Establishing and Calculating Child Support

Learn the rules on child support, including who has to pay it, how the amount is determined, and when a support order can be changed.

By , Retired Judge

All parents are legally required to support their children by providing for their basic needs, like food, clothing, shelter, and health care. When parents are divorced or separated, or were never married to each other, child support is intended to make sure they each provide their fair share of this financial support for their kids.

That basic principle might seem simple, but calculating the amount of support parents should pay can be complicated. Here are some answers to common questions about child support.

What Is Child Support?

When both parents don't live together with a child, that kid usually lives primarily with one of the parents (known as the "custodial parent")—except in cases where the parents have joint physical custody. Child support is the amount of money the noncustodial parent pays to the custodial parent to help cover the child's basic needs. Child support is generally part of a court order, even if that order is based on an agreement between the parents (more on that below).

How Is Child Support Determined? How Do Child Support Guidelines Work?

Under federal law (45 CFR § 302.56), all states must have guidelines for calculating child support. However, each state establishes its own guidelines. So if you're asking how much child support you'll have to pay, the answer is that it all depends on the guidelines adopted by your state, as well as your unique circumstances.

Because both parents are obligated to support their children, the guidelines calculate a range of child support each parent is responsible for. Judges generally have the freedom in individual cases to order child support that doesn't follow the guidelines exactly, if that's warranted. A state's divorce laws usually spell out the acceptable reasons for deviating from the guidelines (more on that below).

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

  • the child's needs—including health insurance, education, day care, and any 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 that provides a complete picture of that parent's financial situation, including details of their monthly income and expenses.

When setting a level of child support, a judge will usually consider the family's standard of living before the parents' divorce or separation. Then the judge will try to order support that will continue this living standard—at least as much as possible. At the same time, however, judges know how difficult it is to support two households on the same income that formerly supported one home. In light of that, maintaining the children's previous standard of living is more a goal than a guarantee.

Can Parents Make Their Own Child Support Agreement?

They can. But your state's laws will almost certainly require that a judge approve the agreed amount of child support. 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.

That's why judges rarely will approve an agreement that provides for zero child support, except in rare cases where there's a good reason—such as when a noncustodial parent is completely unable to work due to a medical condition.

If you want to come to an agreement with the other parent but are having trouble working out your differences, you might try mediation.

Can an Existing Child Support Order Be Changed?

You and your child's other parent may agree to modify an existing child support order, but the proposed modification can't be enforced unless a judge approves it.

If you and your ex can't agree on a change that you want, you'll have to file a written request (in the form of a motion) in the same court where the original order was issued. A judge will then make a decision on your request.

As a general rule, judges won't consider modifying existing orders unless the requesting parent can demonstrate that there has been a significant change in circumstances since the existing order was issued. This rule helps prevent courts from becoming overburdened with frequent and repetitive modification requests.

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

  • 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 new, additional income because of remarriage
  • a change in either parent's employment situation
  • either parent's disability, or
  • a change in the child's needs.

Do Custody Arrangements Affect Child Support Obligations?

Depending on where you live, the parents' physical custody of children and parenting time (visitation) can significantly affect child 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 order for custody and/or parenting time. That's because parents usually have extra expenses when their children stay at their home regularly. For instance, they might need another bedroom and have to pay more for groceries and the like. So judges may consider overnight stays when they are determining the level of child support.

But be aware that each state will have its own rules on how many overnights will factor in to child support calculations.

Can Child Support Be Based on Earning Capacity Rather Than Actual Income?

Unfortunately, some parents purposely lower their income in an effort to reduce their obligation to pay child support. If a judge believes that you're voluntarily unemployed or underemployed, the judge may "impute" income to you. Basically, this means that child support will be calculated based on what you should be earning, rather than on your actual income.

That said, there may be legitimate reasons why some parents aren't earning up to their potential. For example, they may have a disability that prevents or limits employment, or they may have been laid off and unable to find a new job despite a diligent search. Also, depending on state law, some judges might not impute income if a parent is pursuing higher education.

When determining a parent's potential employment and earnings, judges tend to look at the parent's level of education, recent work history, and occupational qualifications, as well as prevailing job opportunities and pay levels in the community.

Will Judges Consider Parents' Living Expenses When Determining Child Support?

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

Judges may or may not consider other expenses, depending on what they're for. Remember that the top priority for a child support order is to protect the children's interests. So, for example, it's not reasonable to expect a judge to lower a child support obligation because a parent has to pay off a gambling debt.

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's support obligation for other children (based on prior support orders).

What Is a Cost-of-Living Adjustment (COLA) Clause for Child Support?

A COLA clause in a child support order means that payments automatically increase according to a schedule, at a rate equal to an increase in the cost of living (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 require that child support orders include COLA clauses.

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