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 in to any private agreement that might lessen a child’s right to financial support. Any private agreements that intend to terminate a child’s support from either parent are void and are against public policy.
Shirley is legally married to Marvin who has committed both domestic and sexual violence against her. Marvin refuses to “agree to a divorce” unless Shirley agrees to waive any rights to collect child support from Marvin. Shirley tells the court that she would like to waive her right to collect child support from Marvin because she just wants out of the marriage. The court cannot release Marvin from his child support obligation despite the prior agreement between Marvin and Shirley.
Determing the amount of Child Support:
Each jurisdiction maintains child support guidelines that determine the amount of child support. Child support is calculated 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 of the categories that are classified as income (counted towards child support) and some others that are not classified as income.
-Social security payments
-Interest earned from an inheritance
-Interest earned from personal injury awards
-Employer fringe benefits such as auto or housing allowances
-TANF (Temporary Assistance to Needy Families)
-Student financial aid
-Personal injury awards
-New spouse’s income
Courts have the power to order child support payments either above or below the guidelines if there is a finding 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:
-Stipulation (agreement) by the parties
-Extraordinary high income
-Other children live at home
A court can modify or change child support if a person’s income level changes.
Modification of Child Support
Some generally accepted reasons to modify child support include:
-Switching to a lower paying job;
-Caring for new children;
-Marrying a wealthy spouse;
-Going back to school;
Additional factors for modification:
Courts can also consider the following factors in raising or lowering child support obligations above or below guidelines:
-Child care expenses;
-Uncovered medical expenses;
-Education/special needs expenses;
-Travel expenses for visitation.
Termination of Child Support:
Child support obligations usually end when the minor child becomes emancipated (achieves independence, usually 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 in 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 obligation to pay child support becomes a charge against the decedent’s estate.
Tax Implications of Child Support Verses Spousal Support:
One of the major 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. Thus, many batterers and other non-custodial parents will attempt to pay their former partner spousal support instead of child support, because of the tax implications.
The recipient spouse often agrees to this arrangement, because she reasons that she receives the same amount of money either way. However, in fact, this reclassification of support payments can end up costing the recipient spouse hundreds or thousands of dollars in taxes.
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*National Tribal Trial College 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.