Establishing and Calculating Child Support

Learn more about how courts determine who should pay child support and how much is appropriate.

What is child support?

When parents with a child separate or divorce, the parent with whom the child primarily resides is designated in the law as the "custodial" parent. The other parent is the "noncustodial" parent. "Child support" is the amount of money the noncustodial parent pays to the other parent to help cover the child's basic needs. Examples of basic needs are: food, clothing, shelter, education expenses, and health care.

What is child support based on?

Child support is primarily based on parental income. But the definition of parental income for purposes of calculating child support can vary from state to state. For example, some states may look at both parents' income, while others may only take the noncustodial parent's income into account.

How is child support determined?

Under federal law (45 CFR § 302.56), all states must establish guidelines regarding how to calculate child support. However, each state establishes its own guidelines. So if you're asking how much child support should I pay, the answer is that it all depends on the guidelines adopted by your state.

Note that both parents have an obligation to support their children. The guidelines calculate a range of child support each parent is responsible for. Most—if not all—states give judges the freedom to deviate from the guidelines, if warranted. A state's divorce laws usually list acceptable reasons for a deviation.

Regardless of how much latitude the law may give judges, the guidelines in effect in most states specify factors the court must consider in determining who pays how much child support. These factors usually include items such as:

  • the child's needs—including health insurance, education, day care, and special needs
  • the custodial parent's income and needs
  • the paying parent's ability to pay, and
  • the child's standard of living before divorce or separation.

Before making a decision on child support, courts normally require each parent to fill out a form which provides a complete picture of that parent's financial situation. In the financial statements, the parents must detail their monthly income and expenses.

As indicated in the above list, when a court sets child support it usually considers the family's pre-divorce (or separation) standard of living and, to the degree possible, attempts to continue this standard for the children. But courts are aware of the difficulty in maintaining two households on the same income that formerly supported one home. In light of that, maintaining the same standard of living is more a goal than a guarantee.

Can parents agree between themselves on the amount of child support?

They can. But your state's laws will almost certainly require that a judge approve the agreed upon support figure. Judges are duty-bound to give priority to a child's best interests, and they will do whatever is necessary to ensure that children aren't shortchanged.

Will the court consider high living expenses, such as loan payments and income taxes, when determining a parent's ability to pay child support?

In determining a parent's income for child support purposes, courts typically look at the parent's gross income from all sources. They then subtract certain obligatory deductions, like income taxes, Social Security, health care, and mandatory union dues.

As to other expenses, whether the court will take them into consideration depends on what they relate to. As indicated earlier, the top priority for judges is protecting the children. So, for example, if you took out a loan to pay off a gambling debt, you can't reasonably expect a judge to allow you to use that to lower your child support obligation.

A good way to put this in perspective is to look at some of the factors judges can consider when determining whether to deviate from the guidelines. These factors may include:

  • a parent's very high or low income
  • either parent's unreimbursed medical or dental expenses
  • tuition for children (such as for private or parochial school)
  • education expenses for either parent to improve earning capacity
  • special needs of gifted or disabled children
  • substantiated financial obligations for elder care or for a disabled family member, and
  • a parent owing support to more than one family (based on prior support orders).

Can the court base its child support order on what I'm able to earn, as opposed to what I'm actually earning?

In a word... yes. If the court believes you're voluntarily unemployed or underemployed, it has the authority to "impute" income to you. What this means is that in calculating child support, the court can base your support obligation on what you should be earning, rather than your actual income. The reason for this is that some people purposely reduce their income in an effort to decrease their child support (or alimony) obligations.

That said, there may be legitimate reasons why a parent isn't earning to potential. For example, perhaps a parent has developed a long-term disability that prevents employment. Or parents might be laid off by their employer, through no fault of their own. Depending on a state's laws, some judges might not impute income if a parent is pursuing higher education.

When determining a parent's employment potential and probable earnings level, courts tend to look at the parent's education status, recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.

Can I modify the amount of child support?

You and your child's other parent may agree to modify the child support terms, but the proposed modification must be approved by a judge to be legally enforceable.

If you and your ex can't agree on a change, you'll have to file a motion (written request) with the court to have a judge make the decision for you. As a general rule, the court won't modify an existing order unless the parent proposing the modification can show a significant change of circumstances from when the current order was issued. This rule helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

Examples of the types of changes that frequently support modification orders are:

  • a child's medical emergency
  • the paying parent's temporary inability to pay (for instance, because of illness or an additional financial burden such as a medical emergency or job loss)
  • the recipient parent's temporary economic or medical hardship
  • either parent's receipt of additional income from remarriage
  • either parent's employment change
  • either parent's disability, or
  • a change in the child's needs.

What is a cost of living adjustment (COLA) clause?

A COLA clause in a child support order means that payments automatically increase according to a specified schedule, at a rate equal to the cost of living increase as determined by an economic indicator (such as the Consumer Price Index). This eliminates the need for any modification requests based solely on cost of living increases. Some states mandate COLA clauses in child support orders.

Do custody arrangements affect child support obligations?

Custody and parenting time (visitation) arrangements can affect support obligations. In many states, the child support guidelines take into account the number of overnight stays a child has with a parent under the existing custody and/or parenting time order.

The reason for this is that when a child is staying with a parent, that parent will likely incur expenses in seeing to the child's needs. So in order to balance the scales, the courts will take overnight stays into consideration in determining child support. But be aware that each state will have its own rules as to the number of overnights that will factor in to child support calculations.

For clear legal expertise and invaluable insights into child support, see Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo).

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