Child Support Law
Parents often find the experience of raising a child to be joyful and deeply rewarding. It also can be very expensive. Parents who do not regularly live with their children and who do not act as their children's primary caregiver must help pay for their care and support. The amount of child support typically depends on how much money each parent earns and how much time each parent spends with the child. The gender of the parent makes no difference in who pays or receives child support. Contrary to stereotypes, a court may require the mother to pay child support to the father, particularly when the mother is the higher wage earner and the father has primary custody of the child.
While guidelines for calculating child support vary from state to state, there are a handful of key factors that you can expect a court to take into account in most cases. These include the needs of the child as well as the child’s standard of living while the parents were together. Also important to courts are the income and needs of the parent who is living with the child for the majority of the time, and the ability of the other parent to pay. You should know that the ability to pay is measured by earning capacity rather than actual income.
Balancing all of these factors and others is a difficult task that can lead to many different results. If you are not satisfied with a court’s child support decision, you can try to change it. There are two ways to change a child support order. First, you can approach your child’s other parent and ask to modify the terms of the order. If the other parent accepts, you can seek the approval of a judge to enforce it. Alternately, if the other parent refuses, you can pursue a hearing in court at which you will need to show a change of circumstances. This may consist of job loss, an increase in the cost of living, the onset of a disability or serious illness, or a change in the child’s needs.
Child support will continue until the child becomes an adult, goes on military duty, becomes self-supporting, or is adopted by a new parent. In some cases, children who have special needs may need to keep receiving child support after they reach adulthood.
If you need financial assistance to support your child, you should not hesitate to ask the court for it. An order for child support will go into effect only from the date when you requested it. The court will not order your spouse to reimburse you for costs incurred prior to your request.
Enforcing a Child Support Order
All courts take very seriously a parent’s obligation to support a child. If a parent refuses to pay child support, the district attorney often will pursue the parent to set up a payment schedule and warn them that jail time could result if they refuse to cooperate. In reality, imposing jail time on a parent is a last resort after other penalties prove ineffective. These could include attaching wages, seizing property, taking away a driver’s license, or applying tax refunds to cover the amount owed. Even if the parent has moved to a different state, courts in that state will help enforce a child support order.
A child support debt almost always stays with you until you pay it, even if you file for bankruptcy. Courts may adjust a child support amount for future payments, but they are very reluctant to adjust for past, overdue payments. Also, they often require a parent to pay any child support debt before granting future adjustments. If you start struggling with financial problems, you should immediately inform the court and seek a modification of the child support amount before falling deeper into debt. Courts typically grant only a temporary adjustment, and will restore the initial amount when your situation improves.
Establishing Your Child’s Paternity
Whether or not the parents were ever married makes no difference in deciding whether a parent needs to pay child support, nor does the behavior of one parent in keeping the other parent away from the child. Instead, the issue that matters in deciding child support is simply whether a certain adult is the child’s parent. This may make paternity tests critical when a father refuses to acknowledge a child. Fortunately, blood and DNA tests can be ordered by a court and are nearly 100 percent accurate in determining paternity.
Many states have identified situations in which a man is presumed to be the father of a child. The most common situation giving rise to a presumption of paternity is when a man was married to the mother at the time when the child was conceived or born, or when the man’s name is on the child’s birth certificate. In many states, such as California, it is very difficult to rebut this “conclusive” presumption of paternity. In California, the husband of a mother may overcome the presumption of paternity only if he proves by blood tests within two years of the child’s birth that the child is not his own. Agreements to support the child or acting in public as the child’s father also may create a presumption of paternity. Any presumed father must pay child support, just as an acknowledged father would.
Some states recently have given rights to “equitable parents,” who have a close emotional bond with a child but no biological relationship. Courts may give custody or visitation rights to this type of parent, which means that the parent also may be required to pay child support.
In most cases, however, a biological or legal relationship must be established for a parent to pay child support. This means that someone who gets a woman pregnant but never marries her may be required to pay child support, while a stepparent does not need to pay child support unless he or she adopts the child.
Tax Implications of Child Support
A parent paying child support may not claim a tax deduction, as the same person could when paying alimony. This means that you need to make sure that the appropriate amounts are characterized correctly in any support agreement involving a former spouse and child. For tax purposes, the government may deem any payment to be spousal support unless the parents specifically identified them as “child support.” A vague term such as “family support” will be considered spousal support.
Married parents living together always claim their children as dependents without a second thought. When parents divorce, however, only one parent can claim a child as a dependent. The IRS rigorously enforces this rule, so you should not be tempted to ignore it. The parent who has provided more than half of the child’s support usually claims the benefit of the dependent exemption, unless that parent agrees to give the exemption to the other parent. If the parents divide support and time with the child exactly in half, a complex set of rules applies. An experienced attorney can review your individual situation and discuss the tax implications of your child support arrangements.
