CHAPTER 4: Child Support and Alimony
Child Support Guidelines
Both parents have a duty to provide financial support for their children. Child support is calculated according to statewide guidelines that provide a formula. Software programs are available to perform the calculations.
Among the factors the support calculation takes into account are:
- The income each parent earns or is capable of earning.
- Other non-earned income each parent receives.
- The number of children the parents have with each other.
- The amount of time each parent spends with the children.
- Support provided to children from other relationships.
Once you and your spouse have completed your budgets, disclosed your income [see Ch. 3], and decided on a parenting plan [see Ch. 2], your lawyers will be able to run the calculations and let you know the guideline support amount.
One issue that can arise in calculating child support is whether a parent has fully disclosed his or her income. There are many ways to understate the true amount of income. Business owners especially can understate income by paying themselves a low salary or charging personal expenses against the business. When hidden income is suspected, it may be necessary to hire a forensic account to look into the parent’s tax returns and financial records.
Deviation from Guidelines
You and your spouse can agree to a child support amount equal to or greater or lesser than the guideline. You may even agree to no child support. However, the court will likely want a reason for the deviation. The court will not approve an agreement for child support below the guideline if the agreement will not adequately provide for the children’s needs; the recipient has not been fully informed about his or her rights to support; or the agreement appears to be the result of coercion. The court will not allow a deviation that seriously impairs the ability of the parent to whom support is owed to maintain minimally adequate housing, food, and clothing for the children.
If the recipient spouse is receiving public assistance, the court will not approve support below the guideline amount unless the public assistance officials agree.
If child support is decided by the judge after a trial, the judge may order support that deviates from the guidelines if the deviation is in the best interests of the child and the amount of support indicated by the guidelines is unjust or inappropriate under the circumstances. For example, the judge could require support above the guideline amount when a child has special needs. On the other hand, a judge could order support below the guideline amount when the parent has an extraordinarily high income and the guideline amount would exceed the children’s needs.
Modification of Child Support
Child support is not fixed permanently. The amount can be increased or reduced as circumstances change in the future. For example, a change in the amount of child support may be appropriate if either parent has a significant change income or change in the amount of time the child lives with that parent, or if the child’s needs change significantly. You and your spouse can agree to a change in the amount of child support. If one of you wants a change but the other does not agree, the parent seeking the change will need to return to court.
When Child Support Begins and Ends
Generally, child support begins from the day the divorce is filed and must be paid until the child turns 18 and has graduated from high school. Parents can agree to continue child support through college and the agreement can be enforced in court. If a child is disabled and unable to support himself or herself, the court may order child support to continue beyond age 18.
Alimony (also referred to as spousal support or maintenance) is paid by one exspouse to the other after the termination of the marriage. Temporary alimony may be paid during the divorce. The purpose of alimony is to help the lower income spouse maintain his or her standard of living and to become self-supporting within a reasonable time, if possible.
Determination of Amount
Unlike child support, there is no mathematical formula for calculating the appropriate amount of alimony. You and your spouse can agree on an amount and duration for alimony or that no alimony will paid. Your divorce and post-divorce budgets can provide useful information on one spouse’s need and the other party’s ability to pay support.
If you cannot agree on alimony, the court will decide by considering a number of factors.
Factors Courts Consider
The following is a list of typical factors considered by courts in deciding whether to order alimony, how much to order, and for how long a period.
Disparity in Incomes. Often marriage partners have significant differences in their ability to make money. These differences can be due to disparities in education, intelligence, motivation, sex, or time absent from the workforce to raise children.
Length of Marriage. Alimony is less likely in a short marriage. Many courts use a sliding scale approach, employing a formula where the number of years of maintenance awarded is related to the number of years of the marriage. In longer term marriages where the parties are at or approaching retirement age, the court may order alimony to get the payee spouse to a point where Social Security benefits kick in.
Job Market Reentry. When the marriage has been short and the spouse seeking maintenance is employable or can be employable with some training, support may be awarded only to provide the spouse with enough time and money to become self-supporting. In these cases, plans of rehabilitation including costs and estimates of time are considered in the determination of alimony.
Example: The wife, a nurse, has been out of the workforce for ten years. To have her license reinstated, she will need $6,000 in edu- cation fees and two years. Alimony could be provided to cover the costs of re-education and to support the nurse during retraining.
Loss of Career. If a spouse surrenders his or her career in deference to the career of the other spouse, an argument can be made that alimony should be paid to compensate the deferring spouse for this sacrifice.
Example: A wife surrendered her position as a high school principal when her husband had to relocate to advance in his career. In the new location, the only available employment for the wife was as a teacher. Arguably, the difference in pay between the positions is a financial loss that should be compensated for by means of alimony. These same types of arguments can be raised when a wife or husband leaves the work force to care for the children of the couple.
Property Division. The assets received by a spouse in the division of the marital estate may significantly influence whether or not alimony is awarded. If, for example, a spouse is awarded hundreds of thousands of dollars of income producing assets in the course of the divorce, he or she may have no need for alimony.
Separate Wealth. Related to the assets received in the divorce are considerations related to the overall financial condition of a spouse. If a spouse has separate property that makes him or her independently wealthy, the spouse is unlikely to be awarded alimony.
Ability of Spouse to Be Self-Supporting. If a person cannot provide for themselves though employment or the use of financial assets, alimony is appropriate. Courts are often reluctant to cast spouses onto public assistance if funds for spousal support are available.
Physical Condition, Mental Condition, Age. The physical condition, mental condition, and age of a spouse are considerations in determining alimony. A disabled spouse may have a difficult time entering the work force and consequently supporting himself or herself. In spite of laws and regulations disallowing it, age discrimination can be a very real barrier to older spouses attempting to reenter the workforce.
Standard of Living During the Marriage. A factor in the determination of maintenance is the standard of living that the couple was able to enjoy during their marriage. The argument indicates that, to the extent possible, the standard of living of the couple after the divorce should be similar to the standard of living that they enjoyed while they were together.
Maintaining the same standard of living after divorce is difficult for most couples. Divorce creates two economic units instead of one. Two economic units are more expensive to maintain than one economic unit. The loss of economies of scale and the duplication of costs ensure that even if the couple shared their total income equally, they would not be able to live as well divorced as when they were married.
Alimony arguments are often raised in conjunction with a spouse’s desire to retain the family residence and the accompanying standard of living. For example, the wife contends, “I can keep the house if he pays me $3,000 per month in alimony.” In divorces with relatively high incomes or significant financial assets, this may be a reasonable assertion. However, in many cases (if not the majority) the family residence represents the most house the parties could buy at their income level and credit rating. This means that the couple’s income was very possibly just meeting the obligations of living and buying the house. Arguing that one party can maintain the house for the other party and provide for himself or herself at the same time may be wholly unrealistic.
Consequently, while standard of living can be a consideration, it should not be the sole definitive factor.
Child with Special Needs. Alimony can be awarded to provide for a parent who is unable to work because he or she is caring for a child with special needs. Outside care for the child may not be available, or the cost of such care may equal or exceed what the parent could make in the work force. In such cases, the financially logical approach is to provide support for the parent so that he or she can care for the child.
Ability to Pay. The court will consider the financial situation of the payer spouse. An award of alimony that exceeds an individual’s ability to pay makes little sense. The couple is likely to end up back in court with one trying to collect the alimony and the other trying to have it reduced or eliminated. The post divorce budget can be used to as a guide to setting alimony at an affordable level.