Child Custody & Visitation
Family law cases are hard to define, especially in the case of a divorce and child custody. Many people who go through a divorce consider it to be a difficult and painful life transition. Child support is a critical issue that is always difficult to navigate through many situations to sort through.
x) How is child support calculated? How much child support will I have to pay? How much child support can I get?
Regardless of whether custody is sole or joint, or whether mom or dad is the domiciliary parent, both parents have a duty to provide financial support for their minor children. The total support due from both parents is generally based on the parents’ combined incomes, and on the cost of certain expenses for the children. The total support due is then divided between the parents based on their individual incomes. A parent with a larger income would be responsible for a larger share of that total support, while a parent with a lower income would be responsible for a smaller share of the total support. The domiciliary parent (the parent with whom the children primarily reside) will generally pay their share of support on day-to-day expenses while the non-domiciliary parent will give a check for his or her share to the domiciliary parent. In most cases, the non-domiciliary parent will pay support to the domiciliary parent, although there are exceptions.
x) Do I have to pay child support if I have the kids half the time? Do I get child support if my ex has the kids half the time? How does shared 50/50 custody affect child support?
If the parents are sharing custody equally (50%/50%) then child support may be calculated in a particular way that is quite different from the way it otherwise would be. For many people, this results in lower child support payments to the other parent and it could potentially result in no support being paid, or even the opposite parent paying child support. The increased day-to-day expenses of having the child half of the time, however, may counter-balance the reduction in or the receipt of child support. The effect of calculating child support in this manner is highly dependent on the facts of your case. If you are sharing custody or if either parent is seeking shared custody, you should consult an attorney as soon as possible to discuss how it may affect you.
x) What happens if my ex quits his job when I ask for child support? If my ex recently took a lower paying job, will that affect my child support?
If a parent quits his or her job, the court may find that he or she is “voluntarily unemployed.” If a parent takes a lower paying job, the court may find that he or she is “voluntarily underemployed.” If a parent is voluntarily unemployed or underemployed, the court can calculate child support based upon what that parent is capable of making based upon his or her education, training, and work history, rather than what he or she is actually making at the time. If that is the case, it will be up to the parent paying support to find a job, or a better paying job, or otherwise, figure out how to come up with the money to pay the full amount of child support due. If the parent is found to not be voluntarily unemployed or underemployed, then child support may be calculated using that parent’s current income.
If the parent is the domiciliary parent of a child of the parties (children from other relationships are not counted) then the court will not find that parent to be voluntarily unemployed or underemployed. Otherwise, the court will likely consider a variety of factors in determining whether he or she is voluntarily unemployed or underemployed such as: 1) whether or not the parent voluntarily quit or got fired due to his or her own fault, 2) whether or not the parent has any disability or impairment affecting his ability to be employed, 3) whether or not there are other factors outside the control of the parent affecting his or her ability to find employment, 4) whether or not the new job is in the same field of work as the previous job, 5) the size of the change in income, 6) whether or not the parent had a good reason to change jobs, 7) whether or not the new job has opportunities for advancement or to eventually make more money than at the previous job, and 8) any other relevant factors.
x) Can I get a reduction in child support if I got my hours cut? Will my child support be reduced because I lost my job?
Can I get an increase in support because my ex got a raise or a better job? Can I get more child support if my ex took a second job?
Will child support be modified if the children’s expenses change?
Child support may be modified if there has been a material change in circumstances. It may be reduced if a parent lost a job, lost overtime, lost bonuses, lost commission, or lost hours and his or her income has substantially decreased. It may be increased if a parent gets a raise including recurring bonuses or commission or gets a higher paying job. It may be possible to increase support in some circumstances when a parent takes a second job or regular overtime. Child support may also be modified if there has been a substantial change to certain expenses for the children such as daycare, after-school care, medical expenses not covered by insurance, private school tuition, or dancing lessons, piano lessons, sports, or other extracurricular activities.
x) What happens if I don’t pay child support? What can I do if I am not getting my child support? What should I do if my ex pays child support late or doesn’t pay all of it?
An order of child support must be obeyed. There are a variety of penalties available for the court to punish those who fail to pay child support as ordered. In addition to rendering a judgment in favor of the payee (the parent to whom support is due) and against the payor (the parent who is ordered to pay support) which can be collected on by garnishing wages, seizing and selling property, and intercepting tax refunds, the court may order the payor to pay all court costs and attorney’s fees of the payee in bringing the action to enforce the child support order, may suspend the payor’s driver’s license, hunting or fishing licenses, or occupational licenses, and may even sentence the payor to incarceration, as well as other potential penalties.
If your ex regularly fails to pay support on time or fails to pay the full amount due, you should consult with an attorney about bringing an action in court as soon as possible to resolve the matter. Waiting until later will not only increase your financial burdens now, but it may make collecting the amount due more difficult.
If you are having trouble with making child support payments on time or with paying the full amount due, you should consult with an attorney as soon as possible about whether or not a reduction in support may be available or what other options you may have. You CANNOT use an inability to pay support as a defense unless you have ___________________.
spousal support
x) Will I have to pay alimony? How much spousal support will I have to pay? Can I get alimony? How much spousal support can I get? Does it matter who was at fault?
There are two types of spousal support, formerly known as alimony. The first is “interim spousal support” or just “interim support.” Interim spousal support generally may be payable during the divorce process and for up to six months after the divorce is granted. For interim spousal support purposes, it is irrelevant whether someone cheated or is otherwise at fault for the divorce. Whether or not interim spousal support is owed is determined by the financial need of one spouse, typically but not always the wife, versus the ability of the other spouse, typically but not always the husband, to pay support. The court will likely look at the incomes of each party, the ability of each party to earn income, the expenses of each party, and the resources available to each party.
The second type of spousal support is called “final periodic spousal support” or simply “final support” which may be payable until a certain time set by the court if any, or until either party dies, or until the spouse receiving support gets remarried or begins living with a romantic partner “in the manner of married persons.” Unlike interim support, a party seeking final support must be free from fault in order to obtain it. It does not matter if the person who would be paying final spousal support was at fault or not, but only whether the person who would be receiving final spousal support is free from fault. Keep in mind, that for the purposes of final spousal support, the divorce does not necessarily have to be due to the “fault” of one spouse or the other. In some cases, neither spouse is considered “at fault” while in other cases, both husband and wife may be considered “at fault” even if one was more at fault than the other. If a spouse is free from fault, then they are eligible for support, however, that spouse must also be in need of financial support and the other spouse must have the financial ability to pay support. With final support, there are also maximum limits to the amount of support that may be paid.