Do I need a lawyer?
Who is liable for child support?
In Georgia, both parents are obligated to provide for the support of a
child until the child reaches the age of 18, or graduates from high school, whichever is
later, but no later than age 20. There is no obligation to support a child in college or
post graduate studies. However, whatever the parties agree to in settlement negotiations,
and included in the Final Decree of Divorce, will be enforced by
the courts as if it were law. Child support consists of payments made toward the
care, maintenance and education of an unemancipated child under the age of 21. 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.
How is child support calculated?
The federal Family Support Act of 1988 required 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 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.
Georgia has child support guidelines based upon the income of the
non-custodial parent. There is a range of percentages, depending on the number of
children, and computed on the gross income from all sources.
Number of Children
|
Percentage Range of
Gross Income
|
1
|
17% - 23%
|
2
|
23% - 28%
|
3
|
25% - 32%
|
4
|
29% - 35%
|
5+
|
31% - 37%
|
However, many factors can
cause the actual amount to fluctuate and even deviate from the guidelines. Some of these
are the ages of the children, day care costs, education costs, debt structure of the
parties, the income of the custodial parent, children from other marriages or
relationships, etc. Child support obligations are the same whether the support obligation
arrises out of a divorce or a paternity
action.
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.
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.
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.
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.
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.
How do I collect if the payor parent
lives in a different state?
All states have passed the Uniform Reciprocal Enforcement of Support Act
("URESA") or a comparable statute (Connecticut, effective January 1, 1998, has
adopted the Uniform Interstate Family Support Act ["UIFSA"], a similar statute
with greater protections more simplified procedures) 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 URESA/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 URESA/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. URESA/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 URESA/UIFSA procedures.
Prior to filing a URESA/UIFSA petition, the custodial parent should usually consult with a
parent in his or her home state to discuss whether filing a URESA petition is the best
method for collecting support under the circumstances of the case.
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.
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.
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.
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.
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.
