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Child Support

Child Support

Child support is a court-ordered payment made by one parent to the other parent for the benefit of their child or children. Child support laws in each state outline the amount of the support based on custody or how much time the child lives with each parent, as well as their income and finances. The parent who does not have primary physical custody of the child, or lives with a child less than half the time, is usually the parent ordered to make child support payments. 

Each year millions of parents across the country seek judicial intervention in child support matters. Courts generally adhere to an objective process when determining the proper child support amount. Whether you are a single parent seeking child support or a non-custodial parent with questions about your current support order, our family law attorneys can help to ensure that your children receive the necessary financial support congruent with your income as well as ex-partner's earnings.

Is Child Support Necessary?

The purpose of child support is to provide for the child even in situations where they do not live with both parents. Raising children is expensive, and both parents are responsible for the financial support of their children. Child support is necessary to make sure both parents are fulfilling their financial obligations to the child. 

Child support payments are intended to go toward the expenses involved in raising a child. Some examples include:

  • Food, shelter, and clothing;
  • Medical care and health related expenses;
  • Educational expenses.

Both parents have an obligation to financially support their children. Mandatory child support is the means by which the court can make sure that non-custodial parents are contributing to the needs of their children. Mandatory means that the support is required by law. 

The parent required to pay cannot escape that obligation, and the parent with physical custody of the children cannot refuse to accept the child support payments the court has ordered for the child. 

Who Pays Child Support?

In situations where parents do not share physical custody equally, or where the child lives with one parent more than half of the time, the parent the child spends less time with will be required to pay child support. A mother or a father can be ordered to pay child support. It is not necessary that the parents were ever married for a parent to be ordered to pay child support. 

In some cases there might be a dispute regarding who the biological father of the child is. In those instances the court will usually order a test to determine paternity before calculating and ordering child support. 

Adoptive parents will be subject to child support laws, however absent an adoption, step-parents are not obligated to pay child support to their step-children.

Additional Child Support Factors

The court can consider any relevant information when determining a parent's support obligation. The court will usually start by looking at each parent's gross income, but will also take into consideration things like: taxes, social security deductions, healthcare payments, union dues, required professional licensing fees, and other child support obligations the parent might have. 

Additional factors might include the additional expenses one parent has incurred for their own education or financial obligations for elderly or disabled family members. The court might also consider bonuses or commissions earned in addition to their salary or wages.

Some courts might not stop after considering income. In some situations the court might consider a parent's ability to earn versus their actual earnings. For example, a parent who only earns $50,000 but who has the potential to earn $100,000 might be responsible for a child support payment calculated using the higher amount. This is to avoid non-custodial parents intentionally remaining underemployed to lower their support obligation.

In some cases parents might come to an agreement between themselves regarding the child support payment. However, in almost every case the agreement will require a judge's approval since the judge must make sure the child's best interests are met.

How Is the Amount of Child Support Determined?

Each state has guidelines that are used to calculate the specific child support payment in each situation. The court determines how much the support payments will be based on the specific circumstances of the parents who will be paying. The guidelines will usually give the court a range and then the judge can order an amount within that range. Some states give judges a lot of discretion when determining the final amount, while others require the court to follow very strict guidelines.

Child support calculation is generally based upon a number of financial factors pertaining to both parties. Our knowledgeable legal team will help you compile your financial information as well as ascertain the other parent's current situation in order to make certain your support obligation is fair in light of both party's monthly income and lifestyle. Factors commonly considered by family court judges include:

  • Monthly employment income (minus alimony or other child support obligations)
  • Childcare expenses deducted from your paycheck (e.g., health insurance)
  • Additional medical expenses for the child
  • Each parent's contribution to extra-curricular expenses
  • Costs of daycare or private school tuition
  • Number of children involved in the action
  • Number of dependents of either party not involved in the action

As part of the process each parent will be required to submit their financial information to the court. This is usually in the form of a financial statement that outlines all monthly income and expenses. The court uses the financial information and the amount of time each parent spends with the child pursuant to any custody arrangement and visitation schedule and uses a child support calculator to determine the amount that will be owed each month.

Child Support Awards Enforcement

A child support order is the first step in making sure a parent is meeting their support obligation. However if the parent is not making their required payments the court might have to take additional steps to enforce the child support order. There are several ways to compel the parent to contribute the required amount:

  • Wage garnishment, where the employer is required to withhold a certain amount from the non-paying parent's paycheck and forward the money to the parent who is supposed to receive the support.
  • Garnishing the delinquent parent's tax refund.
  • Placing a lien on their property.
  • Revoking their driver's or professional license.
  • Denying or revoking the issuance of a United States Passport if the parent owes more than $2,500.
  • In rare cases a parent delinquent in child support payments can be held in contempt of court for failing to follow the court order and be required to serve time in jail.

Parents who need assistance with enforcing a child support order can contact their local child support enforcement agency.

Modifying a Current Child Support Order

If you already have a child support order in place, you may be in need of a modification of the monthly obligation. In general, a court may modify a child support order if it finds the financial status of either party has substantially changed and the current support obligation is no longer fair. For instance, if the parent paying support suddenly becomes disabled and is no longer able to work, the court will likely consider reducing his support obligation to meet his current income level. Conversely, if either parent experiences a sudden increase in monthly income, the court may decide to adjust the monthly support amount accordingly. If you require a modification to your child support order, our attorneys will help your compile the requisite financial documentation and present your case presentation to the judge in the proceeding.

In some situations a parent might be able to ask the court to modify a child support order. Typically this requires the parent to show that they have experienced a change in circumstances. The change in circumstances must be such that the ability to pay or needs of the child has been affected. For example, applicable change in circumstances might include:

  • A job change for either parent that increases or decreases their income
  • Changes to the custody arrangement or visitation schedule
  • Temporary economic hardship 
  • A child with a medical emergency
  • A significant change in the other needs of the child, such as an increase in educational expenses.

While the court will consider a change in circumstances and how it affects the child support order, a custodial parent cannot make the unilateral decision to incur a large expense for the child and then force the other parent to help pay for it. This includes the decision to send the child to private school. Courts will look at each situation on a case-by-case basis and determine what share, if any, of a new expense each parent will be responsible for paying.

Whether you are the obligor or obligee, our family law firm can work with you to obtain a child support amount that reflects the best interests of your children. If you are having difficulty meeting your monthly support obligation or believe your child's parent is able to pay more than the amount in the current order, our attorneys will work diligently to achieve a modification of support on your behalf. To speak with one of our reputable family lawyers about your child support matter, contact us today.

Failing to Pay Child Support

Failing to pay child support can have severe consequences. Courts take this responsibility very seriously and will typically give high priority to issues concerning missed child support payments.

The first thing that can happen when a non-custodial parent misses a child support payment or does not pay the full amount is that the custodial parent can enlist the help of the court and state to have the child support order enforced. The type of punishment for not paying child support will usually depend on the reasons that a parent failed to pay child support and also on how far behind they are in missed payments.

Some common punishments that a court may issue for failing to pay child support include:

    • The court may order that a lien be placed against the parent's property until the payments have been made. If the parent fails to do so before the lien period expires, then the property that the lien was placed on can be seized.
    • The missing payments may be reported to credit agencies as debt, which in turn, could affect that parent's credit score.
    • The court may revoke or suspend the parent's driving privileges and recreational licenses. In a worst case scenario, the court may even revoke a professional license like one issued by a bar association or medical board.
    • The other parent may obtain a wage garnishment order from the court. A wage garnishment order will inform an employer to withhold a certain portion of a person's paycheck until the amount of money they owe is paid off.
  • A court may also hold an indebted parent in contempt of court or issue a warrant for their arrest.

In addition, if the court issues a warrant for the indebted parent's arrest, then they may also face criminal penalties for not paying child support, including having to pay criminal fines and potentially receiving a jail or prison sentence.

What Can I Do If I Can't Make My Child Support Payments?

Parents should strive to pay child support in full each month. This can help them to avoid civil and criminal penalties. If a parent is not able to make their child support payments, they may be able to have the child support order modified to a more affordable rate. However, it should be noted that it is very difficult to obtain a child support modification. Moreover, indebted parents will typically need to make back payments on child support.

To initiate the modification process, it is best if the non-custodial parent communicates with the custodial parent and explains the issue. Together, the parties may petition the court to have the original child custody order modified. The custodial parent must also provide a legally necessary reason for the modification. Some reasons that may entitle the non-custodial parent to a modification order include:

  • Losing a job or having to take a job for less pay;
  • Encountering a medical or health issue that makes it impossible to work;
  • Increasing school or healthcare costs for the child, which make it impossible for the parent to keep up with payments; and/or
  • If the custodial parent received a substantial raise at work.

Lastly, in extreme cases and if the non-custodial parent can get the custodial parent to agree, a party may be able to get the child support order waived. This can happen if the parents decide to reunite or if the custodial parent is financially able to support themselves and the child without the other parent's financial assistance.

How Far Behind in Child Support Payment Do I Need to Be Before a Warrant Is Issued?

In general, a child support payment may be considered as late the moment that the assigned due date passes and no payment has arrived. Depending on the contents of the child support order, the indebted parent may have a short amount of time (i.e., a grace period) to make up for the missing payment. However, if this period passes and they still have not made the payment, then the court or a state child support agency may issue a “Notice of Child Support Delinquency.”

Once such a notice is received, the court or state can begin to issue punishments against the parent like wage garnishment orders or placing liens against their personal and real property. A court may also issue a warrant. Specific to child support cases, a judge may issue two kinds of warrants: a civil and a criminal warrant.

A civil warrant is what results when the court holds a non-custodial parent in contempt of court for violating the child support order. This may lead to the non-custodial parent having to pay fines or serving a short jail sentence.

On the other hand, a criminal warrant can be issued when federal or state prosecutors are asked to intervene in a child support case. This can happen when a parent has failed to pay child support for an extended period of time (usually around a year or when the amount owed surpasses $5,000). The parent may then be arrested and will need to appear in court where they can be convicted.

A conviction in a criminal case for failing to pay child support can result in heavy criminal fines, a lengthy prison sentence, and the loss of some parental rights.

Can I Lose Custody for Not Paying Child Support?

In general, a parent will typically not lose custody of a child for not paying child support. For one, the parent who has custody is usually not the parent who is legally obligated to make child support payments.

Second, child support and child custody are two separate issues. Therefore, one does not normally affect the other unless the circumstances constitute an exception. For instance, a parent may lose custody of a child for failing to pay child support if they are sentenced to a stint in prison and no longer have the ability to care for the child due to being incarcerated.

Child Support Application Fraud

Child support refers to court-ordered payments from one parent to another. These payments are generally made monthly, and are made from the noncustodial parent to the custodial parent. Child support payments are intended to provide financial assistance to the custodial parent, as each parent has a duty to provide their child.

Each state maintains its own laws regarding child support payments, as well as its own calculator to determine how much a person should pay per child each month. These laws govern the amount of support based on custody, as well as each parent's income and finances. Child support payments may be ordered when the parents have divorced or legally separated, or are otherwise no longer living together. It is important to note that child support is not necessarily automatic; in some states, the parent will need to petition the court for child support.

When the court is petitioned, they will consider the financial statements provided by each of the child's parents. The court is dependent upon those statements when determining what is in the child's best interest, as well as each parent's ability to financially provide for their child. As previously mentioned, although each state may vary, the court generally requires some type of certification from the parents which serves to assert the accuracy of the information they have provided.

Child support application fraud can be committed by either parent; however, most instances involve the non-custodial parent attempting to deceive the court in order to avoid paying child support. An example of child support application fraud would be when one or both parents provide incomplete or inaccurate information with the intent to influence the court's decision regarding whether child support should be ordered, and in what amount.

The non-custodial parent may accomplish this by hiding additional income sources, such as income from investments. Alternatively the custodial parent may overstate the child's expenses, or include expenses that are not associated with the child's needs. An example of fake child support papers would be when the custodial parent inflates the child's expenses in order to cover personal leisure items that are not associated with the child or their wellbeing in any way.

Lying About Your Income To Avoid Child Support. What are the Consequences for Child Support Fraud?

Non-payment of child support, which includes child support fraud, is taken seriously. Child support enforcement agencies exist at the state and local levels, and maintain resources to enforce child support orders. They may also draw from public funds in order to provide for the child. Because of this, government child support recovery efforts are considerably aggressive, and can result in significant consequences for the responsible party. This can include wage garnishment, as well as seizure of personal property.

Additionally, if the court finds evidence that the child support payments are being used for anything other than the benefit of the child, they may order an investigation into the custodial parent's expenditures. This investigation may interrupt the flow of support payments, and affect the court's decision regarding custody rights and visitation schedules.

Another potential consequence would be if the court orders a retroactive adjustment. This may be ordered if the noncustodial parent hides information regarding their financial situation in order to avoid paying their fair support. An example of this would be getting paid under the table to avoid child support payments. Another example would be not reporting income increase to child support. The court may also order a retroactive adjustment if the noncustodial parent otherwise disrupted the timely determination of child support.

It is important to note that child support fraud can also result in state and federal criminal charges. Because the information provided to the court is made under oath, fraud may constitute a charge for contempt of court, or perjury. When receiving a referral from either state or local agencies, the Office of the Inspector General may investigate child support cases in which the noncustodial parent intentionally fails to make child support payments.

If found guilty and convicted of child support application fraud or nonpayment, the at-fault parent may face imprisonment and fines. Additionally, they may be ordered to pay child support going all the way back to when they first hid relevant information regarding their financial circumstances in order to commit fraud.

Reporting Child Support Fraud

The steps to report someone not paying child support will depend on the state. Generally speaking, the process begins with contacting the state or local child support enforcement agency. The court may take additional steps to enforce the child support order. 

Some of the ways in which a court might demand payment include, but may not be limited to:

  • Wage garnishment, in which an employer is required to withhold a certain amount from the non paying parent's paycheck. This money is then forwarded to the receiving parent;
  • Garnishment of the delinquent parent's tax refund;
  • Placing a lien on the non paying parent's property;
  • Revoking the delinquent parent's driver's and/or professional license; and/or
  • Denying or revoking a United States Passport, if the parent owes more than $2,500.

Additionally, the parent being injured as a result of the other parent's child support fraud should contact the family court which is handling their case. They should petition for a child support order modification, in order to modify any existing child support order to update information about the non paying parent's financial circumstances.

Although the court will consider a change in circumstances and how those changes affect the child support order, the custodial parent is not allowed to make the unilateral decision to take on a large expense for the child and then force the other parent to help pay for it. An example of this would be the decision to send the child to private school instead of public school. Family courts will consider each situation on a case-by-case basis, and determine what share (if any) of a new expense each parent will be responsible for.

Filing Bankruptcy and Child Support Obligations

When someone accumulates more debt than they can handle, they may look to file for bankruptcy to restructure and even discharge some of the funds they owe to others. The U.S. Bankruptcy Code gives both business and individuals federal legal protections, as well as the opportunity to pay off a portion of their debts.

But while you may be able to avoid paying some of your obligations, there are certain debt categories that cannot be wiped away by a bankruptcy filing. Child support obligations are one of them.

Options for Individual Bankruptcy

Most individuals will file for bankruptcy protections under Chapter 7 or Chapter 13 of the Bankruptcy Code. Chapter 7 is generally utilized by people with limited incomes who do not have the ability to pay back all or a certain portion of their debts. The court will appoint a trustee to organize and prioritize the debts, take an inventory of the debtor's property, and sell certain qualified property to pay at least some of the debt.

Chapter 13 bankruptcy is referred to as a reorganization bankruptcy. Property is not sold when you file for Chapter 13 protection. If you successfully complete a court approved repayment plan, you may be able to keep some, if not all, of your property. With both types of bankruptcy, if you follow court orders and make payments when directed, at the end of the process all unsecured debts are discharged (in other words, forgiven). But not all debts are dischargeable.

Dischargeable vs Non-Dischargeable Debt

While most unsecured debts like credit card and medical bills may eventually be discharged, there are some debts that may not be discharged, no matter the Chapter you are filing under. These include:

  • Certain state and federal taxes
  • Fines levied by government agencies
  • Student loans (with a few rare exceptions)
  • Personal injury judgments for injuries sustained while debtor was driving drunk
  • Debts owed to tax-advantage 401k and other retirement plans
  • Debts owed to cooperative housing organizations (for example, a homeowners association)
  • Court levied fines, including criminal restitution orders
  • Spousal support and any attached attorney's fees

And, of course, this includes child support. As with court ordered spousal support, the law makes it a public policy point to make sure no one avoids their obligations to minor children, even under bankruptcy circumstances. Even property that may be exempt from sale under federal law may be seized and sold to ensure these obligations are met.

Priority of Unpaid Child Support in Bankruptcy Proceedings

Any debts for unpaid spousal support and child support will be very high on the list of priority debts during the bankruptcy process. In fact, it will be higher on the list than even unpaid taxes. In addition, attorney's fees attached to either one of the legal obligations are non dischargeable, although the unpaid support must be taken care of first. If you cannot pay the amount immediately, that does not mean that the debt disappears. However, the type of income that qualifies for bankruptcy purposes does depend on the chapter.

If you file for bankruptcy under Chapter 7, any income earned after filing is not considered part of the bankruptcy estate, and can be considered in determining child support obligations and used to pay child support in arrears. In a Chapter 13 bankruptcy, any income earned before or after filing is considered part of the bankruptcy estate.

Anyone seeking to impose a support obligation must request relief from the stay that the court places on that person's property. If a person who filed for Chapter 13 bankruptcy is already subject to a child support order and fails to make support payments, the court will usually lift the stay temporarily so that child support can be recovered.

Avoiding Child Support Increase

Showing the court that certain circumstances have changed can increase the child support payments. The parent can request the court to modify the official child support order either to be increased or decreased. The court will consider if there has been a substantial change in the circumstances such as change in the child's needs, an increase in salary, or the involuntary loss of job. 

After this determination, the court may change the current existing child support order to reflect the changed situation. The order needs to be officially entered by the court, a simple written or verbal agreement among the parents will not legally suffice. 

To avoid getting child support payments unfairly increased, be sure to reach out to a local lawyer to determine what your options are. Furthermore, the court allows for modifications but needs the parent to initiate the process and show the valid reasons for a modification of the child support order. 

Generally, courts look to the child's best interests standard to determine what the child support payments should be. This includes a review of factors such as the child's well being, their physical state, mental state, and religious or cultural preferences. 

Do Child Support Payments End Automatically?

No, the child support payments do not end automatically. The parent needs to reach out to the court and request the termination of child support payments. Typically, child support validly ends when the child reaches the age of maturity, passes away, gets married or leaves for undergraduate studies. However, there may be situations in which the child support would continue after the age of 18 if they reside with the parent or are disabled. 

Getting Child Support Arrears Dismissed

Arrears are the amount of unpaid child support owed to the custodial parent. For example it could be a past due medical bill for the child that the parent failed to pay. Parents are allowed to seek help from the law enforcement and other governmental agencies in pursuing child support. 

Each state has particular government agencies or law enforcement departments that are tasked with enforcing child support orders and assist in collecting past due support. These rules and procedures will vary by local state and counties. A local family lawyer can guide you in filing a motion to dismiss child support arrears, as well assist you with other related matters involving child support. 

Some situations arise when a parent may file behind in making the child support payments with no fault of their own, such as loss of employment. Therefore, the court in some cases may waive some or all back child support, but these scenarios involve the cooperation of both parents. Once, there is an agreement the court will make a decision regarding the dismissal of child support arrears. 

Back Child Support

Child support payments are payments one spouse pays to the other to support their child. Courts can order child support when parents get divorced. When parents get divorced, the parent with whom the child resides after the divorce is called the custodial parent. The parent who does not live with the child is called the non-custodial parent. 

Courts often order child support payments to be made by the non-custodial parent to the custodial parent. Missed child support payments are known as back child support payments.

How are Back Child Support Payments Collected?

Child support payments are legal obligations imposed by a court. A parent violates an order of a court when the parent misses one or more payments. Parents who are owed back child support payments have a right to these payments.

A parent who is owed back child support because the other parent has refused to pay the support may ask a court to garnish the other parent's wages. The court can then order the other parent's employer to deduct wages so the wages can be used to pay back support. Employers  must comply with these orders.

If the parent against whom the garnishment order is issued either loses their job, or the amount of the garnishment is insufficient to cover the back support owed, the parent owed the back support can use other legal remedies to get it. The parent owed support may have a lien placed on the other parent's property. A lien is a legal claim placed against real property (such as a house) or personal property (such as stocks, bonds, jewelry, and furniture). This gives the person who places the lien, called the lienholder, a security interest in that property. The parent owed support is then entitled to the proceeds from the other parent's sale of the property.

Can State Child Support Agencies Collect Overdue Child Support Payments?

Many states give child support enforcement agencies the power to collect payments that are overdue. The agency can act without the parent who is owed the money having to get a court order.

However, the agency cannot act without informing the delinquent parent. Under the due process clause of the 14th Amendment to the United States Constitution, states may not deprive individuals of life, liberty, or property, without due process of law. Due process of law requires the state to give notice to the parent who owes child support, that the state intends to use the collection power.  

The notice explains the collection procedure. The notice also gives the delinquent parent the right to challenge the measure the state wants to use to collect the payment. The notice also informs the noncustodial parent of the date by which they must challenge the measure, and explains that if the parent fails to make the back payments, the state will take action to collect those payments.

These measures to collect back child support include:

    • Unemployment Insurance Benefits (UIB) Intercept. Under UIB intercept, overdue child support payments are deducted from the weekly unemployment insurance benefit payments of parents who owe back child support;
    • Taking of State and Federal Refunds of Income Tax.  Noncustodial parents who owe back child support may have overdue child support payments deducted from their federal or state (or both) income tax refunds;
    • Credit Bureau Submission. Child support payments are debts. The parent owing these payments is a debtor, and the parent who is owed child support is a creditor. A parent who owes back child support is said to be “delinquent” in payment. Parents who are delinquent may have their names given to the three major agencies for consumer credit reporting (Equifax, TransUnion, and Experian). Being listed as a debtor on a consumer credit report can lower a person's credit score. This means lenders may decide not to give a loan or extend credit to a delinquent parent until the debt (the past due child support) is paid; 
    • License Suspension. Some states suspend driver's licenses as well as professional licenses (e.g., pilot licenses, medical licenses, law licenses) until the back child support is paid; and
  • Taking of Lottery Winnings. Some states that run lotteries take a portion of a noncustodial parent's lottery winnings, so that the money can pay for overdue child support. 

How Can a Lawyer Help Me With Child Support Matters?

Child support is a legal obligation that is enforced by the court. The procedures for establishing the required payment can be complicated and confusing.

It is in your best interest to contact a child support lawyer to help you through the process. It is important to remember that making child support payments will not only directly impact your life, but also your child's and any other family members who have to contribute money to support them.

Aside from the emotional difficulties that you and your loved ones may face as a result of missed child support payments, having to modify a child support plan when you have already missed several payments can cause just as much stress on its own. 

An experienced child support lawyer will be able to provide legal advice that is tailored to your exact circumstances and can discuss your current options under the law. Your lawyer can prepare your financial statement and make sure nothing is overlooked. An experienced attorney can help protect your interests and make sure both you and your child receive the best possible outcome based on your situation and circumstances.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.