Child Support
Both parents have a legal duty to support their child based to their ability to provide that support. Tennessee has a Child Support Schedule that provides a formula for calculating child support. When Courts Get Involved When parents divorce or stop living together with their children as a family, a court often becomes involved. The court is often required to decide how much support the non-custodial parent must pay. Unlike custody, the amount of support cannot be decided by agreement of the parents. Which court is appropriate? In order for a court to have jurisdiction to force a parent to pay child support, it must have personal jurisdiction over the parent. Personal jurisdiction means that the parent paying the support must have a connection with Tennessee, rather than another state. Similarly, not every Tennessee court has jurisdiction, and you must file in the appropriate one in the right county. (For married parents, that will usually be a Circuit or Chancery Court in the county where one of the parents resides. For unmarried parents, it may be a General Sessions or Juvenile Court where one of the parents resides.) Once a valid child support order is entered, the court continues to have the power to award child support even though it no longer has contact with the supporting parent or child. The Elements of the Child Support Order There are several parts to most child support orders. First, the paying parent will almost always be ordered to make a monthly money payment to the other parent. Important points to notice about the child support order: A Money Payment to the Other Parent This may occur directly, via the Court Clerk, or through the Child Support Enforcement Office in Nashville. Many paying parents resent the child support order because it is made to the other parent and not the children. Because of this, some refuse to make the payments. Some see it as a form of alimony. However, this is not true. The direct payments are to be used to pay for the vital needs of the child, such as rent, food, and clothes. The court keeps the authority (retains jurisdiction) to change the order. A child support order can be changed if conditions change substantially in the future. Either parent may later ask the court to raise or lower support.
Payments automatically end when the child reaches majority or becomes emancipated. The purpose is to automatically end the support obligation when the child reaches majority (age 18 in Tennessee) or becomes emancipated before age 18. Note: If you are making payments through the Child Support Enforcement Office in Nashville, you need to advise it to ensure that no arrearages (past due support) pile up. Child support hearings are often adversarial. This means that the two sides have different ideas about the best solution. When the parents cannot agree on the support order (sometimes after completing mediation), the court will hold a hearing to decide the issue. At the hearing, each spouse (or lawyer) will have the opportunity to cross examine the other. Each side can subpoena documents and call witnesses to support his or her position. Child support orders can also be appealed, although the chances of success are not very good. Child Support Schedule The Child Support Schedule is a chart which displays the basic child support obligation in dollar amounts which correspond to income and the number of children for whom a court order is being established or modified. The Schedule shows the amount of support necessary to care for the child based upon the combined income of both parents, not just the parent paying child support. Each parent’s obligation will be a percentage of that amount. The basic child support obligation is based upon adjusted gross income, the amount that results from series of calculations discussed here. Worksheets Two worksheets must be used to calculate a parent’s financial obligation. Both parents must use them. (Computer versions of them should be available on the Internet and in clerk’s offices.) The Credit Worksheet is used for determining the amount of credit the court must consider to reduce either parent’s gross income to allow for the support provided to other children. The Child Support Worksheet is used for calculating the child support obligation of both parents. It requires information about the children, the existing court orders, and other children not subject to the current orders. It also requires information about the amount of parenting time each parent has with a child in order to determine whether adjustments should be made, as well as information about proposed deviations to be made in the child support order. Adjusted Gross Income When calculating child support obligations, the gross income of both parents is first used. This is the beginning of a series of calculations about what income is finally taken into account. Exclusions: Gross income does not include: (1) child support payments received by either parent for the benefit of a child of another relationship; and (2) benefits received from means-tested public assistance programs like Families First.
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Adjustments: Each parent may deduct from gross income: (1) any amount of self-employment tax actually paid and (2) the amount of current child support actually paid under preexisting orders (but not payments in arrears). Credits for Other Children Being Supported Without a Court Order: If a parent wants to seek credit for support payments made to another child where there is no pre-existing order, a credit may be claimed and a theoretical order is used. The only deduction used in calculating the theoretical order is for a deduction of taxes for self-employment. The parent seeking credit must submit proof of the legal relationship with the child. If the child for whom the parent is claiming credit resides more than 50% of the time with that parent, no proof of amounts paid for the support of the child is required. For a child residing less than 50% of the time with the parent claiming credit, the parent must provide evidence of financial support. The credit for supporting other children is 75% of what would be paid under a theoretical order or the actual support provided, whichever is less. Imputed Income: In an initial determination to set support, income may be imputed to parents who fail or refuse to produce reliable evidence of income and the court has no other reliable evidence of income or income potential. Both parents are equally subject to having income imputed. The amounts imputed are gross income of $35,851 for men and $26,450 for women. Voluntary Unemployment or Underemployment: If a parent willfully reduces income and becomes unable to support a child in a reasonable manner given the parent’s skills, education, and training, then a court may set support on the income the parent should be earning. It may do so for both parents, including parents receiving Families First benefits. Determining Each Parent’s Obligation Once a parent’s gross income has been determined and all exclusions, adjustments, and credits applied, the subtotal is called the adjusted gross income. Then the adjusted gross income of both parents is added, and the income of each parent is divided by the total income of both parents. The results are two percentages. They represent the parents’ shares of the financial responsibility for the child. These percentages become the basis for allocating the basic child support obligation, the health insurance premium, child care, uninsured medical expenses, and extraordinary educational or special expenses. The left column of the Child Support Schedule contains many rows for the combined adjusted gross income of both parents. In other columns it shows the number of children. The number in the box where the income and the number of children intersect is the amount of the basic child support obligation for both parents. That amount is then allocated between the parents according to each parent’s percentage interest. (Note: round up when the amount of income falls between the amounts shown in the Schedule.) Parenting Time Adjustment The parent who resides more than 50% of the time with a child is usually called the primary residential parent. The parent who resides less than 50% of the time with the child is called the other parent.
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When the other parent spends either more or less than standard amounts of parenting time with a child, it is assumed that the expenditures by the other parent for the child increase or decrease in proportion to the time spent. The obligation to pay child support may be adjusted – downward or upward – for this reason. A “day” means a child spends the majority of a 24-hour calendar day with or under the control of a parent and the parent expends resources on the child during this period. Two hours per day with the child would not be a “day.” Keeping the child overnight, even if it were a majority of the calendar day, with no meaningful expenditures for the child’s care, would not be a “day.” The other parent’s portion of the child support obligation is increased for the lack of days of parenting time as follows: 0 – 8 days 9 – 23 days 24 – 37 days 38 – 53 days = = = = 40% increase 30% increase 20% increase 10% increase
There is no adjustment for parenting time that falls between 53 days and 121 days. The other parent’s portion of the child support obligation is reduced for the days of parenting time as follows: 121 – 136 days 137 – 151 days 152 – 166 days 167 – 181 days 182+ days = = = = = 10% decrease 20% decrease 30% decrease 40% decrease 50% decrease
Additions to the Basic Child Support Obligation Certain expenses are not included in the basic child support obligation, namely: a child’s health insurance premium, work-related childcare costs, a child’s uninsured medical costs, and extraordinary educational costs.
To include in the support obligation the mandatory expenses to be shared by the parents, an amount representing the actual cost to the parent for the child’s health insurance premium and work-related child care are added to the basic child support obligation. These expenses are to be averaged over a one-year period to determine a monthly amount, and then divided between the parents according to the percentages previously calculated. A child’s uninsured medical expenses are not mandatory additions to the basic child support obligation. But any such expense that is reasonably identifiable and recurring must be added onto the presumptive child support order according to the percentage interests of the parents. Expenses that are neither reasonably identifiable nor recurring must be paid by the parents in the same proportion as their percentage interests. A provision for payment of uninsured medical expenses must be included in the child support order.
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Deviations Deviations from the Guidelines may be appropriate for reasons where the court finds it in the best interest of the child. The court’s order must include written reasons for the deviation, the amount that would have been otherwise awarded, and a written finding of how application of the Guidelines would be unjust or inappropriate in the particular case and how the best interest of the children is served by the deviation. The court may consider a deviation for the following reasons: Extraordinary educational expenses Special expenses in excess of 7% of the monthly basic support obligation, such as summer camp, music or art lessons, travel, and school-sponsored extracurricular activities. A child is in the legal custody of the Department of Children’s Services or any other childcaring entity, public or private. Travel expenses are substantial due to the distance between the parents. Extreme economic hardship exists because of extraordinary medical needs not covered by insurance or other extraordinary special needs for the child of a parent’s current family. Low-income: a parent is considered to be a low income person if his or her annual adjusted gross income is at or below the federal poverty level for a single person, but there is a minimum basic support obligation of $100 per month if the parent has non-exempt gross income of that much. High-income: the primary residential parent has the burden of proving by a preponderance of the evidence that more support is reasonably necessary to provide for the needs of the child. Hardship for either parent: for the first modification of an order previously entered under the rules existing before January 18, 2005, a court may deviate if the modification will result in a hardship for the other parent due to a substantial increase in the order or a hardship to the primary residential parent and the children due to a substantial decrease in the amount.
Modifications A child support order can be considered for modification only if there is a significant variance, if the request is for a child’s health care needs, or if the reason for a previous deviation has ceased to exist. During 2005, a significant variance occurs if: there has been at least a 15% change in the gross income of the other parent; there has been a change in the number of children for whom the other parent is legally responsible and is actually supporting; a child supported by the order to be reviewed has become disabled; or the parents have voluntarily agreed to modify support in compliance with the Guidelines
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and submitted the completed worksheets with the agreed order; AND there would be a 15% change in the amount of the current support order as compared to the proposed support order; OR there would be a 7.5% change in the amount of the current support order as compared to the proposed support order for a low income parent.
Beginning January 1, 2006, the significant variance rule is defined as: a 15% change in the amount of the current support order as compared to the proposed support order; OR a 7.5% change in the amount of the current support order as compared to the proposed support order where the parent’s adjusted gross income is at or below the federal poverty level.
The modification may be requested due to a change in income for either parent that causes a proposed order to meet the significant variance requirements. The birth or final adoption of a child is a substantial and material change of circumstances that will enable the court to review the existing order. This review will determine if the addition of a child would result in a significant variance from the current ordered amount of support. No variance is required to modify the order to meet health care needs of a child in an order. Retroactive Support In cases where initial support is being set, a judgment must be entered to include monthly support for the child for all periods up to the date of the order. Deviations are permitted but must include written justification for the deviation, the amount that would have been otherwise awarded, and a written finding from the court of how application of the Guidelines would be unjust or inappropriate in the particular case and how the best interest of the children is served by the deviation. The retroactive support amount is usually based upon the Guidelines in effect at the time of the order, using average income over the past two years. Adapted by Southeast Tennessee Legal Service., 29 Patten Parkway, Chattanooga, Tennessee 37402, telephone 423-756-0128, fax 423-756-0181, www.selegal.org. Rev. 12.27.2004. Sources: Tennessee Department of Human Services and Northwest Justice Project.
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