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An unfortunate fact of economic
life is that a family cannot live as cheaply divided as it can together. Thus,
after a divorce, the living standard of the entire family is often lowered and
the court often finds itself in the unenviable position of having to divide a
scarcity of resources. Then too, there is the problem of changing the child
support order to meet changing needs of children and enforcing court orders
against fathers and mothers who either refuse to make court ordered child
support payments or who cannot do so due to circumstances beyond their control.
These problems, when added to the issue of custody, visitation and the division
of property in a divorce , keep the family law courts of the country packed to
capacity.
Both parents have a legal duty to
support their child according to their ability to do so. Since 1990,
Pennsylvania has had child support guidelines in effect, which provide a formula
for calculating child support based on a proportion of each parent's gross
income. These guidelines are applied unless a party can show that application of
the guidelines would be unjust and inappropriate in a particular case. This
section discusses the issue of child support when viewed in the context of a
divorce or paternity action. Just as courts must often make the crucial decision
as to child custody and visitation, so too must it often determine how much
child support the noncustodial parent will be ordered to pay. This section will
describe the considerations that a court will take into account when deciding
the issue of child support, whether in a divorce or a paternity case. It will
also describe the methods by which child support orders are enforced by courts
and how to modify an order for support.
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During a marriage or committed
relationship, such issues are rarely a concern for the court. But when parents
divorce or cease to live together with their children as a family, the courts
are usually required to establish by decree the amount of child support a
non-custodial parent must pay. Like the issue of custody, this can be reached by
agreement or by fighting it out in front of a judge.
Child support payments, like alimony, may be incorporated into the divorce
judgment or may be provided for in a marital separation agreement. You can avoid
making child support a contested issue, and the legal expense of litigating this
issue before a Master or a Judge by both parents agreeing to the appropriate
amount of child support and making this agreement part of a marital separation
agreement.
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There are several parts to most
child support orders. First and foremost, the paying parent will almost always
be ordered to make a monthly money payment to the custodial parent.
[fn.6] The order
will typically read, in part, as follows:
Father (name) is ordered to
pay directly to mother (name) as and for child support of Tom and Mary, the sum
of $300 per month per child for a total of $600 , payable one-half on the first
and one half on the fifteenth day of each month, said payments to continue until
each such child shall die, reach majority, become emancipated or until further
order of court.
Notice the following about
this portion of the child support order:
It Requires a Direct Monetary
Payment to the Custodial Parent
Many paying parents resent the
child support order because it is made directly to the custodial parent and not
the children. Because of this, some refuse to make the payments because they see
it as a form of alimony. However, this is not true. The direct payments are to
be used to pay for the vital needs of the children, such as rent, food, and
clothes.
The Court Retains
Jurisdiction to Change the Order.
A child support order is not set
in concrete but is subject to change should future conditions warrant. Thus,
either parent may petition the court to raise or lower support should conditions
warrant (see below)
Payments Automatically
Terminate When the Child Reaches Majority, Dies or Becomes Emancipated.
The purpose of this language is
to provide for an automatic end to the support obligation when the child reaches
majority or dies. However, the issue of emancipation is often in dispute and may
require a court determination. Courts may order the parent paying child support
to continue making payments if the child enters college, but will generally not
do this if it will impose a hardship on the parents.
A child support order is as
enforceable as any other court judgment or decree. Thus, a parent who is not
paid child support can use each and every legal tool available to enforce the
order, including wage garnishments, wage assignments, contempt of court decrees
and the seizure of the nonpayor's property by writ of execution.
The child support decree is not
limited to an order of direct money payments to the custodial parent. Other
areas of providing for the children's needs are also usually addressed. The
following language is an example of a typical child support order:
As and for additional child
support, father (name) is ordered to maintain his children as beneficiaries on
his health and life insurance policies available through his employment. Father
is further ordered to pay for one-half of all uninsured medical, dental and
ophthalmologic services provided for the children
As and for additional child
support, father shall pay directly to the ABC Daycare Cooperative, the full cost
of afternoon after-school day care. However, should the children be enrolled in
morning day care, such expenses shall be the sole responsibility of the mother.
As and for additional child
support, father shall pay the round-trip plane and other reasonable costs of
transporting the children for visitation with father, as provided in the
visitation provisions of this order. However, during visits of two weeks or
more, the father's child support payments to mother shall be reduced by $50 per
month per child.
These clauses illustrate the
flexible nature of child support orders and the wide latitude a court has in
creating a support arrangement it deems in the best interests of the children.
(The court will try to maintain the lifestyle the children enjoyed before the
divorce if the parents' finances permit.) Thus, a parent can be ordered to
maintain insurance for the benefit of children, pay medical bills, private
school expenses, day care costs, transportation bills, music lessons and to pay
or partially pay for other aspects of a child's day-to-day life, activities and
upbringing. The amount of support can also be reduced should the noncustodial
parent have physical custody of the children for at least 35% of the time.
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Courts in Pennsylvania follow the
statutory support guidelines. Your Settlement Agreement will be reviewed by the
Court at the time of your divorce to make sure that it complies with the Child
Support Guidelines. The court will not let you bargain away your child's right
to child support. Generally, child support payments are for the ordinary
expenses of food, shelter, clothing, education and medication needs for the
children only. In determining an award of child support, a court will look at
all relevant facts upon the following issues:
The Needs of the Children.
For example, a sickly or
developmentally disabled child will often require a higher level of support than
a healthy child.
The Age of the Children.
Infants and younger children
often cost less to support than older children.
The Ability of the
Noncustodial Parent to Pay.
The court is limited in awarding
child support by the ability of a parent to pay based on income from all
sources, often including a new spouse's earnings.
The Earning Capacity of the
Custodial Parent.
Both parents have the duty to
support their children, not just the paying parent. Thus, the earnings or
earning capacity of the custodial parent which are available to provide support
for the children, and perhaps that of their new spouse, will also be considered
when determining child support levels.
The other lawful responsibilities
of both parents will also be looked into in determining child support. For
example, if the noncustodial parent is paying child support from a previous
marriage (a rather common occurrence), the court will take that obligation into
consideration. Necessities of life, such as rent and food will also be taken
into account by the court. However, the court will not reduce child support
payments to make it easier for the parent to pay discretionary obligations. For
example, a parent cannot provide for a charity or buy an expensive car at the
expense of providing for his or her own children.
To assist the court in
determining the proper amount of support, both parties will be required by the
court to prepare a financial declaration that is signed under penalty of
perjury. See financial forms). Each parent will be required to fully disclose
their income (from all sources frequently including money earned by a new spouse
or live-in-lover), the nature and extent of their property holdings such as bank
accounts, investments and real property and their financial obligations. The
court will rely heavily on these documents in making the order and thus it is in
the best interests of the children that the declarations be filled out
completely and honestly.
Child support hearings are often
adversarial. That means that when the parents cannot agree on the support order,
(sometimes after compelling mediation), the court, through a Master's hearing,
will hold a hearing to decide the issue. (This is sometimes done in a chambers
conference to save time.) At the hearing, each spouse (or their lawyer) will
have the opportunity to cross examine the other on issues relevant to the
support issue and each can subpoena documents and call witnesses to support his
or her position as to the amount of child support that should be paid. Child
support orders can also be appealed, although the likelihood of success is very
slim.
The reason for the implementation
of the Guidelines is that the Pennsylvania Legislature has decided that a parent
has a legal obligation to provide support for the child [in proportion to their
gross earnings].
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A court that does not have proper
jurisdiction (power) does not have the legal authority to order child
support. In order for a court to have jurisdiction to compel a parent to pay
child support, it must have personal jurisdiction over the parent.
Personal jurisdiction means that the parent from whom support is sought must
have sufficient contacts with the state in which the suit is brought.
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A State that Entered a Valid Support Order
Continues to Have the Power to Modify Child Support.
Once a valid child support order
is entered, that state continues to have the power to award child support even
though it no longer has contacts with the supporting parent or children.
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Parties frequently settle divorce
or paternity cases between themselves without going to trial. Parties may
include in their settlement agreement an amount of child support to be paid by
the non-custodial parent to the custodial parent. However, even when the parties
agree to an amount of child support the trial court is required under the
guidelines to determine the guideline amount, compare it with the amount of
support agreed upon by the parties, and not make an award less than the
guideline amount unless convinced that award of less is in the best interest of
the child.]
There can be no variance of the guideline amount if the court does not give its
reasoning on the record in accord with the requirements of the law.
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Hugh and Lucy divorced. In a
marital settlement agreement, they agreed that Lucy would have custody of the
children. However, Hugh would only agree to pay $50 per month in child support,
despite the fact he earned $2000 a month. Rather than fight Hugh, who had
threatened a custody fight if she would not accept the deal, Lucy agreed to the
low support level. When Lucy and Hugh brought their "agreement" before the
Master, the Master refused it because the support level was too low.
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Courts Can Order Payment of College
Expenses Even Though the Child Has Reached Majority.
At one time, majority was reached
at age 21. When it was reduced by law to age 18, a new problem was presented:
Could the court order a parent to pay for his or her children's college expenses
as child support, despite the fact that they would be over 18 when the payments
were made? In most states, that question has been answered in the affirmative -
if the parent has sufficient resources - although the courts are not required to
make such orders.
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Unlike alimony , payments of
child support cannot be deducted from the payer's income taxes. However, you pay
more than 50% of the actual costs of child support, you can claim the child as a
dependent to save money on taxes. Parents often agree on the issue of the
dependents deduction so that both don't make the claim which could trigger an
IRS audit.
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The court that makes the original
child support award is said to have continuing jurisdiction to modify the
order as conditions warrant. Provisions regarding child support, visitation and
custody within a Settlement Agreement are also subject to court modification
under certain circumstances. That being so, either parent may request the court
to change the order throughout the duration of the child's minority.
Modifications will not happen automatically. One of the parents must request the
change by a formal motion to the court.
Child support orders cannot be
changed on caprice or because a court thinks that "it is time." It must be based
on evidence proving that sufficient grounds exist to make the change. This
usually requires a showing of changed circumstances from the facts as
they existed at the time that the last order was entered. (In the many years a
child support order remains effective, the parent's circumstances may change
many times and thus so may the child support order.) In Pennsylvania,
appropriate circumstances means a substantial chance in income. Please note that
past child support obligations cannot be modified. Modifications are not
retroactive. Thus, if there is a change in circumstances it is very important
that the affected party petition for a change in child support as soon as the
substantial change has occurred.
Many different scenarios can
create changed circumstances. For example, if the paying parent has had a large
increase in income, the court can order the child support increased. Or, if the
child's needs grow, such as if the child becomes ill or disabled, the amount of
support can be ordered raised. Sometimes the mere passage of time creates the
changed circumstances. For example, as a child grows older, it becomes more
expensive to buy clothes, food and other necessities. These increased expenses
can be enough to justify a raise in the support order.
Support can also be reduced upon
a proper showing. For example, if the custodial parent inherits money, gets a
large raise or otherwise has an increased ability to support the children,
support payments may be reduced. Or, if the paying parent loses his or her job,
the court can be asked to reduce support during the period of unemployment.
A mistake many parents make is to
reach informal oral agreements modifying child support. This often provides the
seed for future discord. For example, the following scenario is very common:
Peter paid his former wife
Alice $400 a month to support their son. When Peter was laid off, he called
Alice and said, "I just got laid off. I can't afford to pay $400 right now."
Alice responded, "Okay. Pay $100 for now."
Ten months later, Peter was
rehired and raised his support payments back to $400. During his layoff, Peter
had made 10 payments of $100. Alice called and told Peter she expected him to
pay the $3000 he had not paid during the layoff. Peter replied that he did not
owe the money because they had agreed to the child support reduction during his
layoff. Alice disagreed. She claimed that she had not given up the right to $400
a month but had merely permitted Peter to defer full payment until he was
rehired.
When Peter refused to pay,
Alice took him to court. The judge ruled that the evidence did not support
Peter's claim that he was excused from $300 per month of his support during his
layoff and he was ordered to pay the $3000 to Alice at the rate of $100 a month,
in addition to the usual payments of monthly support.
The problem with oral agreements
is that they are often vaguely worded and the memories or understanding of the
parties may often differ. Thus, any agreement by parents to modify child support
should be put in writing so that there are no misunderstandings later on. It is
also a good idea to have a judge sign a court order based on the agreement.
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A major headache for custodial
parents, children and society is created when a parent refuses to pay his or her
court ordered child support. This is a serious problem of national dimensions. A
recent study found that less than half the parents awarded child support receive
payment in full. In 1989 alone, $4 billion dollars that was owed in child
support was not paid. This failure on the part of non-custodial parents -
usually but not always fathers - is a major cause of poverty in children. This
not only affects the families but has an indirect impact on the society who must
finance poverty programs to assist those in need.
In Pennsylvania, each county has
established a child support enforcement agency that can assist you in collecting
child support from your spouse. This agency has responsibility for collecting
child support for families receiving public assistance, and also, upon
application for non-public assistance families. Applicants for public assistance
in Pennsylvania must assign child support rights to the state and must help
locate the parent absent from the home. Failure to cooperate may result in the
denial of public assistance.
Services are available to
Non-public assistance parents by the payment of a non-refundable $20 fee. If you
are representing yourself, and you are not on public assistance, applying to the
child support agency in your county for assistance is an excellent method of
obtaining legal representation at minimal cost (payment of $20.00 fee).
The custodial parent has many
tools available to enforce child support orders, all of which should be
considered if payments are not being made:
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Nonpaying parents often hide from
the custodial parent in order to avoid their child support obligation, often
going so far as to move out of state to avoid their responsibilities. Such
abandonment has caused many parents to go on welfare.
In order to remedy this problem,
the federal government has created the Parent Locator Service, which
allows the resources of the federal government including the Social Security
Administration and the Internal Revenue Service, to be used to locate a
nonpaying parent's employer. Once found, the custodial parent or the state can
enforce the child support order and collect unpaid support. The law also permits
the IRS to pay child support arrears from tax refunds the nonpaying parent may
be owed by the government. (The law also requires the states to establish a
Parent Locator Services.) For more information on the Parent Locator Service,
contact the local office of the Department of Health and Human Services.
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Many states allow the court to
order an employer to make direct payments to the custodial parent from the wages
of the supporting parent. This procedure is known as a wage assignment. The wage
assignment can be issued upon proper application by the court and served on the
paying parent's employer. Once implemented, the employer will deduct child
support like any other deduction from the paying parent's paycheck and send the
money directly to the custodial parent. This is a very valuable tool - if the
nonpaying parent holds a steady job.
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Notwithstanding the methods of
securing a wage lien offered in the Pennsylvania Rules, the General Assembly has
passed laws to assist recipients of support to collect the funds due them from
spouses ordered to pay child support.
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Deviation From Support Guidelines
Deviation from the Child
Support Guidelines must be in writing. The courts use a variety of factors to
justify deviating from the child support guidelines. These factors are:
-
Unusual needs or unusual
fixed obligations.
-
Other support obligations of
the parties.
-
Ages of the children.
-
Assets of the parties.
-
Medical expenses not covered
by insurance.
-
Standard of living of parties
and their children.
-
Other relevant and
appropriate factors, including the best interests of the children.
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If a person willfully disobeys a
lawful child support order, he or she can be jailed for contempt of court. The
civil contempt action is brought by the custodial parent. The court clerk will
have the proper forms. After that, the nonpaying parent will have to be served
with process since he or she has the Constitutional right to appear at the
hearing and present a defense. If the nonpaying parent is served with process
and does not appear, the trial court will order a bench warrant issued for his
or her arrest.
If the court finds beyond a
reasonable doubt that the parent has willfully failed to pay pursuant to a valid
child support order, the court can order the nonpaying parent jailed. (A parent
who can show that they did not have the ability to pay will not be found in
contempt of court, even though he or she will continue to owe the money.)
Often, the mere threat of
jail is sufficient to pry open the recalcitrant parent's pocketbook. However, in
severe cases, parents will be jailed and often the jail sentence will be
open-ended, terminating only when the proper payment has been made.
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All states also have criminal
statutes on the books to punish parents who refuse to pay their child support.
If the custodial parent complains to the district attorney's office, it may seek
an indictment against the nonpaying parent in criminal court. If the defendant
is found guilty, he or she may be jailed. Or, the guilty parent may be put on
probation and allowed to remain free if he or she pays all back child support
and makes all future payments in a timely manner.
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