasons that the support amount agreed on is way outside of the guidelines, and say that you both believe that the amount is fair and is in your kids' interests.

Child support guidelines are designed to provide children with the basic support needed to feed, clothe, and care for them. It will account for things like one parent's paying for the children's health insurance. Baseline child support doesn't take into account things like tutoring, sleepaway summer camp, music lessons, or snowboarding trips. If you and your spouse are trying to calculate support yourselves, don't leave out those extra expenses. Remember your child is going to keep growing, and you need to anticipate events and expenses like sports uniforms and equipment, a bar or bat mitzvah, braces, SAT and college prep expenses, driving lessons (maybe even a vehicle), a graduation gift, and college tuition. Address those issues either by stating what you'll do about them, or stating that you'll discuss them at a specified time and try to agree what to do then. Include a provision that if you can't agree, you'll go to mediation.

Factoring in Changing Circumstances

You can make agreements in advance about temporary reductions or increases in support tied to certain events. Here are a few examples.

When the kids are away. You might agree to a provision that if the kids go off to summer camp or live away from their regular residence for more than a month, child support is reduced for that month (depending, of course, on who's paying for camp). It doesn't make sense to have a reduction for less than a month, because the expenses that the custodial parent pays won't be that different if the kids are only gone for a week or two. The custodial parent still has the regular expenses of running the household, which is for the kids' benefit.

College. A child who goes off to college may be living in a dorm. You could agree that support payments will be made to the school rather than to the other parent during the months that the child is at school, and will revert to the custodial parent during the summer or other periods that the child is at home. (You aren't obligated to support your college-age kids, but if you intend to provide support, you will need to consider these questions.)

Financial conditions. You can agree to an automatic increase in support to keep pace with inflation, or agree that if the paying spouse's income goes down by a certain percentage, support will be reduced by that same percentage.

How Courts Decide Support Amounts

Given that judges decide most child support awards by looking at guidelines that you can look at yourselves, there's not much point in wasting your time and money arguing in court about it. But before you begin estimating child support and negotiating with your spouse, it helps to know what a court would do and how judges make their decisions.

Basic Support Guidelines

Every state has a formula for calculating child support. The formulas themselves can be quite complicated, but it's pretty easy to find the amount by using software or websites for your state. Some helpful resources are listed in "Estimating Child Support in Your Family," below.

The biggest factor in calculating child support is how much the parents earn. Some states consider both parents' income, but others consider only the income of the noncustodial parent. In most states, the percentage of time that each parent spends with the children is another important factor.

Most states consider at least some of these other factors in calculating child support:

• child support or alimony either parent

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