CHILD SUPPORT – WHAT YOU NEED TO KNOW
The State of Maryland feels very strongly that each parent has a legal obligation to provide material support (read that as money) for their children. If you are a parent, the Court and the State may require you to provide a regular monetary payment for your child. Every decision involving children of divorce is made based on what the court finds is in the best interests of the child. That is a loose standard and a lot of factors can come into play. The state wants it that way. They want to give Judge's the flexibility to make the right decision. According to the state, it is always in the best interest of every child to benefit from their parent's income.
If you have children and you are not together with the other parent, you can be subject to paying child support. There are some basic things that you need to know about child support, and we will try to provide a good overview in this article. Please be aware this is a VERY basic overview of a very complicated topic. In order to completely understand this issue, you will need to consult a lawyer. Every case is different and you need to know what the Court will do in your unique situation.
WHAT ARE CHILD SUPPORT GUIDELINES?
Since 1990 the State of Maryland decided that child support should be standardized. They wanted people in similar situations to pay the same amount for their children. Child Support Guidelines were born, and they are mandatory. You cannot escape them if you have a child support case in Maryland.
This does not mean calculating child support is simply a math problem. You can argue all day long about what figures should go into calculating the end result. You can ask the Court to ignore certain income, or include certain other income. You can argue that you have certain extraordinary expenses they should consider, or that you already pay certain money directly for the child and the Court should factor that in. You can also argue for deviations from the guidelines, either for more or less child support.
But no matter what, your argument will always center around those official Child Support Guidelines. The Court will base their decision on them. The Child Support Guidelines are a way for every Court in every county in Maryland to uniformly calculate an amount of child support.
I HEARD CHILD SUPPORT GUIDELINES JUST CHANGED? HOW?
Yes. In 2010 the Maryland legislature changed the child support guidelines. As you might expect, the amount most people have to pay went up. The State says most child support obligations set after October 2010 will go up by about $50 to $75 per month for the average person. However, for some very low income individuals, the change may result in paying less child support.
Some people are shocked at that, but the State has decided that it is better for very low income individuals to pay their full support obligation as opposed to always falling behind. The Legislature is worried that setting that obligation out of reach often forces some people not to pay at all. They may abandon the entire obligation instead of paying what they can. Will this work? It is a decision the legislature has made, and only time will tell.
HOW IS CHILD SUPPORT TIED INTO CHILD CUSTODY?
In creating and using the Child Support Guidelines, the state tied the calculation of child support together with child custody. What type of custody you have, and how often you see your child, can factor into how much money you pay or get in child support.
The first thing to do in calculating child support is to figure out what type of child custody you have with the other party. The Child Support Guidelines looks specifically at the type of physical child custody the parents have. Parents can either have sole physical custody or joint/shared physical custody. Once that has been established, child support can be calculated. (For more information about the types of Child Custody see our article What You Need to Know About Child Custody, which explains the various types of custody and what they mean.)
The Child Support Guidelines provide two different ways to run the calculations. If the parents are found to have joint/shared physical child custody, the amount of child support the non custodial parent pays will be lower. If one parent has sole physical child custody, the amount of child support paid will be higher.
The reason for this difference in child support is because if one parent has sole physical child custody, it makes them the custodial parent (Parent A). This means the child spends most of their time with them. The custodial parent is therefore usually the parent that has to pay for everything. If one parent has sole physical child custody, the non-custodial parent (Parent B) would have to balance this out by paying more money.
It may not matter what you call your type of custody either. The Court will look beyond that. One way the Court decides whether the parents already have either joint/shared or sole physical custody is by what they have been doing in their daily lives already. This is what I call the Magic 128.
Let me explain: In order to figure out which calculation to use, the Court looks at the amount of time the child spends with each parent. If no formal Child Custody determination has been made, the Court will look at the visitation schedule being used by the parents. If the child is spending 128 overnights with the non-custodial parent (Parent B) then the Court will use the joint/shared physical child custody calculation.
However, if the Court finds that the child is not spending at least 128 overnights with Parent B, then the Court will use the sole physical child custody calculation, which will make Parent B's child support payments higher.
128 overnights is a little more than one-third of the calendar year, which is why this number is magical. If your child spends at least one-third the year with each parent, the Court will call your custody joint/shared, regardless of what you call it. If they don't quite spend that much time, they will call one parent the custodial parent and the other will be non-custodial and have a higher child support payment.
This is only one factor that the Court looks at to see if joint/shared physical child custody is the right thing, (in the best interests) of the child. The other factors that the Court looks at are addressed more in the Article What You Need to Know About Child Custody.
For all of the factors, and the various ways this can play out in Court, you need to talk to a lawyer. Each case is different, just as each family is different. Something that might seem normal to you and your family's situation may seem like a disputed issue for the Court. A lawyer can really help you understand what the Court sees as red flags, and what they are likely to do with them.
HOW IS CHILD SUPPORT CALCULATED?
Whether you have sole physical child custody or joint/shared physical child custody, the Court will take into account many factors when calculating your actual child support payment. To explain each of the factors in detail would take up many, many pages. This is just a general overview.
Not all of the factors may apply to your particular situation, and each factor has its own requirements. We must stress that this is not an easy thing to do on your own. You should at least consult with an attorney to discuss the details of these factors before you go into Court. But here are the basic factors the Court will look at when deciding how to calculate child support:
- Monthly combined income of the parents before taxes
- Payments of Child Support made by either parent for children who are not between the parties to this case.
- Payments of Alimony made to ANY previous spouse
- Payments for Health Insurance by either parent
- Extra-ordinary medical expenses for the child
- Work-related child care expenses (day care/after care, etc.)
- Reasonable and necessary educational/transportation expenses (this is a factor that has to be proven and is only included on a case-by-case basis it is not automatic)
The Court will make a decision about any of these issues if you raise them. Once all the factors have been analyzed and considered, the Court will use the Child Support Guidelines to decide on how much support should be paid for the child, and will calculate the percentage each parent is able to contribute to the child's total support payment.
The Court uses a complicated calculator and a lawyer can help to explain exactly how the calculations are done. The parent who is able to contribute more is often ordered to do so. Don't forget that the final number also depends on who has the child more often (remember that Magic 128" from above).
Each of the different factors have to be proven through testimony or documentation. You have to have good evidence that you can present to the Court, and the calculations will only reflect what you can prove. So if you claim to pay $5,000 in medical insurance but cannot prove it when you get to Court, the Court will not use that expense in their calculation.
In fact, you may lose credibility with the Court if it appears you are trying to mislead them. Misleading the Court is never a good idea, and may land you in jail. Be sure to have proof of any claims you plan to make if you go into Court (for Child Support, and anything else for that matter).
HOW CAN I MODIFY CHILD SUPPORT IF CIRCUMSTANCES CHANGE?
A child support order can be modified later on if one or both parties have a change in their financial situation. However, you cannot just go to Court every time you or your ex gets a little more money. Getting a normal raise, or an extra Christmas bonus from your boss, will not necessarily affect your child support order.
In order to modify an already ordered amount of child support, there is a hurdle for the person asking for the change. That hurdle is called a Material Change of Circumstances. This is a specific legal term which has specific legal meaning. Everyone experiences a change of circumstances from time to time. But only a material change of circumstances will be enough to trigger a modification of child support.
There are two requirements for the Court to find that a Change of Circumstance is material enough to change a child support order. (1) The change must tie into the actual amount of child support. It must be something the court will consider when using the Child Support Guidelines. This means it has to affect one of those factors listed above. (2) The change must be enough of a change to justify a modification.
The Court will not allow you to come back every time there is a small change in the amount of child support which should be ordered. An extra few bucks per month may be a lot to you, but the Court has to set some barriers to coming back in for a hearing. Otherwise, they would be hopelessly clogged. Therefore, the change in circumstances must be enough that the child support order is substantially changed.
So how much is enough? Unfortunately, this is something we cannot tell you precisely in an online article. It varies for each situation and depends on how all of those factors mentioned above are playing out in your situation at that moment. If you think you may have a change that should affect your child support order, you should at least get a consultation with an attorney.
You may have heard a rule of thumb that says a modification is only available if your support payment will change by 25%. That is a guideline used by the Department of Social Services when they claim a change in support is warranted. It is not contained anywhere in the law and is not binding on a court. There is no set percentage change, or dollar amount of change, that will trigger a modification of child support. The Court will do what they believe is the right thing to do and what is in the best interests of the child. This is (yet another) good reason for you to get a consultation with an attorney if you have any issue regarding child custody or support.
How do you prove your change in circumstances? By testimony and/or documentation. The Court will not, on its own, modify the amount of child support ordered. The person seeking the change must make an affirmative effort to have the Court hear the case, and they have the burden of proving the change is justified. If you are trying to get a support order changed, the Court is going to look to you for proof. You have the burden of producing good evidence the Court will accept and use as the basis for their decision.
Each case is individual, to help you better understand it is best to contact an attorney who can walk you through the process. I know we keep repeating it, but we do it for a reason. This stuff is complicated. It just is. If you don't have enough money to hire a lawyer to do it for you, you really should at least have a consultation with an attorney before going into Court. Most lawyers charge a small fee (usually $50 to $100) to meet with a client. In that meeting, you can ask questions, and the attorney can walk you through the steps you must take to prove your claims about child support. It is money well spent.
One last tip about modifications of child support: if there is any modification of child custody be sure that the Court will look at the child support too. Modifications of child custody often result in a different child support calculation, so be prepared to prove your income and expenses (the factors above) if you are going to Court to modify child custody.
AGREEMENTS ON CHILD SUPPORT
In most areas of life, you can make agreements with other people and the Court will enforce them. That is not always true if the agreement concerns your children. The Court will always be willing to take a look at issues concerning children in order to determine what is in the best interests of the child. This includes the amount of child support one party must pay.
The Courts have made it very clear that a parent cannot bargain away their child support obligation. You cannot say something like, I'll pay you X amount of money to never ask for child support. Even if an agreement like that is made outside of the Court, the Court has the power to ignore it and set a child support order anyway. So don't make a deal like that.
However, if the parties are able to come to a reasonable agreement on child support, the Court may be willing to approve it and enforce it. The Court will take a good, hard look at your agreement, to make sure that the agreement is not unfair to either parent, and to make sure it is in the best interests of the child.
But your agreement will never be binding on the Court. They must approve it first. If the Court has reasons for not accepting the agreement, the parents may have to accept the Child Support Guideline amount instead.
Having a lawyer work out an agreement can make going through court much easier, and will make it more likely your agreement is accepted. Courts are more inclined to trust a lawyer in this situation, as parents often forget things or miss something that is very important. All lawyers are officers of the Court and will get in trouble if they lie or mislead the Court. The Judges know all of us and our reputations. That is one of many reasons that you want a reputable lawyer, and not the shark that will fight unnecessary battles in order to run up the bill.
DEVIATING FROM THE GUIDELINES
Although the Child Support Guidelines are important, they are not iron clad. The Court can deviate from the amount designated in the Child Support Guidelines. However, they don't like to do that and it is sort of frowned upon by the higher state courts. So if a Court does deviate from the Child Support Guidelines, it gives the losing party good ammunition to file an appeal.
In order to deviate from Child Support Guidelines, the Court must explain its decision in detail. It must have very good reasons for doing so. However, each case is different and a Court may find it is right to deviate from the Child Support Guidelines in your particular case. It all depends on the situation. You may go into Court assuming the child support payment will be X, and come out with something totally different. The Court has the power to ultimately do what it thinks is right, and what is in the best interests of the child.
Scary huh? Not to be a broken record, but a lawyer can help you navigate the issues.
PAYING CHILD SUPPORT
Child support can be paid voluntarily, but in most situations the custodial parent (who gets the support payments) will insist on a wage garnishment and payment through the Child Support Enforcement Administration. That is a state agency which is charged with enforcing child support payments by doing things like garnishing your wages, so it comes to them without anyone having to remember to write a check and pay the bill. Expect this to happen if you are required to pay child support.
Child support payments are not conditional on visitation. This is something that we hear a lot from both parents. If you do not use the visitation that has been allowed by the Court or you are denied the visitation ordered by the Court you cannot, CANNOT, stop paying child support. It doesn't matter if you actually see your child, the State of Maryland says you still must support your child.
If you stop paying child support without a Court order telling you, then you leave yourself open to a world of trouble. You could face contempt charges, prison time, and having to pay child support arrears (child support you missed). So, no matter how much visitation you have or how mad you are at the other parent if you are ordered to pay child support, do not stop paying. You are only shooting yourself in the foot if you do.
Many parents find that they absolutely hate paying child support to the other parent. It is understandable, especially if the other parent does not seem like they are using the money for your child. We hear this all the time, and so does the Court. It is not likely to hold any water with any Judge in the State of Maryland.
The Court will tell you that the money you pay allows the other parent to pay for things like rent, food, clothes, utilities and gas so that they continue to provide a place for themselves and for your child. If they were not able to provide a place for themselves, then the child would go without. You might say to yourself, I pay for my child, or I take care of my child when they are with me. But if the other parent can't pay rent, your child also suffers.
So, don't think of it like paying the other parent, think of it as making sure you are taking care of your child. Even if your ex gets the benefit of the money too, the Court is going to only look at what is best for the child.
HOW A LAWYER CAN HELP
This is complicated stuff. There is no way to get around that fact. Figuring out how child support is calculated requires being familiar with the Child Support Guidelines, all the factors that go into those calculations, and being familiar with what the Court is likely to do with your argument when you get there. An attorney can be an obvious help in answering these questions and arguing your case for you in Court.
However, if you cannot afford to hire a lawyer and decide to go it on your own, do yourself a really big favor. At least get a one time consultation with a lawyer who can go over the unique facts of your case, walk you through the details of the child support calculations, and help you decide what to ask for when you get into Court.
Most lawyers charge a small fee (usually $50 to $100) to meet with a client. We do that in this office. In that meeting, you can ask questions, and the attorney can walk you through the steps you must take to prove your claims about child support. It is money well spent, and can potentially save you from years of misery.
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Andrews, Bongar, Starkey & Clagett, P.A.
Southern Maryland Attorneys
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Waldorf, Maryland 20603
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Lexington Park, Maryland 20653
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