Child Support Survival Guide: Child Support Guidelines
California guidelines are similar to those in many states.
Because child support guidelines have wide variations from state to
state, we will explain them using California as an example. Parents who reside in other states should contact their CSE agency to obtain specific information on child support guidelines in their own state.
In California, the agency may file a civil action to recover back child support for periods in which the child received AFDC. However, California's statute of limitations places a limit of three years on the period for which the CSE agency can recover back child support, calculated backwards from the date the complaint for paternity and support was filed. If the complaint was filed with the clerk of the court on May 1, 1995, but the complaint and the summons was not served on the noncustodial parent until July 1, 1996, the government may seek reimbursement for welfare benefits provided to the child retroactive to May 1, 1992. However, if the agency does not serve the summons and complaint on the noncustodial parent within three years, it generally forfeits the right to obtain reimbursement for that period.
The CSE agency must have information about the noncustodial parent's income during each year it wishes to set a support or reimbursement order. Agencies are required to periodically send for income reports on noncustodial parents from the state's Employment Development Department and income tax agency. These reports usually cover many years of income, because they often accumulate while the agency attempts to locate and serve the noncustodial parent. If the noncustodial parent has been regularly employed during the period for which the CSE agency can obtain an order of retroactive child support, the amount of reimbursement is likely to be substantial.
The amount of current child support to be paid by the noncustodial parent is determined by a formula established by the legislature in the statutes establishing child support guidelines and generally based on the net pay of the noncustodial parent. When the custodial parent is employed, the formula considers his or her net pay, as well. The amount of the order increases in graduated stages when it covers more than one child. However, the maximum amount that may be collected by garnishment of the noncustodial parent's wages cannot exceed 50 percent of his or her net pay. Any amount exceeding 50 percent accrues as a past-due child support balance.
The child support formula used in California on AFDC cases produces support orders that approximate 25 percent of the noncustodial parent's net pay for the support of one child.
Net pay is determined by deducting state and federal taxes, mandatory retirement contributions (voluntary retirement contributions, such as deferred compensation or 401(k) plans do not qualify), union dues, and health insurance premiums from the gross wages.
The agency then determines the amount of time the noncustodial parent spends visiting the child. A typical visitation credit of 20 percent may be factored in when the noncustodial parent spends 20 percent of the average month with the child. If the noncustodial parent spends more or less than 20 percent of time with the child, the amount may be reduced or increased accordingly.
Once the noncustodial parent's net income has been determined, the agency determines the amount of retroactive child support owed. If the child has received AFDC, the agency calculates the amount of reimbursement by determining what the amount should have been prior to the filing of the complaint.
Thus, if the noncustodial parent's net pay, after factoring in all of the deductions discussed above, is $2,000 per month, the order for child support should approximate $500 per month for current support for one child.
In the situation discussed earlier in this article, the agency would calculate welfare reimbursement for AFDC paid on behalf of the child retroactive to May 1, 1992. If the noncustodial parent averaged $2,000 per month in net income during the period for which reimbursement is sought, and the CSE agency calculated the parent's ability to pay child support at $500 per month, the noncustodial parent would be subject to a $31,000 welfare reimbursement order for the period of May 1, 1992, through July 31, 1997.
However, if the noncustodial parent was unemployed or suffered reduced employment or income during part of the reimbursement period, the retroactive child support order is reduced accordingly. Some agencies calculate a noncustodial parent's ability to pay support on a month-to-month basis. Others average a parent's income over many months or use annual income to determine the long-term ability of the parent to pay support. The latter approach is especially useful when the noncustodial parent's income has significant month-to-month fluctuations.
Because many CSE agencies regularly obtain welfare reimbursement orders, a noncustodial parent who fails to pay child support on an ongoing basis from the time the parent separated from his or her child is only delaying the inevitable. Noncustodial parents can avoid accumulating a large retroactive child support debt by facing up to their support obligations at an early date. Even if the noncustodial parent does not agree with the calculations, he or she should work to resolve the order by agreement with the agency or in court in a timely fashion.
A noncustodial parent who voluntarily pays child support from the first month after separation should keep accurate payment records. If the custodial parent receives AFDC during the separation, accurate records of support voluntarily paid to him or her will likely be credited to any reimbursement order later signed by a judge. Voluntary payment of child support upon separation frequently prevents the custodial parent from needing to apply for public assistance. Thus, the custodial parent avoids the financial hardship and stigma associated with public assistance, the child receives financial support, governmental costs are reduced, and the noncustodial parent avoids a burdensome debt.
Nonaid vs. AFDC cases
One of the most significant differences between a welfare case and a nonwelfare case is that the nonaid custodial parent is not able to obtain a retroactive child support order for periods of time prior to the filing of the civil action for child support. Unlike the welfare case where reimbursement for prior welfare payments can be set retroactively, child support in a nonaid case can begin only from the date the complaint has been filed.
The nonaid custodial parent who procrastinates in filing a civil action for support can permanently lose the right to obtain child support from the noncustodial parent for all periods prior to filing the action. The nonaid custodial parent who is separated from the other parent and does not have a temporary or permanent order for child support should quickly begin the process of obtaining an order.
Another difference in a nonaid case is that the custodial parent's income is normally considered in determining the child support order. The greater the custodial parent's income, the smaller the support order is likely to be. The nonaid custodial parent also has the right to negotiate the level of support with the noncustodial parent. Unless the agency determines that the order negotiated by the parents is unjust or endangers the welfare of the child, it usually honors any agreements made by the parents. This means that a nonaid custodial parent may agree to stipulate to a current support order that falls below the level that would otherwise be ordered under the statewide guidelines.
In contrast, a custodial parent who receives AFDC assigns to the government the right to collect child support from the noncustodial parent, and the custodial parent ordinarily has no control over the level of the order. The agency usually follows the state child support guidelines in determining child support orders in aid cases.
The credit most child support guidelines give to a noncustodial parent for visitation time provides an incentive for the noncustodial parent to be an active participant in the children's care. The sliding scale that reduces the level of the support order as the percentage of visitation time increases is based on the idea that during the time that a child is visiting the noncustodial parent, he or she is respon- sible for providing shelter, food, and other necessities.
There is a dispute over the amount of real reduction in a custodial parent's child rearing costs caused by the noncustodial parent's visitation. Many expenses continue regardless of the amount of time the child spends with the noncustodial parent. Moreover, most visitation credit is reserved for regular overnight visits with the noncustodial parent.
On a different note, custodial parents (but usually not custodial persons' relatives) who receive the services of a CSE agency can become parties to child support actions after an order has been obtained. Questions of custody, visitation, and restraining orders can be litigated on CSE agency court orders in some states. Agencies are not required to participate in determining custody or visitation issues, but they are involved in all actions that pertain to child support, unless the nonaid custodial parent makes a written request that the agency close the case.
Nonaid custodial parents who have a CSE agency case may obtain modifications and enforcement of divorce support orders without the written permission of the agency, but if a custodial parent chooses to keep his or her case open with the agency after he or she has taken independent action, the parent must inform the agency of any modifications and turn over or report to the agency any payments directly received from the noncustodial parent.
The childcare component of child support orders has been a significant development in recent years. Before its implementation, the custodial parent was expected to use a portion of child support to pay for childcare. Costs of childcare have risen so dramatically in recent years that custodial parents had little left to pay for food, clothing, and housing costs associated with the child.
A custodial parent who receives AFDC is not entitled to receive childcare support from the noncustodial parent, because he or she is usually unemployed and has little or no need for childcare.
The nonaid custodial parent who seeks support for childcare must provide proof of monthly childcare costs. The noncustodial parent can be required to pay half of the childcare costs.
Because a nonaid custodial parent must usually work outside the home, requiring the noncustodial parent to share part of the childcare costs has facilitated employment by more nonaid custodial parents and helped these parents avoid having to apply for welfare. Therefore, when the CSE agency determines the level of a support order, it adds half of the childcare costs into the order. Orders that require the noncustodial parent to share in childcare costs, but do not fix a dollar amount to be paid by the noncustodial parent for childcare are difficult to enforce. It is a prudent practice for a custodial parent to determine the actual costs of childcare, enabling the CSE agency to fix a specified amount.
Child support orders for self-employed noncustodial parents
Determining the ability of a self-employed person to pay child support requires a detailed examination of the person's business income and assets. The self-employed person does not make regular wage reports to a state employment agency, and many do not pay themselves a fixed or regular salary. State and federal tax returns are useful, and are either provided by the parent or obtained from the tax agency. The CSE agency can obtain copies of the noncustodial parent's credit applications and reports as a means of determining his or her true income. The self-employed noncustodial parent may be required to complete a financial statement under penalty of perjury.
The formulas for determining the child support orders are the same as for salaried noncustodial parents, but business expenses and deductions must be considered, and accounting methods that are manipulated to show a paper "loss" or minimal income for a self-employed noncustodial parent who otherwise lives a comfortable life style must be disregarded.
The CSE agency usually deducts "reasonable" out-of-pocket business expenses from the gross income of the self-employed person to arrive at net income that is often higher than that shown on that person's income tax returns. These differences commonly provoke disagreements between the CSE agency and the self-employed parent that require judicial resolution. Self-employed noncustodial parents commonly hire private attorneys to represent them in the resolution of these issues. However, it is possible for a noncustodial parent who operates a small business to resolve these problems without a court hearing.
The net pay of noncustodial parents can also be affected by income from the sale of real estate, from rentals and inheritances, trust account revenues, dividends and returns on stocks and bonds, and interest-bearing accounts. The nonaid custodial parent should provide the agency with as much information as possible on income generating property to enable the agency to make an accurate determination of his or her true income or net worth.
In a nonaid case, dependents in the home of the noncustodial parent are his or her legal responsibility and can be credited as hardships that can reduce the amount of support owed. Hardship deductions reduce the amount that the noncustodial parent must pay in child support. However, hardship deductions like these are generally not given in an AFDC case.
There is a dispute as to whether a noncustodial parent is entitled to a hardship deduction for voluntarily supporting a new spouse's children for whom the noncustodial parent is not a biological parent. Some judges give a hardship deduction for voluntary support of stepchildren; others do not. Most agencies do not agree to a hardship deduction for the voluntary support of stepchildren.
A noncustodial parent who has remarried and produced children by his or her new spouse may receive only a 50-percent hardship deduction for the support of the second marriage's children when the new spouse is employed. This is because the new spouse is also responsible for supporting the children of the second marriage and capable of providing that support.
Both custodial and noncustodial parents may claim a hardship deduction to reduce that parent's income for determining the level of a child support order. Many noncustodial parents literally interpret the term "hardship deduction" as if all of their bills and expenses constitute hardships for which they should be given credit. Credit card debt, car payments, mortgage expenses, boat and motorcycle payments, etc., are not considered for purposes of applying the hardship deduction. Many of these expenses are life style choices and any hardship attendant to them has been voluntarily incurred. The law provides that a parent's first obligation is the support of his or her child.
The support of a family member who has a life-threatening or catastrophic illness, the support of a dependent parent or grandparent who lives with the parent, the support of one's own biological children from other relationships and for whom no other support is received, and a personal illness that creates financial hardship, are examples of hardships for which the CSE agency normally grants a deduction before determining the child support obligation.
The role of benefits in determining a child support order
A child support order is not calculated only on income from employment. Unemployment Insurance Benefits (UIB), Disability Insurance Benefits (DIB), Worker's Compensation Benefits (WCB), pension or retirement benefits; and Social Security retirement and disability benefits are all considered in determining the level of a child support order, but there are limitations on collection measures against these sources of income. Generally, only 25 percent of these types of benefits can be garnished or attached for child support.
When a noncustodial parent's children are awarded Social Security benefits based on that parent's claim, the amount of the monthly benefits may be credited toward the noncustodial parent's monthly support obligation. If the Social Security payments to the children meet or exceed the noncustodial parent's monthly obligation, he or she is not required to pay any additional monthly support. If the payments fall below the ordered monthly support amount, the noncustodial parent must pay the difference.
When the noncustodial parent is receiving AFDC, or General Assistance, or is unemployed and without income, the agency usually obtains an order in which the determination of the support amount is declared reserved until the parent is able to pay support. This same procedure is followed in calculating reimbursement for AFDC cases. A noncustodial parent who had no income is not required to pay reimbursement for AFDC for that period. In these situations, the court order reserves the establishment of a child support order retroactive to the date that the noncustodial parent becomes able to pay support. A "reserved" child support order simply postpones setting an amount until a later date.
This means that if a noncustodial parent signs a stipulation that reserves support because he or she has no ability to pay it, the agency will not charge any child support at that time but can later establish an order retroactive to the date the noncustodial parent regained the ability to pay support. This process can also be used in nonaid cases. Such orders protect against the noncustodial parent who gains an ability to pay but does not inform the custodial parent or the agency of the change in financial conditions.
Once the agency has determined that the noncustodial parent has the ability to provide support, it may petition the court to set an order for current support that is retroactive to the date that the noncustodial parent became able to pay. This process can create the large amounts of support that commonly face noncustodial parents in cases in which the custodial parent received AFDC. The noncustodial parent who is subject to a reserved order should (and is required to under some orders) notify the agency of a change in financial conditions that would cause the reserved order to be modified to a fixed order.
Support-evasive life styles
Some noncustodial parents appear to live comfortable life styles without having a visible legal means of income. These parents drive new cars, live in upscale homes, wear expensive clothing and jewelry, but claim they have no income from which to pay child support. Some are engaged in illegal activities, and some live off the income or assets of someone else. The CSE agency can request the court to authorize an order of examination, a legal proceeding in which the noncustodial parent is required to answer the questions under oath of a CSE agency attorney regarding sources of income and assets.
Although not without some controversy, it is possible for a judge to order a noncustodial parent who lives off the income and assets of a girlfriend or boyfriend to set a child support order as if the noncustodial parent had income. If the boyfriend or girlfriend acknowledges that he or she supports the noncustodial parent and pays his or her living expenses and debts, the judge can order a child support amount based on the life style enjoyed by the noncustodial parent. The effect of such an order basically forces the new girlfriend or boyfriend to pay the child support obligation on behalf of the noncustodial parent, because the friend has assumed the responsibility to pay all of the other obligations incurred by the noncustodial parent. The friend's only recourse in this situation is to file his or her petition (in the nature of a declaratory relief action) with the court to be relieved of all financial responsibilities previously paid on behalf of the noncustodial parent. Such actions are very rare.
Some noncustodial parents often work "under the table" for cash, and many of them adopt nomadic life styles with no regular employment or fixed place of residence. Obtaining a child support order against these parents is difficult, and collecting is even harder. Their children never receive any support from them; taxpayers become the children's financial parents.
Judges are increasingly issuing "seek work" orders on noncustodial parents who are physically able to work but choose not to. Some judges set child support orders based on the minimum wage the noncustodial parent would earn should that parent become employed, on the theory that ordering payments might motivate these parents to obtain employment and support their children. The agency then must attempt to enforce the child support order and search on a regular basis for assets of the noncustodial parent.
Some states have empowered judges or administrative officers to order a noncustodial parent to attend job training, job placement, vocational rehabilitation, or other work-related programs in an effort to establish or enforce a child support order. Parents should contact their local CSE agencies for more information on the availability of such programs in their areas.
Society has decided that the first duty of a parent is the support of his or her children. A parent is free to make life style choices for which he or she can pay after having provided support for his or her children.
Noncustodial parents need not face financial ruin as the price of supporting their children. Most can pay child support on a regular basis while managing their other financial affairs. The parent who faces financial ruin is the noncustodial parent who runs from his or her obligation and ultimately owes large arrearages and reimbursements for welfare costs. Severe financial enforcement action awaits the child support miscreant.Excerpted from Child Support Survival Guide: How to Get Results Through Child Support Enforcement Agencies. Copyright 1997 by Bonnie M. White and L. Douglas Pipes. Published by arrangement with Career Press.
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