Ch 9 child support 2ed

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Class NameInstructor NameDate, Semester

Family Law for the Paralegal2nd Edition

Wilson

Chapter 9:Child Support

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LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Explain what child support is and when, how, and to whom it is awarded.

Distinguish between child support and spousal support.

List primary initiatives the federal government has undertaken in the area of child support.00

9.1

9.2

9.3

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Cont.

Identify major jurisdictional issues that arise in child support cases.

Explain what child support guidelines are and how they are applied.

List factors courts consider when establishing child support orders.

9.4

9.5

9.6

12



Cont.

Explain when and how a child support order can be modified.

List ways of enforcing child support orders

Identify the primary tax implications of child support.

9.7

9.8

9.9

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Identify the kinds of tasks paralegals perform in child support cases.

9.10

Learning ObjectiveAfter this lecture, you should be able to:

9.1Explain what child support is and when, how, and to whom it is awarded.

• Child support refers to a parent’s obligation to contribute to the economic maintenance of his or her child (including adopted children).

• Child support issues arise in many contexts including divorce, separate support, paternity, and abuse and neglect actions.

• Child support may be temporary (while an underlying action is pending) or “permanent” though it remains subject to the continuing jurisdiction of the court.

What is child support?9.1

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• Child support is most commonly paid by a noncustodial parent (the obligor) to a custodial parent (the obligee).

• Sometimes a parent may be ordered to pay child support to an agency such as a residential treatment or juvenile correctional program.

• Persons ordered to pay child support can include parents as well as third parties who act in loco parentis (in the place of a parent).

• The majority rule is that absent an agreement or a court order, a step-parent will not have a duty to support a step-child.

• A man who has acknowledged paternity may be ordered to pay child support even if DNA evidence proves him not the father.

Who has to pay child support and to whom?9.1

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• There are significant jurisdictional variations.

• The duty typically continues until the child’s emancipation.

• Emancipation refers to the age (18 in most states), act or occasion that frees a child from the control of a parent.

• In some states, a parent may remain liable for support of a disabled child beyond the age of 18 or while the child pursues a certain type and amount of higher education.

When does the child support duty end?9.1

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9.2Distinguish between child support and spousal support.

• Child support:– Is a right of the child– Cannot be waived by agreement between the parties– Is calculated using federally mandated guidelines

developed by the states– Remains under the continuing jurisdiction of the court– Can be modified based on a substantial change in

circumstances or on a periodic review– Does not terminate as a result of a parent’s

remarriage– Is neither deductible to the payor nor includable in

the income of the recipient– Is not discharged in bankruptcy and is given priority

in payment

What are the differences between child support and alimony? 9.2

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• Alimony:– Is a spousal duty based on one party’s need and the

other party’s ability to pay– Can be waived in a valid agreement between the

parties in most states– Is not calculated according to guidelines governing

amount or duration in most states– May be modified based on a material change in

circumstances unless contrary to a statute, decree, or surviving agreement of the parties

– Will not be terminated by remarriage of the recipient in most states

– Is usually tax deductible to the payor and income to the recipient

– Is usually not dischargeable in bankruptcy

What are the differences between child support and alimony? (continued)9.2

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9.3List primary initiatives the federal government has undertaken in the area of child support.

• The primary initiatives taken by the federal government are designed to

• contain the costs of public assistance programs.

• address inadequacies and inconsistencies in child support awards across the states.

• streamline and strengthen enforcement especially when multiple states are involved.

What are the primary initiatives the federal government has undertaken in the area of child support and why given that it has historically left regulation of family matters to the states?9.3

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• It established the Office of Child Support Enforcement (OCSE).

• It required the states to develop numeric, formula-based child support guidelines to be used in establishing child support awards.

• It required the states to have a procedure for establishing paternity any time before a child reaches age 18.

• It required the states to seek medical support for children as part of any child support order.

• It strengthened enforcement efforts.

• It mandated creation of federal and state Case Registries and Directories of New Hires.

What are some of the major initiatives undertaken by the federal government in the

area of child support?9.3

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• It mandated creation and adoption of the Uniform Interstate Family Support Act (UIFSA).

• It created the Transitional Assistance to Needy Families Program (TANF).

• It required each state to develop a comprehensive child support program run by a single state agency to be designated its IV-D agency.

What are some of the major initiatives undertaken by the federal government in the

area of child support? (continued)9.3

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• IV-D agencies– Assist in establishing paternity through testing of

putative fathers.– Assist with location of noncustodial parents through

state and federal parent locator services.– Facilitate entry of support orders after paternity is

established.– Periodically review child support awards.– Enforce existing awards.

• The services of IV-D agencies are available to parties receiving public assistance and those who are not.

What are the primary responsibilities of a state’s IV-D agency?9.3

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9.4Identify major jurisdictional issues that arise in child support cases.

• Subject matter jurisdiction over child support cases: usually rests in family courts but may also be in juvenile courts, district/county courts, and other courts that deal with matters pertaining to children and their parents

• Personal jurisdiction over the defendant: each state has its own statutes governing the ways in which personal jurisdiction over a defendant may be obtained (personal service, service by publication, etc.)

What kind of jurisdiction must a court have in a child support case?9.4

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• Obtaining personal jurisdiction over a resident defendant: usually by personal service but sometimes the defendant’s whereabouts are unknown

• Obtaining personal jurisdiction over a nonresident defendant in the petitioner’s own state: usually under UIFSA’s or a state’s long-arm statute

• Obtaining personal jurisdiction over a nonresident defendant in his or her own state: usually by using the services of the state’s IV-D agency with the agency acting on behalf of the petitioner with or without the assistance of private counsel

What are some of the most common jurisdictional issues that arise in child support

cases?9.4

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• Under UIFSA, there should only be one valid child support order enforceable in all states.

• Once a court issues a valid child support order, that court will have continuing exclusive jurisdiction for purposes of modification as long as either parent or the child continues to reside in that state or the parties file written consents that another state assume jurisdiction.

• If neither parent nor the child continues to reside in the issuing state, that court will lose continuing jurisdiction and a court in another state can acquire it. If an order is sought in multiple states, under UIFSA preference will be given to the child’s home state.

Where does continuing jurisdiction lie once an initial award has entered?9.4

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9.5Explain what child support guidelines are and how they are applied.

• Child support guidelines are guidelines developed by the states in response to federal mandate. They are presumed to generate an appropriate amount of child support given a particular set of assumptions and circumstances. (See Exhibit 9.2 on page 307 of the text for an example of the Missouri Guidelines Form.)

• They apply to all child support orders whether at establishment or modification.

• Guidelines incorporate various descriptive and numeric criteria and formats vary from state to state.

• They must provide for children’s health care needs.

• They must be reviewed every four years and revised if necessary

What are child support guidelines?9.5

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• Application of the guidelines produces a rebuttable presumption of the appropriate amount of child support to be ordered.

• Any order that deviates from the guidelines amount must include written findings by the court about why the deviation was required.

How are child support guidelines applied?9.5

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• The guidelines must consider all earnings and income of the noncustodial parent (in many states, the income of both parents is considered).

• Income is usually defined as “income from all sources” but what will be included varies according to federal law, state law, administrative law, and case law.

• Typically income will include: support received from another person; cash and gifts from family members, lump-sum severance pay, annual bonuses, lump-sum personal injury settlements, gambling winnings, SSDI benefits, reimbursements received in the course of employment, and retirement benefits (with limitations).

• Typically not included in income: Means-tested benefits such as PELL grants, TANF benefits, food stamps , and Supplemental Social Security Income (SSI)

What income are the guidelines based on?9.5

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• Imputed income is income attributed to a party based on his or her earning capacity rather than on actual earnings.

• Most states will impute income to a party (either the obligor or the obligee) if appropriate and some states have a formula for doing so.

• Examples of when income might be imputed: voluntary early retirement, voluntary unemployment or underemployment, loss of gainful employment due to a party’s own wrongdoing.

• Most courts will not impute income if there is a good faith reason for unemployment such as a physical disability.

Can income be imputed to a party?9.5

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9.6List factors courts consider when establishing child support orders.

• Extraordinary expenses: These are expenses that are not reasonably predictable or consistent child to child such as medical expenses that are substantial in cost and/or duration.

• Multiple families: The traditional rule is “first families first” meaning the obligor usually cannot request a downward modification based on having a new family but may use the cost of supporting a new family as a defense to a claim for an upward modification.

• Cost of living in a particular geographical area• Standard of living (although the basic purpose of child

support is to provide for the child’s “survival needs”)• There are some additional variables that may be factored

into the guidelines or be treated as reasons for a deviation such as: custodial and visitation arrangements; number and ages of the children; financial misconduct of either party; existence of an agreement; and needs, liabilities, and resources of the parents

In what circumstances might a court deviate from the presumptive guidelines amount of

child support?9.6

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• Several states provide that if a child continues high school past age 18, child support will continue until he or she finishes high school or turns 19.

• There is a range in approaches to higher education but the current trend is absent an agreement, parents will not be required to pay for such expenses.

• Deviations in the child support amount may be made if the child participates in special needs or gifted programs, necessary tutoring, etc.

What is a parent’s financial responsibility for the educational needs of his or her children?9.6

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9.7Explain when and how a child support order can be modified.

• Based on a self-executing provision in an agreement of the parties incorporated in a court’s decree (should be tied to the parties’ actual financial circumstances)

• Based on proof of a substantial change in circumstances (usually the change must have been unforeseeable); the burden of proof is on the petitioner and may be satisfied by a showing that there is a specific level of difference between the award and the current guidelines amount (such as 15% in some states); See Paralegal Application 9.4 on pages 319 and 320 re incarceration as a change.

• Based on a periodic review and adjustment of orders by the state’s IV-D agency

• The modification action can be brought by a party or by the state’s IV-D agency. The petition is not always granted but may be if the court is persuaded the prior award is inequitable and the change is in the best interests of the child.

When and how can a child support award be modified?9.7

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9.8 List ways of enforcing child support orders

• Based on a self-executing provision in an agreement of the parties Once an award is made it can be enforced in any state where the obligor or his or her assets are located.

• If the obligor is a nonresident, the obligee can travel to the defendant’s state to seek enforcement or he or she can use the IV-D agency in his or her state (the initiating state) to “register” the order in the defendant’s state (the responding state) for enforcement.

How are child support awards enforced?9.8

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• Contempt actions (civil or criminal)

• Income withholding (the most effective)

• Criminal prosecution under federal or state law

• Seizure of assets

• Tax refund intercepts

• Unemployment compensation intercepts

• License denials or revocations

• Passport denials or revocations

• Credit reporting

What are some of the available enforcement methods?9.8

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9.9Identify the primary tax implications of child support.

• Child support is a tax-neutral event, neither deductible to the payor nor includable in the recipient’s income

• The general rule is that the custodial parent is entitled to claim the child as a dependent for tax purposes resulting in an adjustment to that party’s gross income. The parties may agree to an alternative arrangement.

• The parent claiming the exemption is also entitled to the child tax credit resulting in a credit against his or her tax liability rather than an adjustment to gross income.

What are the primary tax implications of child support?9.9

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9.10


• They complete child support guidelines worksheets for review. (See Paralegal Application 9.2 on page 306 of the text.)

• They research governing law including any pertinent jurisdictional issues.

• They gather information and documents pertaining to financial resources, income, children’s needs, standards of living, parenting plans, expectations and motivations, etc.

• They draft child support provisions for inclusion in separation agreements. (See Paralegal Application 9.7 on pages 329 and 330 of the text: Drafting Pointers for a Child Support Provision in a Separation Agreement or Parenting Plan.)

• They draft complaints/petitions, affidavits, responsive pleadings, proposed orders, materials in preparation for trial, etc.

• They draft discovery requests

What kinds of tasks do paralegals commonly perform in child support cases?9.10

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Cont.

Chapter Summary

9.1

9.2

9.3

Explain what child support is and when, how, and to whom it is awarded.

Distinguish between child support and spousal support.

List primary initiatives the federal government has undertaken in the area of child support.

12


Cont.

Chapter Summary

9.4

9.5

9.6

Identify major jurisdictional issues that arise in child support cases.

Explain what child support guidelines are and how they are applied.

List factors courts consider when establishing child support orders.

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Cont.

Chapter Summary

9.7

9.8

9.9

Explain when and how a child support order can be modified.

List ways of enforcing child support orders

Identify the primary tax implications of child support.

12


Chapter Summary

9.10


Ch 9 child support 2ed

Economy & Finance

Transcript of Ch 9 child support 2ed