Questions are frequently asked regarding the obligation of parents to pay
support for their children. This FAQ is intended as a general introduction to
the issues related to child support, including who is liable for support (and
under what circumstances), how support awards are arrived at, and enforcement
and modification of child-support awards. Because the law of child support is
governed by state, rather than federal, law, it varies from state to state. A
person who may have valuable rights affected by such laws should consult with
an attorney who specializes in such matters. This FAQ should not be construed
as legal advice, which can only be given by an attorney who is admitted to
practice in your state, to whom you pay a fee, and who in return undertakes to
protect your rights and to explain your responsibilities.
Who is liable for child support? Substantially all states have adopted the Uniform Support of Dependents Law.
Under that law, "[i]f possessed of sufficient means or able to earn such
means, either or both parents shall be required to pay for child support a fair
and reasonable sum as the court may determine." This means several things:
First, liability for support is imposed on both parents (whether or not the
children are born in wedlock). Second, the amount of support is fixed by a
court in an amount determined by the court to be "fair and reasonable,"
which suggests that fixation of child support can be an inexact science (with
the adoption of child support guidelines, the science has become a bit more
predictable; see How is child support calculated?).
Third, child support can be based not on the means "possessed" by a
parent but also on the means which the parent is "able to earn."
Child support consists of payments made toward the care, maintenance and
education of an unemancipated child under the age of
19 (subject to limited exceptions). Support payments may be made by either or both parents and can be provided
for by valid agreement or by a court order.
Non-parents are not liable for child support, except in extraordinary
circumstances. That means that the new spouse of a parent who is liable for
child support is generally not liable for his spouse's support obligation.
Return to top of page
How is child support calculated? The federal Family Support Act of 1988 requires every state to promulgate
numerical child support guidelines. The guidelines implement a federal
requirement demanding not only that guidelines be established, but that such
guidelines form the presumed standard when fixing the amount of child support.
This presumption in favor of a numeric computation of the support obligation is
rebuttable only by a showing that the guideline
figure would be "unjust or inappropriate," based on criteria
established by the state. The guidelines are designed to overcome three of the
persistent problems in the award of child support: insufficient levels of
support, inconsistency of criteria used by judges to fashion awards, and
inefficiency in the adjudication of child support. The formula attempts to
balance the child's needs and the parents' ability to provide for those needs
when the family is split and living in two households.
In Connecticut and most other states, the basic child support obligation is
calculated by combining the incomes of the parents and multiplying that figure
by the percentages set forth in the guidelines. These percentages vary
according to the number of children. This number, the total child support
obligation due, is then assigned to the parents according to the proportion of
their individual contributions to the parents' total income. The noncustodial parent pays a pro rata share to the custodial
parent. For example, in Connecticut, the guidelines percentages are
applied to take-home pay and are approximately 25% for one child, 37% for two
children, 45% for three children, 49% for four children and 53% for five
children. The guidelines percentages in New York are applied to gross income
(less some generally small deductions) and are: 17% percent for one child; 25%
for two children; 29% for three children; 31% for four and no less than 35% for
five or more children. The computation under the laws of most other
states results in substantially similar dollar amounts of support. California's
formula is the most complicated and is generally applied using a computer
program.
In addition to the guidelines amount, a court may be authorized or required
to award additional sums for a) child-care expenses for employed parents or
those furthering their education; b) maintenance of
health and life insurance, or reimbursement of health-care expenses, for the
benefit of the children; c) private school and college tuition; and d)
child-care expenses for parents seeking work. Click here to see Connecticut's detailed child support guidelines (in .pdf format). A Connecticut court may, in its discretion, order one or both parents to contribute to higher education expenses for an emancipated child. With the exception of educational expenses and very limited other exceptions, a court cannot order post-majority support.
Return to top of page
When can the court deviate from the guidelines? Courts have broad discretion to deviate from the guidelines when
appropriate. Some of the factors courts may, and do, consider, are: 1) the
educational needs of either parent; 2) the needs of the children presently
supported by the noncustodial parent who are not
subject to the current support action and whose support has not been deducted
from the determination of the noncustodial parent's
income; 3) extraordinary expenses incurred by the noncustodial
parent in exercising visitation rights. The guidelines are often applied in an
adjusted manner in the case of shared or "split" custody
arrangements. Courts may also consider any other factor they deem relevant. For
that reason, it is impossible to predict the exact amount of support a court
may order. In the vast majority of cases, however, the guidelines are not
deviated from.
Return to top of page
What income is included in the computation? In the vast majority of cases, child support is awarded based on reported
wages of the payor, as demonstrated by income tax
returns. However, to avoid injustice, a court may also include in the
"base" to which the guidelines are applied certain forms of
"imputed" income. Middle- and upper-class parents who wish to limit
the amounts contributed to their children's support have a variety of ways to
lower their IRS reportable income. This "emptying of pockets" may
take several forms: parents may invest capital in non-income-producing assets,
transfer income to others, reduce the amount of income earned, and, where
self-employed, pay themselves less while at the same time compensating
themselves in the form of amenities available through their closely-held
corporations. Courts are generally empowered to impute income from various
sources including, but not limited to: a) non-income-producing assets; b) perquisites provided as compensation for employment to
the extent that such perquisites constitute expenditures for personal use; c)
fringe benefits provided as compensation for employment; and d) money, goods,
or services provided by relatives or friends. In addition, income can also
include an amount imputed as income based upon the parent's former resources or
income, if the court determines that a parent has reduced resources or income
in order to reduce or avoid the parent's obligation for child support. This
kind of "imputation" would be applied when the payor
spouse refuses to work or deliberately takes a pay cut.
Under some circumstances, the income from a payor
parent's spouse (i.e., the supported child's stepparent) may be deemed to be
"available" to the payor for purposes of
determining child support obligations. This is likely to occur when, for
example, a payor mother has become a housewife in a
new marriage and left her old job. As noted above, non-parents are generally
not themselves liable for support, however.
Return to top of page
What court procedures are used to make a support
determination? As noted above, the right to support is not dependent on the marital status
of the parties. Thus, support may be awarded during or after a marriage, in a
divorce proceeding, or in a separate support proceeding whether or not the
parties have ever been married. The proceeding is usually relatively simple,
because the issues are generally limited to the application of guidelines
percentages to the payor's income. A typical
support-only hearing may be concluded in a few minutes. At the conclusion of
the hearing, the court orders the payor to pay
support on a regular basis. In most states, the court will order that the
amount be deducted from the payor's wages by his
employer and transmitted automatically to the recipient.
Return to top of page
Help! I have an order for support, but he/she still won't pay!
Getting a child support order isn't the final step in the process. In many
cases, it barely seems to be even the first step in the struggle to collect the
child support your child is entitled to receive.
There are many enforcement devices available in most states. These include
income execution (deducting money from the payor
parent's wages), making a negative report to credit reporting agencies,
collecting past-due child support from lottery prizes won by the payor parent, intercepting tax refunds due the payor parent from state and federal income tax authorities,
property executions (using legal procedures to seize property the payor parent owns, such as real estate and bank accounts),
medical support enforcement (where the employer is required to deduct health
insurance premiums from the payor parent's wages
similar to an income execution), obtaining a court order directing that the payor parent post a cash deposit to secure payment of
support, obtaining a court order placing the defaulting parent on probation
and, usually where other methods have all failed, obtaining a court order sentencing
the defaulting parent to serve jail time. In some states, many of these devices
are automatically put into place when the payor
parent defaults on the child support obligation if the support is supposed to
be paid through a child support enforcement agency.
For most custodial parents, if there is any difficulty in collecting
support, it is worthwhile applying for support enforcement services at the
local child support enforcement agency (call them and ask them how as the
procedure varies from state to state). It is usually recommended that the
custodial parent have the support paid through the support enforcement agency
even if no problems are anticipated as most support enforcement services take
care of the necessary recordkeeping, provide a neutral third party to report to
the Court concerning any collection problems, send reminders to the payor parent, send out income executions and automatically
undertake many of the enforcement methods without cost to the custodial parent
in the event the payor parent does not pay support.
However, sometimes the services of the support enforcement agency are not
sufficient to collect the support due your child. If that happens, it usually
is necessary to seek the assistance of the court in collecting the support. That
is done by filing a motion or petition alleging that the payor
parent has failed to pay support and asking the court to assist in the
collection of support. In most jurisdictions, the support enforcement agency
will help you file such a petition.
However, it is often necessary to consult with an attorney about such a
proceeding, because invoking some court powers may not be wise (e.g., if the payor parent usually pays support but is a little behind in
payments, it might be unwise to seek incarceration if incarceration would cause
the payor parent to lose his or her job and thus be
unable to pay support in the future). Talking about such issues with an
attorney prior to filing a petition with the court will help you be sure you
know the rules in your state and have considered the costs and benefits of the
procedure in question.
Return to top of page
How do I locate a missing parent so I can enforce
a child support order? Many states have a parent locator service. Call your state's support
enforcement agency and ask about the parent locator service. If they are not
able to help you, you can often locate a missing parent if you know what state
he or she resides in simply by asking for a search of the motor vehicle records
for that state. In New York, for example, you can fill out a simple form
indicating the payor parent's name and birth date and
pay a $5 fee and get back a record from the Department of Motor Vehicles
setting forth the driver's name, address, description and driving record. If
you have a computer, you can purchase one of the software packages with
nation-wide telephone and address listings and search for the payor parent by name. Also, don't forget the simple method
of simply calling information (555-1212) for the area where you last knew the payor parent to reside; many, many "missing"
persons have been found that way! Also, don't forget to ask friends or
relatives of the payor parent, since many people will
give up information about a missing parent because the missing parent has
failed to pay child support. If all else fails, a private detective can be
asked to conduct a search. Often, they can quickly and fairly cheaply locate a
person simply using computer searches. However, private investigation can get
expensive, and it is wise to be very clear with yourself and your private
investigator with respect to how much money you are willing to spend on
locating the other parent.
Return to top of page
How do I collect if the payor
parent lives in a different state? All states (including Connecticut, effective January 1, 1998) have adopted
the Uniform Interstate Family Support Act ("UIFSA"), a statute
providing for interstate collection of child support. This Act sets up the
method for enforcement of support orders where the parties live in different
states. Essentially, the party seeking enforcement files a petition in his or
her home state. That petition is transmitted to the payor
parent's home state and he or she is brought into the court of that state.
Usually the custodial parent in a UIFSA proceeding is represented by an
attorney who works for a government agency in the payor
parent's home state. If you wish to file a UIFSA petition, you should be able
to obtain the assistance you need to file the petition and get an attorney
appointed to represent you in the other parent's state by contacting your local
child support enforcement agency. UIFSA proceedings are often very
time-consuming and frustrating. In many cases, the custodial parent is better
served hiring an attorney to file a petition in either the custodial parent or payor parent's state (depending upon jurisdictional
requirements) directly rather than through the UIFSA procedures. Prior to
filing a UIFSA petition, the custodial parent should usually consult with an
attorney in his or her home state to discuss whether filing a UIFSA petition is
the best method for collecting support under the circumstances of the case.
Return to top of page
Help! I cannot afford to pay the support I owe! If you are the payor parent who is faced
with an order directing payment of child support that is more than you can pay,
don't just ignore the problem!!! Often, circumstances have changed
since the support order was first made (e.g., the payor
parent has been laid off or has become disabled, or a child has become
emancipated or has come to live with the payor
parent). If circumstances have changed, it is often possible to get the support
order lowered to a more manageable level. In some areas, if you receive Social
Security payments and your child receives Social Security payments (paid to the
custodial parent), the Court might determine that the payment of Social
Security to the custodial parent satisfies the child support obligation. To
obtain the benefit of these rules, it is almost always necessary to go back to
court and get the present order modified. This is where a few dollars spent on
seeing an attorney can be invaluable. There are cases where a payor parent suddenly discovers that thousands of dollars
have become due because he or she did not timely seek modification of the order
when the circumstances changed. Usually, the modification of the order is
effective after the date you apply for modification. Thus, if you wait a few
years after the circumstances change, you may find that you still owe all
past-due support which might have been had you acted quickly.
Return to top of page
Can I transfer assets to my mother, father or spouse
so that they cannot be taken for the child support I owe? Transfers of assets to avoid payment of child support can often be set aside
by a court. Furthermore, if the court determines that you transferred away
resources to avoid your child support obligation, that could form the basis for
a finding of willful violation of a court order and result in a jail sentence.
Return to top of page
Can my spouse's wages or assets be taken to
satisfy a child support obligation I owe? Generally a person is only liable for the support of his or her own
biological children, for the support of adopted children or for children
otherwise legally agreed to be supported by him or her. If you voluntarily
reduce your income or transfer assets or income to your spouse, the assets of
your spouse may be deemed to be available to you for purposes of determination
of your own support obligation. However, before liability will be imposed on a
non-parent spouse, court proceedings are required to show unusual circumstances
rendering that person liable.
Return to top of page
If the payor goes to jail for
non-payment of child support does the support still have to be paid? Yes. In many jurisdictions, the payor parent is given
a period of time to pay the support before the period of incarceration begins.
If the support is paid within that period of time, the jail sentence will not
have to be served. However, if the payor parent does
spend time in jail due to a failure to pay support, it usually will not
discharge the support obligation. He or she will still owe the money. In some
jurisdictions, however, collection of support might be stayed during the period
of incarceration. As a practical matter, it seems unlikely that support can be
collected from someone while he or she is in jail.
Return to top of page
Having a lawyer is always a good idea. However, many people feel they cannot
afford a private attorney. Child support disputes are sometimes complex and
often depend on factors that a layman would not consider. Moreover, the
parent's closeness to the subject matter makes an objective presentation of
evidence nearly impossible. If you cannot afford a lawyer, often there are resources
available to you at state expense. Check with your local Legal Services
Corporation unit, Legal Aid Society or the court clerk. There are many state
agencies that assist recipients of child support in obtaining support orders
and collecting the amounts due.
Because the law of child support varies from state to state, a person who
may have valuable rights affected by such laws should consult with an attorney
who specializes in such matters. The foregoing should not be construed as legal
advice, which can only be given by an attorney who is admitted to practice in
your state, to whom you pay a fee, and who in return undertakes to protect your
rights and to explain your responsibilities.
Return to top of page
Return to Connecticut
Divorce Home Page
|
