FAQ - Divorce

Child Support Arrearages

Introduction

Google the term "deadbeat dad" and you will find thousands of websites referring to the fact that many parents who are ordered to pay child support fail to do so. Some sites deplore the state of the law, which allows fathers to escape their responsibility. Some complain that dads get all the negative press when the fact is that moms who are ordered to pay child support fall into arrears at a much higher rate per capita than dads. Others cite example after example of specific cases in which: dads lose track of their kids so quit paying support; dads are glad to support their kids, but refuse to support mom's new boyfriend; dads can't even support themselves let alone their children because of illness, disability, mental health issues, unemployment, and low wages; dads are put in jail for failure to pay; they lose their drivers' licenses, their hunting licenses, etc and so forth. Many private company websites advertise their success at tracking down "deadbeats" and forcing them to pay. Other sites report on studies that show agencies spending millions of dollars on trying to collect only thousands of dollars in arrears.

Unresolved Societal Problem

The only conclusion one can come to when confronted with all this is that the issue of exactly how to support the children of parents who either never lived together or are no longer living together is a gigantic unresolved societal problem for which no one even has a good proposal for solving. In the meantime, the following provides a basic outline of how child support laws work.

State and federal laws

Child support issues are generally the province of state law, and prior to major legislation in which the federal government, through funding of state Child Support Recovery Units (CSRU), the various states had addressed the issues of enforcement of child support orders each in its own way. Through funding mandates in the last two decades, however, the federal government has caused states to become uniform in the ordering and the enforcement of child support and collection of arrearages. Unfortunately, while these mandates may have created greater equality between the states in the amounts ordered, they have not resolved the issues of enforcement and collection.

State Guidelines

For the most part, states now provide guidelines for courts to follow in setting child support. Usually if a court decides to deviate from the guidelines in a particular case, it must set forth rationale for the deviation. Even if the parents decide between themselves that they will not follow the guidelines, the court may not be able to make such a stipulation the order of the court since the guidelines are generally presumed to be in the "best interests of the child." The children are the ones who are owed the right to support.

Guideline Factors

Most state child support guidelines have been developed by the state legislatures who take into account many factors not the least of which is the cost of raising children in the economy. Who will pay child support versus who will receive child support is almost always decided on the basis of who is the primary custodial parent, i.e. which parent's home is the primary residence of the children and who is the non-custodial. Usually, the following amounts are plugged into the state's guideline formula and the resulting figure will become the amount of child support to be paid by the non-custodial parent to the custodial parent:

1. Number of children to be supported - most states' guidelines use a percentage of gross income as the starting basis for court-ordered child support, such as:
   1. One child - 17% of gross income of non-custodial parent
   2. Two children - 25% of gross income of non-custodial parent
   3. Three children - 29% of gross income of non-custodial parent, and so forth
      (Example only)
      
      
2. Gross income of non-custodial parent - generally, the income of the custodial parent is not taken into account unless the non-custodial parent has the children for more than 25% of the overnights.
   
   
3. Number of overnights that the children spend with the non-custodial parent - as more and more parents are agreeing to time that is equal with the children; more states are including the percentage of time with each parent as a factor in the formula.
   
   
4. Gross income of custodial parent - in many states, the income of the custodial parent is not taken into account at all. In recent years, however, especially as more and more courts are ordering joint physical custody and children are spending more equal time between their parents, both parents' incomes figure into the equation.
   
   
5. Other factors - while some states have decided that medical insurance, day care expenses and other major child-raising expenses are factored into the guidelines percentages, more and more states are separating these factors out and requiring courts to include in their final orders provisions regarding these factors.

Enforceability/Unenforceability/Modification Issues

1. Percentage orders - Prior to the federal funding mandates, courts often set child support as a percentage of the payor's gross income since many payors' incomes are subject to variation on a monthly basis. However, courts must now set child support in a fixed amount, which is based on the appropriate percentage of the payor's gross income. Courts, payors, and recipients can have a difficult time knowing exactly what the child support obligation is after a time if the payor's income has varied dramatically from month to month or season to season. Some court orders provide for an annual accounting based on the payor's tax returns.
   
   
2. Automatic withholding by payor's employer - Nearly every state statute provides that child support payments should be automatically withheld by the employer from the payor's paycheck.
   
   
3. Payments must be made through the state CSRU - A further requirement is that the payments be sent to the state agency that collects and distributes all child support payments for accounting purposes.
   
   
4. New Hire requirement - As employers take on newly hired personnel, they must report to the employee's social security number so that child support records can be checked for reports of arrearages.
   
   
5. Direct payments - Payors are not given credit for payments they make directly to the custodial parent.
   
   
6. In-kind payments - Credit is not given for in-kind payments such as diapers and other necessities either.
   
   
7. Payor is paid in cash - Some payors arrange with their employers to be paid in cash so that they can avoid child support withholding orders.
   
   
8. Payor moves out of state - If a payor moves out of state, it can be difficult for state agencies to coordinate efforts to enforce child support orders.
   
   
9. Children now live with payor - Often children end up living with the original non-custodial parent. Without a modification of the original order, most child support agencies will continue to require withholding payment according to the original order.
   
   
10. Non-dischargeable in bankruptcy - No child support obligation can be discharged in bankruptcy.

Conclusion

The setting of child support amounts, the enforcement of child support orders and the collection of child support arrearages all create considerable problems for both custodial parents, non-custodial parents and the legal system in all the states. Given all the factors and difference among children, their parents, their incomes, as well as their family situations, it is very unlikely that a one-size-fits-all solution will be provided anytime soon. As in child custody matters, however, those who are keeping their eyes on the "best interests of the children," are most likely to offer the most workable answers to these persistent questions.

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