Child Support and How To Force Payments
Courts and legislatures on both the state and federal level have tried to address the problems involved in determining fair and adequate child support and enforcing support orders. The sad fact remains, however, that child support is too often neglected or evaded entirely by the parent who's supposed to pay it.
If you are the parent of a minor child, whether by birth or through adoption, you have a legal obligation to provide financially for that child's shelter, food, clothing, education and medical care. No matter how bitter or unpleasant a divorce may be, no matter how disagreeable an ex-spouse becomes, even when visitation is unfairly withheld, your obligation to provide for your child continues until that child becomes a legal adult.
Federal law now requires each state to establish guidelines for calculating child support. The purpose of these guidelines is to eliminate unfair or arbitrary awards of support. In most states, the guidelines are fairly well defined, and take into account the incomes of each parent and the number of children to be provided for. The parent who receives physical custody of the child usually contributes a smaller share financially, because of the extra expenses associated with having custody.
Unfortunately, arriving at an award of child support is one thing; enforcing that award is another problem entirely. According to U. S. Census Bureau statistics, only about 26 percent of parents who have a court order for child support actually receive all the money they are supposed to get. One in three children who are entitled to support get nothing at all from the non-custodial parent.
In an effort to combat this problem, every state has now passed laws designed to make collection of support from an out-of-state parent an easier task. They permit a parent who has been awarded child support in one state to collect it from a parent who lives out of state by using the court system itself. The court in the state when the support was awarded contacts the court in the state where the non-paying parent lives. That court then orders the parent to make the support payments.
While these laws seem to be of great value, they don't always work as planned. First, the parent with custody has to know where the other parent is living, which in itself isn't always easy to do. Second, even if the parent is found, the court in the state where he lives may modify the amount to be paid, and may be inclined to do so if the parent claims to be out of work or down on his or her luck. And finally, given the number of other cases the courts have to deal with, these cases tend to get relegated to the bottom of the pile.
There are other methods available for collecting unpaid child support. State laws permit support payments to be withheld from a parent's paycheck. The IRS can withhold a delinquent parent's income tax refund and take other steps such as seizing property, and state revenue departments can also seize tax refunds to satisfy unpaid child support obligations. A parent who refuses to make court ordered child support payments can also be subject to charges of contempt of court and can also face criminal prosecution. In some states, a parent's professional license can also be suspended or revoked for failure to pay required child support.
Child Support Orders
If your child's parent tries to avoid paying support, here's what you can do to force payment.
If child support enforcement becomes an issue, it is necessary to have a legal order for child support spelling out the amount of the obligation and how it is to be paid. Data from the United States Census Bureau show that, of the over 11 million families with a parent living elsewhere, only 56 percent have legally binding support orders.
Establishing a support order depends on how much success you and your caseworker or lawyer have in several critical areas, such as locating the noncustodial parent if necessary, identifying what he or she can pay, and determining the financial needs of the child.
States are required to have child support guidelines available to all people who set child support amounts. Most State guidelines consider the needs of the child, other dependents, and the ability of the parents to pay. States must use the guidelines unless they can be shown to be inappropriate in a particular case.
States today have arrangements for establishing the support order by an administrative procedure or other expedited legal procedure. The hearing may be conducted by a master or a referee of the court, or by an administrative hearings officer. An agreement made between the parents, based on the appropriate child support guidelines, and approved by this kind of agency generally has the same effect as one established in court. It is legally binding on the parties concerned.
The agreement that the parents make should provide for the child's present and future well-being. It may be useful to discuss these issues together if you can, or with a mediator or family counselor. You may call your Child Support Enforcement (CSE) office to find out about your State's guidelines.
How does the caseworker find out about the other parent's income or assets? I don't know much that will help.
The caseworker will make every possible effort to identify the parent's employment, property owned, and any other sources of income or assets. This information must be verified before the support order is final. Under certain situations, the IRS may provide financial information about the parent's earned and unearned income such as interest payments and unemployment compensation. The State CSE agency now has access to financial institution data, such as bank accounts, and credit bureau data, which may provide information about employers and/or assets.
I'm sure the other parent is willing to pay support. Can we make an agreement between ourselves and present it to the court?
If parents can cooperate and agree, all the better. You can get help from a lawyer, mediator or family counselor. The court's sole interest in your agreement is to see that it is fair to all parties, that the welfare of the children is protected, and that the agreement conforms with the guidelines.
Are the earnings of both parents considered in setting support awards?
In some State guidelines, both parents' earnings are considered in setting the amount of the support order. Check with your CSE office. Laws vary from State to State, but parents who can work out a fair support agreement between themselves will have a better chance of having their wishes recognized in court.
My wife and I are working out a joint custody agreement. How would the court decide the amount of child support for each of us?
That depends a lot on the terms of your custody agreement and on your State guidelines: some States have guideline formulas that take joint custody into account. The same factors would apply: State guidelines, each parent's ability to pay, and the needs of the child.
My husband's income is enough to support the children and me without a drop in our standard of living after the divorce. Do the courts consider this?
These decisions, again, are based on the State's guidelines. Of course, parents can try to have the amount of support changed if their financial situations change.
I just heard that my son's mother has had three promotions in the last four years but the child support is still like it was six years ago. Is there some way to find out when she has a raise?
CSE offices will review child support orders every three years if either parent requests such a review. Ask your caseworker for information about reviewing and, if appropriate, modifying your child support order. States can adjust child support orders according to child support guidelines, a cost of living adjustment, or automated methods determined by the State. What can I do to get my support increased if it is too low?
If you go to your CSE office for a modification of your order, the income and assets of the noncustodial parent, in many States your financial situation, and any special needs of the child will need to be determined. If appropriate, the agency can then seek a legal modification.
Is there a limit to the amount of money that can be taken from my paycheck for child support?
The amount that can be withheld from an employee's disposable wages is limited by the Federal Consumer Credit Protection Act (FCCPA) to 50 percent of disposable earnings if an obligated parent has a second family and 60 percent if there is no second family. These limits are each increased by 5 percent (to 55% and 65%) if payments are in arrears for a period equal to 12 weeks or more. State law may further limit the amount that can be taken from a wage earner's paycheck.
My ex-husband has remarried and has another family to support. How will this affect the support that my children are due?
Even though the noncustodial parent has a second family, this does not eliminate responsibility to the first family. In some States, the judge may grant the noncustodial parent a decrease in the obligation based on guidelines for child support. You should be notified beforehand and given an opportunity to contest the proposed change. Other factors which could lower the support order include steady employment of the child or poor health or decreased earning ability of the noncustodial parent.
My children's father is divorcing again and will have another child support order. We live in another State and I'm afraid that this second order will be enforced before mine.
State guidelines may indicate how child support is to be shared when there is more than one support order. If his income will not provide for both orders, the amount of support for your children may be reduced, but you will receive a share of the support collected. For orders enforced by wage withholding, States must have a formula for sharing the available income among the support orders. Ask your caseworker for more information.
I can't get health insurance with my job but my ex-wife gets good benefits where she works. Can she be required to put the children on her insurance?
Yes. The CSE agency must petition the court to include medical support in any order for child support when employment related or other group health insurance is available to the noncustodial parent at a reasonable cost. Court orders can also be modified to include health care coverage.
If you are not receiving cash assistance or Medicaid, the CSE agency will help you enforce a medical support order if you want it to. If you do not want its help, you may decline it. For people on cash assistance, or Medicaid, the CSE agency must order the noncustodial parent to provide health insurance, if it is available.
Federal law requires States to have laws which should make medical support enforcement easier. For example, insurers can no longer refuse to enroll a child in a health care plan because the parents were not married or because the child does not live in the same household as the enrolled parent. The law also created a tool that child support agencies will be able to use to establish and enforce medical support when the noncustodial parent participates in a group health plan but does not enroll the child.
This law provides that custodial parents can obtain information about coverage directly from an insurer, submit claims directly to the insurer, and be reimbursed directly by an insurer. For specific information about these laws in your State, contact the CSE office.
The father of my child is in jail. Can I get support?
Past-due support may accumulate while the father is in jail. But unless he has other assets, such as property or any income such as wages from a work-release program, it is unlikely that support can be collected while he is in jail. Depending on State law, your support order may be modified so that payment is deferred until he is released and working.
After I pay my child support, I don't even have enough money for decent food. When my child support order was set I was making about $300 a month more than I am now. Can I get the order changed?
Either parent can request a review, and adjustment, if appropriate, of a child support obligation every 36 months, or sooner if there has been a substantial change in circumstances such as reduced income of the obligated parent. Check with your CSE office to see if your child support obligation is in line with State guidelines and ask how to request a review.
If your case does not meet the State's standards for review, either because the order has been reviewed within three years or the change in income is smaller than would merit an adjustment under State standards, you may still be able to petition the courts for a hearing. In this case, it may be helpful to have the services of an attorney. Your local legal aid society may be able to provide low-cost counsel to parents who cannot afford a private attorney. Also a number of States have information about how to handle your case pro se (a legal term for representing yourself) to have the courts determine if your support obligation should be changed. Contact your local CSE office or the court.