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Child Support

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Do I need a lawyer?

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.

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