“Long arm” statute:
Deciding which parent retains custody of the child is only one part of the puzzle. After the parents have divorced or separated, each parent has a continuing obligation to financially support minor children. As with child custody decisions, courts take into account all of the relevant factors, including:
- The financial resources of the child;
- The financial resources of the custodial parent;
- The standard of living previously enjoyed by the child;
- The physical and emotional condition of the child;
- The child’s education needs; and
- The financial resources and needs of the non-custodial parent.
Often, there are disputes as to how much each parent should be required to pay for the child’s support.
Generally, a child support order is issued against the non-custodial parent to contribute to the support of the child. In a shared custody situation, the court will generally order the higher-earning spouse to make a payment to the lower-earning one.
The amount of support is determined by the needs of the child and the non-custodial parent’s ability to pay. If the child has her own income, such as from a trust fund, the court might take these funds into consideration for expensive discretionary items (e.g., private school education and travel). Yet, the non-custodial parent would still have an obligation to pay for the basic needs of the child.
EXAMPLE: Trey’s parents were divorced last year. His mother, Ingrid, was awarded primary custody and his father, Gerald, was ordered to pay $1,500 per month in child support. In addition, Trey receives $1,000 per month from a trust fund established by his paternal grandfather. The trust fund was established to pay for Trey’s private school education. When the court determined the $1,500 child support amount, it did not take into account the trust fund amount because it was allocated to a discretionary expense. Despite this supplemental income, Gerald still had an obligation to provide for Trey’s basic needs.
The parent cannot forgo a more lucrative position in the hopes of reducing the child support order. Rather, when the court computes the amount that the non-custodial parent must pay, the judge considers what that parent could reasonably earn on the job market, not merely what that parent does, in fact, earn.
EXAMPLE: Jose and Josephine divorce. They have two children. Jose earns $25,000 per year and Josephine earns $250 per week at her part-time job. Several years later, Jose’s income has increased to $50,000 per year; Josephine still only earns $250 per week part-time, although she has a graduate degree and could earn $60,000 if she worked full-time in her field. In deciding whether to increase Josephine’s child support due to Jose’s increased earnings, the court would first determine how much Josephine could reasonably earn, not merely what she is currently earning. See, e.g., Commonwealth ex rel. Kaplan v. Kaplan, 344 A.2d 578 ( Pa. 1975). After that determination, each party would be required to contribute his or her proportionate share toward supporting their children.
Although judges have discretion in awarding child support, there is a federal law which requires each state to maintain non-binding “child support guidelines.” These guidelines specify a precise method for computing the amount of child support that the court should order. See 42 U.S.C. § 667.
The approach most states have adopted is the “income shares” method. This method uses: (1) the combined income of the two parents; and (2) the estimated cost of caring for a child—increasing the amount with the addition of other children. After computing the cost of the child’s care for a family of a particular size and a particular combined income, the judge then splits the amount owed in proportion to the incomes of the two parents. The non-custodial parent writes a check to the custodial parent.
For example, New York has the following child support percentages (of the combined parental income—up to $80,000):
- One child—17%
- Two children—25%
- Three children—29%
- Four children—31%
- Five children—no less than 35%
See N.Y. Dom Rel. Law § 240.
EXAMPLE: Melissa earns $2,500 per month—40% of the total. Her ex-husband, Jeff, earns $3,700 per month (60% of the total), resulting in a combined parental income of $6,200 per month. They have two minor children. Melissa is the custodial parent. If we chart each party’s support requirements, the result is:
Since Jeff is the non-custodial parent, he would send a $930 check to Melissa on a monthly basis. It is assumed that Melissa’ custodial support is worth $620 per month.
Ordinarily, the support obligation ends when the child reaches the age of majority—usually at age 18. Some states may extend this obligation beyond age 18 in certain circumstances, such as when the child is mentally or physically unable to support himself. See, e.g., Elkins v. Elkins, 553 S.W.2d 34 (Ark. 1977).
With today’s high incidence of blended families, the biological parent may not be the only parent with support obligations. Once a stepparent voluntarily agrees to provide support for a non-biological child in his care during the marriage, he is then equitably estopped from denying the obligation to continue support payments after the divorce. See, e.g., M.H.B v. H.T.B., 100 N.J. 567 (1985).
The same standard applies to modifying a support order as with child custody modifications. Specifically, there must be a substantial change in the circumstances to allow a support modification. Further, many states only allow a petition for modification after a set time period has past, generally six months to one year.
EXAMPLE: Jennifer and Arthur entered into a separation agreement while they still lived in New York. The agreement required Arthur to pay $150 per month in child support and contribute to an insurance endowment policy to be used for their daughter’s college education in 15 years. Afterwards, Jennifer and their daughter moved to California, where the final divorce decree was issued. The decree made no provision for child support and the New York agreement was not incorporated into the divorce decree. When it was time for their daughter to attend college, she chose Yale. The endowment did not contain enough money to pay for her educational choice; therefore, Jennifer petitioned the court for an increase in child support. The court held for Arthur, reasoning that at the time the agreement was executed, the appropriate support amounts were determined at the time. Furthermore, absent a showing of an unforeseen change in circumstances, there was no reason to modify the agreement. See, e.g., Boden v. Boden, 397 N.Y.S.2d 701 (1977).
Jurisdiction over Child Support Orders
Whether a state may exercise jurisdiction over a nonresident spouse in a child support matter depends on the contacts of the nonresident spouse with the forum state. The test used is the same one previously discussed for child custody: whether there is sufficient contact with the state to make it fair and reasonable for the court to adjudicate the claim against the nonresident.
EXAMPLE: Tammy and Bob were residents of South Carolina when they executed a separation agreement. Afterwards, Tammy moved to California, where her family lives. Under the agreement, their son (Ashton) is to live with Bob for the nine-month school year; during the summer he is to live with Tammy. The agreement also provides for child support while their son lives with Tammy. Subsequently, Tammy obtains a divorce which incorporates the terms of the separation agreement. Thereafter, Ashton wants to reverse the arrangement—live with his mother during the school year and his father during the summer. Tammy then brings an action against Bob in California to increase his child support. He moves to quash based on lack of personal jurisdiction. The court holds for Bob because he has insufficient purposeful contacts to provide a constitutional basis (Due Process Clause of the Fourteenth Amendment) for exercise of personal jurisdiction over him in California. See, e.g., Kulko v. Superior Court of California, 436 U.S. 84 (1978).
Enforcement of Child Support Orders
For the custodial parent, obtaining a court order awarding child support does not guarantee that the custodial parent will ever receive the payments. The Federal Office of Child Support in the Preliminary Statistics for 2005 reports that over $100 billion in accumulated unpaid support (up from $88 billion in 2001) is due to almost 20 million children in the United States. Collection on current support payments has significantly improved and the government child support agency collection rate has been on a steady increase since 2010, in part due to an increase in payroll-based withholding of the payor. Total support collections were over $31.6 billion in 2012.
There are various reasons why it is difficult to collect the required payments. Relocation of one of the parents to another state is a common problem. As with child custody and support, getting personal jurisdiction over the parent can be a challenge. Also, the whereabouts of the parent may be unknown. Furthermore, given the backlog of cases in the court system, there could be a considerable delay before the matter even gets a hearing.
Although states are constitutionally required to give full faith and credit to another state’s valid and final judgments, this mandate did not apply to child support orders because they were subject to future modification and therefore not final. In 1994, Congress enacted legislation to close this gap by passing the Full Faith and Credit of Child Support Orders Act. See 28 U.S.C. § 1738B.
Furthermore, where the two parents live in different states, the custodial parent’s burden of collecting support was made easier by two uniform statutes:
- Uniform Reciprocal Enforcement of Support Act (“URESA”) (1950)
- (Revised) Uniform Reciprocal Enforcement of Support Act (“RURESA”) (1968)
By 1992, all 50 states had enacted URESA or RURESA. URESA permitted an action for child support to be initiated in the state where the child resided, but litigated in the jurisdiction where the obligor lived. In addition, it provided that each state which adopted it could enforce another state’s support order without registration.
Recently, URESA and RURESA have been replaced (effective 1/1/98) by a new federal uniform act—Uniform Interstate Family Support Act (“UIFSA”)—a part of the Welfare Reform Act of 1997. All fifty states, most territories and the District of Columbia have adopted UIFSA.
Probably one of the most important provisions of UIFSA is the adoption now in all 50 states of the same “Federal Wage” assignment form, beginning in July 2000. Due to uniformity of design, employers will have to honor them, regardless of the originating jurisdiction. If an employer chooses to ignore the order, then the employer would be subject to federal court jurisdiction and some severe penalties.
UIFSA is also the way that the State Department gets to suspend a delinquent parent’s passport if she owes any past due child support. Prior to January 2001, the rule required an arrearage of $5,000 before generating any State Department action. Unfortunately, UIFSA does not provide for any federal court intervention if more than one state reports the parent is delinquent in child support payments. The parent must settle the matter with each state separately.
Another common penalty for failure to pay child support is interception of the delinquent parent’s state and federal tax refunds. In addition, a lien for the past due amounts might be entered against any real and personal property owned by the parent.
The Child Support Recovery Act provides for criminal penalties for failure to pay child support. See 18 U.S.C. § 228. Specifically,
Any person who—
shall be punished as provided in subsection (c).
- willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000;
- travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or
- willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000;
See 18 U.S.C. § 228(a).
The punishment depends on the number of prior offenses.
- in the case of a first offense under subsection (a)(1), a fine under this title, imprisonment for not more than six months, or both; and
- in the case of an offense under paragraph (2) or (3) of subsection (a), or a second or subsequent offense under subsection (a)(1), a fine under this title, imprisonment for not more than two years, or both.
See 18 U.S.C. § 228(c).