Children have a fundamental right to receive financial support from both parents. Since both parents have a responsibility to provide for their children, parents cannot enter into any private agreement that might lessen a child’s right to financial support. Any individual agreements that intend to terminate a child’s support from either parent are void and are against public policy.
Each jurisdiction maintains child support guidelines that define the amount of child support. The court bases child support payments by considering the number of minor children, the parents’ disposable income, and the amount of parenting time spent with the children.
Listed below are some income and non-income categories that may count toward child support:
Courts have the power to order child support payments either above or below the guidelines if they find that the guideline amounts are unjust or are against a child’s best interest.
Some possible reasons that the court can assess different support amounts include:
A court can modify or change child support if a person’s income level changes.
Some accepted reasons to modify child support include:
Courts can also consider the following factors in raising or lowering child support obligations above or below guidelines:
Child support obligations usually end when the minor child becomes emancipated (achieves independence, generally at the age of 18). Different jurisdictions maintain different emancipation ages. In California, the emancipation age is 18, but a parent may still be obligated to pay child support for a 19-year-old child who is still enrolled in high school full-time.
Emancipation can also happen through military service. Financial support for adult disabled children may continue, if necessary, even after emancipation (reaching the age of majority).
Placement of a child in foster care or a juvenile detention facility does not release the parents from their legal obligation to financially support the child. A court order terminating parental rights ends the obligation to pay child support. If a parent who is required to pay child support dies, the financial responsibility to pay child support becomes a charge against the decedent’s estate.
One of the significant differences between child support and spousal support is the tax burden that these forms of payments have on the recipient spouse. Child support is not tax-deductible to the paying spouse, meaning that the paying spouse must pay taxes on this money, and the recipient parent of the child support payment does not have to pay taxes on it. On the other hand, spousal support is tax-deductible to the paying spouse, and the recipient spouse must pay taxes on these payments. As a result, many batterers and other non-custodial parents will attempt to pay their former partner spousal support instead of child support due to tax implications.
The recipient spouse often agrees to this arrangement because they reason that they will receive the same amount of money either way. However, this reclassification of support payments can end up costing the recipient spouse hundreds or thousands of dollars in taxes.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.