Child
Support in Georgia
Augusta GA Child Support Lawyer
Introduction to Child
Support
An unfortunate fact of economic life is that a family cannot live as
cheaply divided as it can together. Thus, after a divorce, the living
standard of the entire family is often lowered and the court often
finds itself in the unenviable position of having to divide a scarcity
of resources. Also, there is the problem of changing the child support
order to meet changing needs of children and enforcing court orders
against fathers and mothers who either refuse to make court ordered
child support payments or who cannot do so due to circumstances beyond
their control. These problems, when added to the issue of custody,
visitation and the division of property in a divorce, keep the family
law courts of the country packed to capacity.
Both parents have a legal duty to support their child according to
their ability to do so. Most jurisdictions have child support guidelines
in effect, which provide a formula for calculating child support based
on a proportion of each parent's gross income. These guidelines are
applied unless a party can show that application of the guidelines
would be unjust and inappropriate in a particular case.
Establishing Child Support Payments
During a marriage or committed relationship, such issues are rarely
a concern for the court. But when parents divorce or cease to live
together with their children as a family, the courts are usually
required to establish by decree the amount of child support a non-custodial
parent must pay. Like the issue of custody, this can be reached by
agreement or by fighting it out in front of a judge. Child support
payments, like alimony, may be incorporated into the divorce judgment
or may be provided for in a marital separation agreement. You can
avoid making child support a contested issue, and the legal expense
of litigating this issue before a Master or a Judge, by both parents
agreeing to the appropriate amount of child support and making this
agreement part of a marital separation agreement.
The Nature of the Child Support Order
There are several parts to most child support orders in almost all
jurisdictions. Child support orders are issued by courts when the
parents cannot agree on a fair child support payment and then incorporate
that agreement into a marital separation agreement. First and foremost,
the paying parent will almost always be ordered to make a monthly
money payment to the custodial parent. The order will typically read,
in part, as follows:
Father (name) is ordered to pay directly to mother (name) as and for
child support of Tom and Mary, the sum of $300 per month per child
for a total of $600, payable one-half on the first and one half on
the fifteenth day of each month, said payments to continue until each
such child shall die, reach majority, become emancipated or until further
order of court.
Notice the following about this portion of the child support order:
It Requires a Direct Monetary Payment to the Custodial Parent
Many paying parents resent the child support order because it is made
directly to the custodial parent and not the children. Because of
this, some refuse to make the payments because they 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 children, such as rent,
food, and clothes.
The Court Retains Jurisdiction to Change the Order.
A child support order is not set in concrete but is subject to change
should future conditions warrant. Thus, either parent may petition
the court to raise or lower support should conditions warrant.
Payments Automatically Terminate When the Child Reaches Majority,
Dies or Becomes Emancipated.
The purpose of this language is to provide for an automatic end to
the support obligation when the child reaches majority or dies. However,
the issue of emancipation is often in dispute and may require a court
determination.
Child Support Is an Enforceable Order of the Court
A child support order is as enforceable as any other court judgment
or decree. Thus, a parent who is not paid child support can use each
and every legal tool available to enforce the order, including wage
garnishments, wage assignments, contempt of court decrees and the
seizure of the non-payor's property by writ of execution.
The child support decree is not limited to an order of direct money
payments to the custodial parent. Other areas of providing for the
children's needs are also usually addressed. The following language
is an example of a typical child support order:
As and for additional child support, father (name) is ordered to maintain
his children as beneficiaries on his health and life insurance policies
available through his employment. Father is further ordered to pay
for one-half of all uninsured medical, dental and ophthalmologic services
provided for the children.
As and for additional child support, father shall pay directly to
the ABC Daycare Cooperative, the full cost of afternoon after-school
day care. However, should the children be enrolled in morning day care,
such expenses shall be the sole responsibility of the mother.
As and for additional child support, father shall
pay the round-trip plane and other reasonable costs of transporting
the children for visitation
with father, as provided in the visitation provisions of this order.
However, during visits of two weeks or more, the father's child support
payments to mother shall be reduced by $50 per month per child.]
These clauses illustrate the flexible nature of child support orders
and the wide latitude a court has in creating a support arrangement
it deems in the best interests of the children. (The court will try
to maintain the lifestyle the children enjoyed before the divorce if
the parents' finances permit.) Thus, a parent can be ordered to maintain
insurance for the benefit of children, pay medical bills, private school
expenses, day care costs, transportation bills, music lessons and to
pay or partially pay for other aspects of a child's day-to-day life,
activities and upbringing. The amount of support can also be reduced
should the non-custodial parent have physical custody of the children
for at least 35% of the time.
How the Court Determines the Amount of Child Support
Generally, child support payments are for the ordinary expenses of
food, shelter, clothing, education and medication needs for the children
only. In determining an award of child support, a court will look
at all relevant facts upon the following issues:
The Needs of the Children.
For example, a sickly or developmentally disabled child will often
require a higher level of support than a healthy child.
The Age of the Children.
Infants and younger children often cost less to support than older
children.
The Ability of the Non-custodial Parent to Pay.
The court is limited in awarding child support by the ability of a
parent to pay based on income from all sources.
The Earning Capacity of the Custodial Parent.
Both parents have the duty to support their children, not just the
paying parent. Thus, the earnings or earning capacity of the custodial
parent which are available to provide support for the children, and
perhaps that of their new spouse, will also be considered when determining
child support levels.
The Other Responsibilities of the Parents
The other lawful responsibilities of both parents will also be looked
into in determining child support. For example, if the non-custodial
parent is paying child support from a previous marriage (a rather
common occurrence), the court will take that obligation into consideration.
Necessities of life, such as rent and food will also be taken into
account by the court. However, the court will not reduce child support
payments to make it easier for the parent to pay discretionary obligations.
For example, a parent cannot provide for a charity or buy an expensive
car at the expense of providing for his or her own children.
To assist the court in determining the proper amount of support, both
parties will be required by the court to prepare a financial declaration
that is signed under penalty of perjury. Each parent will be required
to fully disclose their income (from all sources frequently including
money earned by a new spouse or live-in-lover), the nature and extent
of their property holdings such as bank accounts, investments and real
property and their financial obligations. The court will rely heavily
on these documents in making the order and thus it is in the best interests
of the children that the declarations be filled out completely and
honestly.
Child support hearings are often adversarial. That means that when
the parents cannot agree on the support order, (sometimes after completing
mediation), the court, through a Master's hearing, will hold a hearing
to decide the issue. (This is sometimes done in a chambers conference
to save time.) At the hearing, each spouse (or their lawyer) will have
the opportunity to cross examine the other on issues relevant to the
support issue and each can subpoena documents and call witnesses to
support his or her position as to the amount of child support that
should be paid. Child support orders can also be appealed, although
the likelihood of success is very slim.
In most states courts use statutory guidelines in all cases in which
child support is sought. Although use of the guidelines is mandatory
and there is a presumption that the guidelines amount is the correct
amount to be awarded, the presumption is rebuttable.
The mathematical computation to determine the Guideline amount is
fairly simple in almost all jurisdictions. A typical formula would
be:
1. Determine the gross monthly income of each parent.
a. Minus: alimony and child support paid to a third party and alimony
paid in this case;
b. Minus: medical insurance paid for the child;
c. Plus: alimony paid in this case
d. Equals the adjusted income.
2. Determine the percentage of each parent's adjusted income to the
whole.
3. Obtain the basic child support amount from the table
4. Add to the table amount (if relevant):
a. work related child care;
b. extraordinary medical expenses;
c. and educational expenses;
5. Equals the total support obligation
6. Divide the total support obligation according to the percentage
total for each parent which is the amount which is presumed to be correct
but which is rebuttable and may be overcome.
There is usually a separate formula for situations where the parents
share physical custody of the children.
Only the Proper Court Has the Power to Order Child
Support.
A court that does not have proper jurisdiction (power) does not have
the legal authority to order child support. In order for a court
to have jurisdiction to compel a parent to pay child support, it
must have personal jurisdiction over the parent. Personal jurisdiction
means that the parent from whom support is sought must have sufficient
contacts with the state in which the suit is brought.
A State that Entered a Valid Support Order Continues to Have the Power
to Modify Child Support.
Once a valid child support order is entered, that state continues to
have the power to award child support even though it no longer has
contacts with the supporting parent or children.
Parents Can Agree On the Level of Support.
Parties frequently settle divorce or paternity cases between themselves
without going to trial. Parties may include in their settlement agreement
an amount of child support to be paid by the non-custodial parent
to the custodial parent. However, even when the parties agree to
an amount of child support the trial court is required under the
guidelines to determine the guideline amount, compare it with the
amount of support agreed upon by the parties, and not make an award
less than the guideline amount unless convinced that award of less
is in the best interest of the child. There can be no variance of
the guideline amount if the court does not give its reasoning on
the record in accord with the requirements of the law.
Hugh and Lucy divorced. In
a marital settlement agreement, they agreed that Lucy would have
custody of the children. However, Hugh would only
agree to pay $50 per month in child support, despite the fact he earned
$2000 a month. Rather than fight Hugh, who had threatened a custody
fight if she would not accept the deal, Lucy agreed to the low support
level. When Lucy and Hugh brought their "agreement" before
the Master, the Master refused it because the support level was too
low.
Courts Can Order Payment of College Expenses Even Though the Child
Has Reached Majority.
At one time, majority was reached at age 21. When it was reduced by
law to age 18 in many states, a new problem was presented: Could the
court order a parent to pay for his or her children's college expenses
as child support, despite the fact that they would be over 18 when
the payments were made? In most states, that question has been answered
in the affirmative - if the parent has sufficient resources - although
the courts are not required to make such orders.
Child Support Is Not Tax Deductible
Unlike alimony , payments of child support cannot be deducted from
the payer's income taxes. However, you pay more than 50% of the actual
costs of child support, you can claim the child as a dependent to
save money on taxes. Parents often agree on the issue of the dependents
deduction so that both don't make the claim which could trigger an
IRS audit.
Modifying Child Support
The court that makes the original child support award is said to have
continuing jurisdiction to modify the order as conditions warrant.
That being so, either parent may request the court to change the
order throughout the duration of the child's minority. Modifications
will not happen automatically. One of the parents must request the
change by a formal motion to the court.
Child support orders cannot
be changed on caprice or because a court thinks that "it is time." It
must be based on evidence proving that sufficient grounds exist to
make the change. This usually requires
a showing of changed circumstances in almost all jurisdictions from
the facts as they existed at the time that the last order was entered.
(In the many years a child support order remains effective, the parent's
circumstances may change many times and thus so may the child support
order.)
Many different scenarios can create changed circumstances. For example,
if the paying parent has had a large increase in income, the court
can order the child support increased. Or, if the child's needs grow,
such as if the child becomes ill or disabled, the amount of support
can be ordered raised. Sometimes the mere passage of time creates the
changed circumstances. For example, as a child grows older, it becomes
more expensive to buy clothes, food and other necessities. These increased
expenses can be enough to justify a raise in the support order.
Support can also be reduced upon a proper showing. For example, if
the custodial parent inherits money, gets a large raise or otherwise
has an increased ability to support the children, support payments
may be reduced. Or, if the paying parent loses his or her job, the
court can be asked to reduce support during the period of unemployment.
A mistake many parents make is to reach informal oral agreements modifying
child support. This often provides the seed for future discord. For
example, the following scenario is very common:
Peter paid his former wife
Alice $400 a month to support their son. When Peter was laid off,
he called Alice and said, "I just got
laid off. I can't afford to pay $400 right now." Alice responded, "Okay.
Pay $100 for now."
Ten months later, Peter was rehired and raised his support payments
back to $400. During his layoff, Peter had made 10 payments of $100.
Alice called and told Peter she expected him to pay the $3000 he had
not paid during the layoff. Peter replied that he did not owe the money
because they had agreed to the child support reduction during his layoff.
Alice disagreed. She claimed that she had not given up the right to
$400 a month but had merely permitted Peter to defer full payment until
he was rehired.
When Peter refused to pay, Alice took him to court. The judge ruled
that the evidence did not support Peter's claim that he was excused
from $300 per month of his support during his layoff and he was ordered
to pay the $3000 to Alice at the rate of $100 a month, in addition
to the usual payments of monthly support.
The problem with oral agreements is that they are
often vaguely worded and the memories or understanding of the parties
may often differ.
Thus, any agreement by parents to modify child support should be put
in writing so that there are no misunderstandings later on. It is also
a good idea to have a judge sign a court order based on the agreement.
Enforcing Child Support
A major headache for custodial parents, children and society is created
when a parent refuses to pay his or her court ordered child support.
This is a serious problem of national dimensions. A recent study
found that less than half the parents awarded child support receive
payment in full. In 1989 alone, $4 billion dollars that was owed
in child support was not paid. This failure on the part of non-custodial
parents - usually but not always fathers - is a major cause of poverty
in children. This not only affects the families but has an indirect
impact on the society who must finance poverty programs to assist
those in need.
Every state has established a child support enforcement agency that
can assist you in collecting child support from your spouse. This agency
has responsibility for collecting child support for families receiving
public assistance, and also, upon application for non-public assistance
families. Applicants for public assistance must assign child support
rights to the state and must help locate the parent absent from the
home. Failure to cooperate may result in the denial of public assistance.
In almost all states, services are available to Non-public assistance
parents by the payment of a non-refundable $20 fee. If you are representing
yourself, and you are not on public assistance, applying to the child
support agency in your county for assistance is an excellent method
of obtaining legal representation at minimal cost (payment of $20.00
fee).
The custodial parent has many tools available to enforce child support
orders, all of which should be considered if payments are not being
made:
Use the Government's Parent Locator Service
Nonpaying parents often hide from the custodial parent in order to
avoid their child support obligation, often going so far as to move
out of state to avoid their responsibilities. Such abandonment has
caused many parents to go on welfare.
In order to remedy this problem, the federal government has created
the Parent Locator Service, which allows the resources of the federal
government including the Social Security Administration and the Internal
Revenue Service, to be used to locate a nonpaying parent's employer.
Once found, the custodial parent or the state can enforce the child
support order and collect unpaid support. The law also permits the
IRS to pay child support arrears from tax refunds the nonpaying parent
may be owed by the government. (The law also requires the states to
establish a Parent Locator Services.)
Obtain a Wage Assignment
Many states allow the court to order an employer to make direct payments
to the custodial parent from the wages of the supporting parent.
This procedure is known as a wage assignment. The wage assignment
can be issued upon proper application by the court and served on
the paying parent's employer. Once implemented, the employer will
deduct child support like any other deduction from the paying parent's
paycheck and send the money directly to the custodial parent. This
is a very valuable tool - if the nonpaying parent holds a steady
job.
Request a Writ of Execution
A child support order can be enforced like other court judgments. If
the nonpaying parent has assets such as real property, bank accounts,
stock, a paid-off car or other property, the property may be seized
upon proper application to the court. If you choose to represent
yourself, you will find form books in your local law library that
will have the proper wording of the documents and will explain the
procedure for applying for a contempt of court citation, wage assignment,
or writ of execution in your state. If this method of enforcing child
support is chosen, a pro se litigant is well advised to retain the
services of a competent attorney or pursue enforcement through the
State Child Support Enforcement Administration.
If the pro se litigant chooses to forward on his or her own the litigant
should be aware that all states provide a wide variety of means to
execute on judgments (defined as a dollar amount which has been reduced
to a judgment by the court).
Bring a Civil Contempt of Court Action
If a person willfully disobeys a lawful child support order, he or
she can be jailed for contempt of court. The civil contempt action
is brought by the custodial parent. The court clerk will have the
proper forms. After that, the nonpaying parent will have to be served
with process since he or she has the Constitutional right to appear
at the hearing and present a defense. If the nonpaying parent is
served with process and does not appear, the trial court will order
a bench warrant issued for his or her arrest.
If the court finds beyond a reasonable doubt that the parent has willfully
failed to pay pursuant to a valid child support order, the court can
order the nonpaying parent jailed. (A parent who can show that they
did not have the ability to pay will not be found in contempt of court,
even though he or she will continue to owe the money.)
Often, the mere threat of jail is sufficient to pry open the recalcitrant
parent's pocketbook. However, in severe cases, parents will be jailed
and often the jail sentence will be open-ended, terminating only when
the proper payment has been made.
Seek a Criminal Prosecution
All states also have criminal statutes on the books to punish parents
who refuse to pay their child support. If the custodial parent complains
to the district attorney's office, it may seek an indictment against
the nonpaying parent in criminal court. If the defendant is found
guilty, he or she may be jailed. Or, the guilty parent may be put
on probation and allowed to remain free if he or she pays all back
child support and makes all future payments in a timely manner.
GEORGIA'S CHILD SUPPORT GUIDELINES
The child support guidelines in Georgia are based on the gross income
of the non -custodial parent. The guidelines provide a range of percentages
that represent the percentage of the non-custodial parent's gross income
that must be paid to the custodial parent for the support of the child
or children.
The guidelines provided the following ranges:
One child = 17-23 %
Two children = 23-28%
Three children = 25-32%
Four children = 29-35%
Five or more children = 31-37%.
The court has discretion in setting the percentage within the range
or even deviating from the guidelines. In setting the percentage, the
court can consider the age of the child, the cost of day care, the
cost of the education of the child, the custodial parent's income,
and whether there are children from other prior marriages or relationships.
The child support guidelines apply to both divorce and paternity actions.
Orders providing for the support and custody of children
are subject to modification after the divorce if there is a substantial
change
in the circumstances of the parties i.e. an increase or decrease in
income or a change in the living arrangements of the children.
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