Perhaps you are considering a divorce. Some scary thoughts might enter your head:
- How often will I get to see my children?
- How will I pay my bills?
- Will I get child support?
- Would I be entitled to alimony? Would I have to pay alimony?
- How could I ever afford to pay child support and alimony and still move forward with my life?
These are some of the first questions we get during our consultations. Understandably, a divorce is a life changing decision and not knowing what your financial status will look like can be terrifying. After all, you’ve worked hard to get to your current salary, right? Or perhaps you have given up your career to stay home and care for the children. What will you do now?
This blog is the first in a series to help you understand the basics of a dissolution of marriage. Outlined below are some basic facts and frequently asked questions regarding child support. If you have further questions feel free to post in the comment section or schedule a consultation at our office.
Most clients want a simple divorce and do not want the court to force them to do anything. Coming up with your own agreement and settling before reaching your trial date is the best way to make this happen. If you cannot settle on an agreement the Judge will make the decisions for you at trial. Most divorces settle for this exact reason.
You may settle at any time from the start of interaction with your attorney up until trial. The courts actually want you to settle and mandate (or highly recommend depending on the county) every divorce proceeding go to Mediation. Mediation is just a fancy name for an official day (or a few hours) that is set aside to meet and discuss potential settlement options with the other party (and his or her attorney), a certified mediator, and your attorney (if you have one). Hopefully, by the end of Mediation, you will walk away with a signed agreement. But again, you may settle any time prior to, at, or even after Mediation.
If the parties cannot settle at Mediation, or any time before or after, the case will move forward to trial. At trial both sides will present their testimony regarding what they believe is in the best interests of the children. Both parties will submit more financial information and the Judge will determine the amount of child support, alimony, and all the details regarding the timesharing and upbringing of your children. To prepare for trial your attorney will be required to spend more hours working on your case and attending trial, which means your total attorney’s fees cost will increase. You may also be very disappointed with the Judge’s decision. Sometimes trials are necessary and the best route for resolution. Each case is different and your attorney will be able to help direct you to the most beneficial and efficient road to resolve.
More about the Settlement Agreement
The Settlement Agreement is prepared based on the wants and needs of the parties. It will include the equitable distribution of all property (real property, bank accounts, retirement accounts, debts like student loans, car loans, etc.). It will also include alimony, if any, decided on by the parties.
If you have children, it will also include a timesharing schedule, child support amounts, and all the other details important to the upbringing of your children. Although the parties have discretion to make their own decisions regarding child support, the court will not approve a party opting-out of child support without specific circumstances.
Types of Divorce
The most basic type of divorce is uncontested. This means the parties will be able to mutually agree on a settlement, or more basically a contract, by working together to reach an agreement before the divorce is even filed with the courts. During an uncontested divorce, each party fills out a financial affidavit with their basic monthly earnings and costs. This is usually the only financial information collected in a truly uncontested divorce, so it is important parties trust one another and are honest with their affidavit. If there is any dispute on the financials or any term the parties will not agree upon, the type of divorce becomes contested.
A contested divorce means there are questions of fact. Classifying your case as a contested divorce does not mean it will go to trial or the parties will not settle. More basically it means the parties disagree on some terms and may need more discovery or more negotiation/other alternatives regarding children, for example.
Unfortunately, the label, “contested divorce” seems to have a bad connotation. In fact, being part of a contested divorce just means that you and your spouse have not agreed on all aspects of equitable distribution, alimony (if applicable) and the parenting plan of any children (if applicable). In a way, it can actually be the smarter decision for couples who have many assets or have been married for a long time. Clients who are part of a contested divorce will never have to wonder whether they missed out on their share of the marriage assets.
Child Support is determined by the Child Support Guidelines, a mathematical calculation based off the combined incomes of the parties. After the total support for the children is calculated, it is divided proportionally to each parent dependent on their income or earning capacity. This often results in one parent owing a monthly obligation to the other.
It should be noted that even an unemployed spouse will not have a zero dollar income in a child support calculation. As long as the spouse is not disabled, the spouse is imputed to be able to earn at least minimum wage at 40 hours per week. If the spouse has a degree or had a career prior to choosing to stay at home, the presumption of income may be higher.
Interestingly enough, paying alimony to your spouse is included as “income” for child support purposes. So the more alimony a spouse receives means the child support requirement will decrease because the proportions of income are becoming more even.
Additionally, the amount of overnights plays a big role in the amount of child support that will be paid. If parents split time 50/50 then child support decreases. Understandably, when the child is with each parent then that parent assumes financial responsibility for the child and therefore does not need to pay the other parent for that time.
The purpose of child support is to provide for the children. We like to explain to our clients that child support is like a pie. It includes the cost of daycare and health insurance, as well as a basic daily amount for basic living expenses. We put all of these expenses into the entire pie of support needed. Then that pie is divided proportionally depending on the timesharing schedule and incomes of the parties.
So in sum, child support is calculated by:
- Allowable net incomes of each party (gross with only allowable deductions)
- Amount of overnights
- Cost of daycare
- Cost of health insurance
- Cost of regularly incurred medical expenses (although this is seldom included)
Frequently Asked Questions
- What if I remarry and my new spouse makes good money. Does that change the amount of child support I receive?
No, the child support is based off the incomes of the parents, not their spouses. If one of the parties has a significant change in income or circumstances (maybe a new disability or a substantial raise/promotion at work, for example), a party may file a Petition for Modification of Child Support. Basically, the courts will run the financial information again and make adjustments as needed.
- I just separated from my spouse but we have not even retained attorneys for a divorce. Do I have to pay support now?
Legally, no. But technically, yes. You will be responsible for paying child support and alimony (if awarded) from the date of physical separation, meaning the date you moved into separate residences. If you make substantially more than your spouse there is a good chance you will have to pay child support. Although you may not know the correct amount at this point, it is always a smart financial decision to start paying some amount so when the court reviews child support, you have shown your intention to care for the children, and you have lessened the burden of arrears you will be responsible for.
Take for example a father who is ordered to pay $500 a month for child support and has never paid. Now, a year later, father is responsible for $500 a month and $6,000 in arrears. That’s a big chunk of change most people do not have on the spot. The good news is arrears can be paid over time, not in one chunk, but it often overwhelms many parents and increases the burden of child support. Now your $500 child support requirement just went up to $650 until the $6,000 is paid off. On the flip side, if you have paid since the date of separation and happen to pay too much, that amount will count towards future payments. So either way, paying child support immediately upon separation can be helpful.
Another common error we see is a parent making payments in cash. Always pay by check and keep track of your payments as evidence. There is nothing worse than being ordered to pay arrears that you have already paid but cannot prove.
- I love my husband and know he will always take care of our child. I do not want the court to force him to pay child support.
Sometimes parents forget that child support really has nothing to do with the parents. It is not meant to be a reward or punishment, although many see it that way. Child support is mandated by the State as a way to make sure the child is taken care of and does not become a burden on the State. For example, if a mother could opt out of child support, she may then not be able to make ends meet and need food stamps, thus the State is now responsible for her child. From a public policy standpoint, it is clear why child support exists.
Furthermore, during the process of a divorce many decisions are emotionally driven. Unfortunately, your loving ex-husband who cares for the child now may eventually remarry and have more children. To take it further, say one of his new children has a special need. The father makes a finite amount of money and the father may decide, with the best intentions, that the child with special needs has more important financial needs than his previous healthy child. Unfortunately, no one can predict the future and court ordered child support helps prepare for changes and establish stability for the child at issue.
Whether you are the payor or payee of child support, try to remember to respect its purpose.
To learn more, please contact our office. We’d love to speak with you!