Divorce: Establishing Child Support FAQ

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  • How is support determined if both parents have the children for an equal amount of time?

  • A woman is claiming I'm the father of her child. She says she won't seek support if I pay her a lump sum. Will this work?

  • I was awarded custody of the kids. Shouldn't I have received the IRS exemption?

  • I'd like to keep the support obligation out of the courts by just paying the mother directly. Can I do this?

  • Can the court require me to pay my son's college tuition and expenses in addition to support, insurance and medical bills?

  • My husband works for a good friend of his. I know he's had his income reduced so his eventual child support payments won't be so high. Will it matter that his income has gone down?

  • My wife and I both have very large incomes and the support amount determined using our state's percentage system would be ridiculous. What will happen?

  • I just had a baby and I'm not married. My boyfriend isn't being very helpful. What legal options do I have?

  • My son's father filed chapter 7 bankruptcy and listed my childbirth expenses as a debt. Can these be discharged in bankruptcy?

  • I'm 17 and have an eight-month-old child. The father of my child is 17, has a job, and will be working full time over the summer. Can I get child support from him?

  • Am I obligated, through the court, to continue to pay support for my disabled daughter after she turns 18?

    Q: How is support determined if both parents have the children for an equal amount of time?

    A: This will depend on state law.

    Many states consider the incomes of both parents, and the time the children spend with each parent. In such states, the parent earning the larger income will likely owe the other parent a support amount, adjusted because of the time spent with that parent.

    Other states don't consider the amount of time that the children spend with each parent. In such states, the parent earning the larger income will likely owe a normal support amount.

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    Q: A woman is claiming I'm the father of her child. She says she won't seek support if I pay her a lump sum. Will this work?

    A: Probably not. The child support obligation is generally set by statutory guidelines, and is computed by figuring in the incomes of one or both parents. In some states, you can deviate from the guidelines as long as you and the child's mother agree. But the amount of child support you'll be required to pay can always be modified during the child's minority (until reaching the age of adulthood), depending on your incomes, the cost of living and other relevant factors. You may be able to come to an agreement on the amount of periodic child support that you'll pay now, but that figure can't be "fixed" for the entire period of time that you'll be required to pay support.

    A Michigan statute that allowed fathers to settle paternity suits by agreeing to a fixed amount of support was recently held unconstitutional. The court reasoned that child support is a right belonging to the child, not the parents, and is always modifiable.

    If the lump sum is supposed to waive her right to seek support, it won't be enforced, as that right belongs to the child. Additionally, if she receives government assistance, the government will come after you for reimbursement. If a woman is claiming you've fathered a child by her, it is best to consult with an attorney.

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    Q: I was awarded custody of the kids. Shouldn't I have received the IRS exemption?

    A:

    The exemption doesn't have to follow custody. Rules regarding the federal tax dependency exemption vary from state to state. In Ohio, for example, a court is required to review all pertinent income information to determine the overall impact of the dependency exemption. If one parent's income is high enough to trigger a phase-out of exemptions, it wouldn't make sense to award the exemption to that parent.

    In Ohio, at least one appeals court has ruled that if there are no net tax savings to be gained for awarding a noncustodial parent the exemption in alternating years, the trial court must award the exemption to the custodial parent.

    Other states don't allow the transfer of the dependency exemption under any circumstances. For example, the Supreme Court of Georgia has ruled that the transfer of the exemption would defeat the federal tax statute's objective of certainty in granting the exemption, and that allowing courts to arbitrarily transfer the exemption would burden the courts with having to make case-by-case determinations as to the exemptions.

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    Q: I'd like to keep the support obligation out of the courts by just paying the mother directly. Can I do this?

    A: As long as you keep her happy, yes. The largest potential problem is that in some states the mother can seek support that includes a retroactive support order. Most states allow support only from the filing of the petition, but some will go back before the petition. In such a case, you might not have been paying the correct amount, or the amounts you've been paying might be considered as gifts, rather than as support.

    If you decide to pay the mother directly, make sure you pay by check and keep the checks as evidence that you have paid.

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    Q: Can the court require me to pay my son's college tuition and expenses in addition to support, insurance and medical bills?

    A: State laws vary as to whether a court can order a parent to support a child beyond the age of majority (usually age 18) or when the child is attending an accredited high school full-time. In most states, a parent usually isn't responsible for college expenses. In other states, a judge can look at the educational levels of both parents and other children in the family, as well as financial capabilities and debts, in deciding whether a parent should pay a share of a child's college expenses.

    Even when a court doesn't require a parent to pay college expenses absent an agreement between the parents, such expenses may be taken into account by the court when considering whether or not to award alimony.

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    Q: My husband works for a good friend of his. I know he's had his income reduced so his eventual child support payments won't be so high. Will it matter that his income has gone down?

    A: The court will likely look at a number of factors, including his sudden decrease in income. Courts vary from one state to another as to what they will consider in calculating income for child support purposes. It's an attorney's job to make sure that the figures used in the child support calculations are accurate and truly represent the parties' incomes. For example, an Ohio court recently found that the two most recent years of the husband's income were not representative of his normal income as one of the years used was "substantially unrepresentative" of the husband's usual annual income. The court concluded that it was necessary to average the husband's income over a greater period of time.

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    Q: My wife and I both have very large incomes and the support amount determined using our state's percentage system would be ridiculous. What will happen?

    A: The law usually recognizes that a child only needs so much support. Most state systems have a special calculation when parental income is greater than a certain amount. Or the judge may have discretion to make an award which differs from the standard award based on parental incomes.

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    Q: I just had a baby and I'm not married. My boyfriend isn't being very helpful. What legal options do I have?

    A: You must have your boyfriend legally declared the father of your child in order to hold him responsible for support. This is accomplished through a paternity action. In some states, an action to establish paternity can be started with county support enforcement agencies. Your former boyfriend will have the opportunity to voluntarily acknowledge paternity or submit to genetic testing. If he refuses to acknowledge or submit to genetic testing, the case can then proceed to court, where the judge can order him to submit to genetic testing.

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    Q: My son's father filed Chapter 7 bankruptcy and listed my childbirth expenses as a debt. Can these be discharged in bankruptcy?

    A: Generally, child support can't be discharged in bankruptcy. The federal bankruptcy code states that debts in the nature of support that are to be paid to a spouse, former spouse or child aren't dischargeable. Several bankruptcy courts have ruled that birthing expenses to be paid to a debtor's child's mother, while not being paid to a spouse, former spouse or child, are still "in the nature of support" and can't be discharged. These courts have concluded that the amounts to be paid to the child's mother are debts actually owed to the child and that the nature of the debt is far more important than to whom the debt is to be paid.

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    Q: I'm 17 and have an eight-month-old child. The father of my child is also 17, has a job, and will be working full time over the summer. Can I get child support from him?

    A: In most states, parents are required to pay child support, regardless of their ages. In Arkansas, for example, a court ruled that the state's interest in requiring minor parents to support their children overrides the state's interest in shielding juveniles from burdensome obligations. Contact your state support agency to seek support from him.

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    Q: Am I obligated, through the court, to continue to pay support for my disabled daughter after she turns 18?

    A: In many states, parents are required to pay support beyond the age of majority for children who are mentally or physically challenged to the extent that they're unable to support themselves or make their own decisions. In these states, a court would most likely order you to pay child support for your daughter after she reaches 18 years of age.

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