Child Support: What's Fair?
If you and your spouse believe you can reach a settlement, how do you determine what's in your child's best interest but also fair to both of you? It's not easy, but you can do it.
To Settle or Not to Settle? That Is the Question
Now that most states have formulas for determining child support, there is little mystery about the outcome if you were to have a judge decide. If you are the custodial parent and your spouse isn't willing to meet the state's guidelines during negotiation, why should you settle? Most of the time, of course, you shouldn't. But there are exceptions. The following are some important reasons for agreeing to less child support than the state's guidelines might otherwise allow:
- There's more certainty that you can collect the support. Most parents will pay what they can afford and especially what they have agreed to pay. In contrast, when they fall hopelessly behind or a judge orders them to pay more than they can afford, they often default, and, if your ex lacks a job or assets, it can be a lot harder to collect.
- Add-ons. If you agree to a child support figure that is less than the formula, you might be able to get your spouse to add on other items. Maybe the law of your state doesn't obligate a parent to pay for after-school activities, camp, or even college. You might be willing to accept less child support than the formula provides if your spouse will pick up some of these items.
- Exception to the formula. Remember, hardship provisions to the law usually make the formula inapplicable. If your spouse demonstrates to a judge that hardships exist, the judge might not apply the formula. If that situation is a possibility for you, negotiation might be in your best interest.
Likewise, if you are the noncustodial parent, negotiating child support might be best for you because …
- Your spouse might agree to less than the guidelines allow.
- You have more say over what your financial needs are and can tailor the agreement to your situation.
- You can modify the agreement to state that if your income decreases by a certain amount, your child support payments can be reduced accordingly.
Duration of Child Support
Red Alert
In most jurisdictions, you cannot just agree to change child support informally, with your ex. Instead, you must go to court to obtain an order modifying the amount of support. Otherwise, your support obligation continues to accrue and is enforceable under the law.
Child support should terminate at the age your child is considered emancipated under your state's laws. In some states, that means age 18; in others, age 21, or beyond.
Other events can terminate child support as well—the child's entry into the military, assumption of full-time employment, or marriage before the age of emancipation. If the child moves in with the non-custodial parent on a permanent basis, child support also should stop. (You might want to negotiate a sum the former custodial parent will have to pay you in that case.)
If you and your spouse agree, child support can extend beyond the age of emancipation. For example, if in your state the emancipation age is 18, but you want your spouse to continue to pay child support until your child graduates from college, you could try to negotiate a provision stipulating that child support continue for as long as the child is a full-time undergraduate student, but in no event beyond the age of 21 or 22, whenever the child graduates in due course.
What Should the Child Support Figure Be?
Red Alert
If your child support agreement includes a mechanism to increase child support without returning to court, consider a similar mechanism to decrease child support in the event of a financial setback, such as a job loss or a reduction in income of, for example, 25 percent or greater. If you are the parent paying child support, you might want a provision that reduces it by, say, a third or half when the children are in camp or away at college, particularly if you are also contributing to camp or college. Why not a 100 percent reduction? Because your former spouse still has to maintain the home for your child after camp or during college vacations (assuming that your state is one of the few in which the age of emancipation is 21). But beware, you'll have to formalize each decrease by way of court order, or your “official” child support obligation will remain as it was per the last court decree.
How do you go about determining exactly how much child support you should pay or receive if you are negotiating an agreement that deviates from your state's guidelines? Keep in mind that the state is unlikely to allow you to give (or receive, depending on your position) less than what is provided in the guidelines, unless you persuade the court it's appropriate to deviate from those guidelines in your case.
To ascertain a fair amount of child support without using your state's formula, it is best to figure out a monthly budget for the children. Household expenses, such as mortgage or rent, food, and utilities can be allocated one half to the children and one half to the parent, or they can be allocated one part each among all the children in the household and the parent. Clothing costs for the year should be added up and divided by 12, as should camp, extracurricular activities, birthday party gifts, and similar items that are paid only once or twice a year.
After you and your spouse have worked out a budget, you can determine the total contribution for each of you. You should agree on a mechanism for calculating future cost-of-living increases for this payment. You can base your formula on the cost-of-living increase as determined by your state's department of agriculture or other indices, or if you prefer, you can base it on increases in your incomes. Because most people prefer not to reveal their income each year, it's common to base such payment increases on outside, objective criteria.
Don't Miss a Beat: Taking All Your Expenses into Account
If your child is a toddler, it's difficult to think about what college will cost or who will pay for it years down the road. If a judge is going to try your case and you have young children, you'll probably have to return to court when the child is a junior or senior in high school to have the judge address the issue of who will pay for college. If you want to settle all the issues now, however, a provision that often works is this: you and your spouse simply agree now to pay half of what it would cost to send your child to the most appropriate school in your state's college system. Any excess amounts (say your child gets into Harvard) will be paid by the parent or parents who can afford it. This way, both parents have a minimum obligation.
What about the First Communion, Bar Mitzvah, the Sweet Sixteen party, the first car? If you negotiate an agreement, anything goes. If your case goes to court, judges may or may not address those types of expenses.
If you want to be ready for anything, you'll want to figure some of the following expenses into your agreement now:
Wait a minute, you might be thinking. If all those items are extras, what am I paying child support for? Answer: food, shelter, clothing, telephone, utilities, and so on. Of course, depending on the amount of child support you are paying, your spouse may use some of the support for these extras.
Be careful, though. Anything you sign might come back to haunt you. Harvey, for instance, felt so guilty about leaving his wife, Jessie, that he agreed in writing to pay for each of their four daughters' weddings at the Waldorf-Astoria or someplace comparable. The daughters were only teenagers at the time. Unfortunately, Harvey's business took a turn for the worse. Although he could not afford the expensive weddings, he was obligated to pay for them. He went into debt to do so.
If you have a breakdown in negotiations, you can fall back on your state's child support guidelines, which really should be the floor for any child support award. Remember, that's the base level, and anything beyond is extra. Don't be afraid to seek help from your lawyers or a mediator.
Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.
To order this book visit the Idiot's Guide web site or call 1-800-253-6476.
