|
An unfortunate fact of economic life is that a family divided cannot live as cheaply as if the family stayed together. After a divorce or separation of a family, the living standard of the entire family is often lowered.
Both parents have a legal duty to support their child based to their ability to provide that support.
Since 1990, Maryland has had child support guidelines that provide a formula for calculating child support. These guidelines are applied unless someone can show that the guidelines would be unjust and inappropriate in a particular case. The Child Support Calculator can be used to calculate your child support obligation.
When Courts Get Involved
During a marriage or committed relationship, support is rarely a concern for the court. But when parents divorce or stop living together with their children as a family, the courts often become involved. The court is often required to decide how much support the non-custodial parent must pay. Like custody, the amount of support can be decided by agreement or by fighting it out in front of a judge.[fn.1]. You can avoid making child support a contested issue, and the legal expense of litigating this issue before a Master or a Judge. Both parents can agree to the appropriate amount of child support and make this agreement part of a marital separation agreement. Child support payments, like alimony, may be incorporated into the divorce judgment or included in a marital separation agreement.
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 custodial parent. [fn.2] The order will typically read, in part, as follows:
"Father (name) is ordered to pay directly to mother (name) 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."
3 Important points to notice about this portion of the child support order:
It Requires a Direct Money 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. Some see it as a form of alimony. However, this is not true. [fn.3] The direct payments are to be used to pay for the vital needs of the children, such as rent, food, and clothes.
The Court Keeps the Authority (Retains Jurisdiction) to Change the Order - A child support order is not set in concrete. It can be changed if conditions change substantially in the future. Either parent may later ask the court to raise or lower support (see below).[fn.4]
Payments Automatically End When the Child Reaches Majority, Dies or Becomes Emancipated - The purpose of this language is to automatically end the support obligation when the child reaches majority (age 18 in Maryland) or dies. However, the issue of emancipation is often in dispute and may require the court to decide. Note: If you are making payments through the Child Support Enforcement Office, you need to file a modification to ensure that no arreages (past due support) pile up.[fn.5]
Child Support Can Be More Than Just A Check
The child support decree is not limited to an order of direct money payments to the custodial parent. The order often addresses other needs. Here is some sample language in a 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." [fn6]
"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." [fn.7]
"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." [fn.8]
These examples show how flexible child support orders can be. The court has many choices in creating a support arrangement it thinks is best for the children. (The court will try to maintain the lifestyle the children enjoyed before the divorce if the parents' finances permit.) [fn9] 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. The amount of support can also be reduced if the non-custodial parent has physical custody of the children for at least 35% of the time.[fn.10]
Determining the Amount of Child Support
How Child Support Payments Are Calculated
Generally, child support payments are for the ordinary expenses of food, shelter, clothing, education and medication needs for the children only. In determining child support, a court will look at all the following issues:
The Needs of the Children - For example, an ill or developmentally disabled child will often require a higher level of support than a healthy child. [fn.11]
The Age of the Children - Infants and younger children often cost less to support than older children. However, daycare costs, which can be significant, will also be taken into account. [fn.12]
The Ability of the Noncustodial Parent to Pay - The court will look at income from all sources when it decides on the amount of child support. Generally your ability to pay does not include calculations of bills and debts such as car payments, credit cards, etc. If the non-custodial parent marries again, the court will usually not look at the new spouse's income. However, there are some exceptions. The court will consider a new spouse's income if one of the following occurs:
(1) The parent paying the child support claims that s/he is unable to pay because of debts.
(2) "Voluntary Impoverishment" - The court may look at a new spouse's income if the custodial parent claims that the parent who owes
the support has left a job voluntarily in order to avoid paying child support.
(3) There is a claim that the parent paying child support is hiding assets. [fn.13]
The Earning Capacity of the Custodial Parent - Both parents have the duty to support their children, not just the paying parent. The court will also look at the earnings of the custodial parent. In particular the court will look at the resources which are available to support the children. The court may also look at your capacity to earn more money. The court may also consider the income of a new spouse when determining child support levels.[fn.14]
The Other Responsibilities of the Parents - The court will also look at the other lawful responsibilities of both parents. For example, if the
no custodial parent is paying child support from a previous marriage, the court will consider that obligation also. Necessities of life, such as rent and food will also be considered by the court. However, the court will not reduce child support payments to make it easier for you to pay discretionary obligations. For example, a parent cannot buy an expensive car instead of providing for his or her own children. [fn.15]
You Must Prepare A Financial Declaration
To help the court to decide the proper amount of support, both of you will be required to prepare and sign a financial declaration. (See financial forms)[fn.16] . Each parent will be required to fully disclose their income (from all sources). This may include money earned by a new spouse or live-in-lover. You will also need to describe your property holdings such as bank accounts, investments and real property. You and the other parent must also list your financial obligations. The court will rely heavily on these documents in making the order. It is important that you fill out all the forms completely and honestly. You could be charged with perjury if you lie on these forms. Most importantly, the purpose of the forms is to help the court make a fair decision for the benefit of your child(ren).
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 their 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 Guidelines
In 1990, the Maryland General Assembly passed a law requiring the courts to use Child Support Guidelines in all child support cases.[fn.17] The Guideline's amount is the correct amount. However, you can argue that the Guidelines amounts are wrong. First you must complete the Guidelines and show the amount. Then you can then explain your concerns in the comments section of the Guidelines.
Parents cannot agree to not support their
children. The General Assembly decided that "the law and policy of this State is that the child's best interest is of paramount importance and cannot be altered by the parties. A parent has a legal obligation to provide support for the child [in proportion to their gross earnings]." [fn..18]
The math to determine the Guideline amount is fairly simple. The Legislature provided a form which must be followed[fn.19] The Child Support Calculator follows the Guidelines and is an easy way to avoid doing the math yourself. However, here is an overview for those who are interested.
1. Determine the gross monthly income of each parent.
- Minus: preexisting alimony and child support paid to a third party
- Minus: medical insurance paid for the child;
- Plus: alimony received in this case
- Equals the adjusted income.
2. Determine the percentage: (Divide the mother's Adjusted Income by the Combined Total Adjusted Income,. Divide the father's Adjusted Income by the Combined Total Adjusted Income.)
3. Obtain the basic child support amount from the table
4. Add to the table amount (if relevant):
- work related child care;
- extraordinary medical expenses;
- and educational expenses;
5. Equals the total support obligation
6. Multiply the total support obligation by each parent's percentage share of income (line 2). This is the presumed correct amount of child support.
There is a separate form for situations where the parents share physical custody of the children. [fn.20]
Which Court is Appropriate?
Only the Proper Court Has the Power to Order Child Support - 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 Maryland. [fn.21] . A court that does not have proper jurisdiction (power) does not have the legal authority to order child support.
A State that Entered a Support Order Has the Power to Change it - 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.
You Can Agree On the Level of Support
Many people settle divorce or paternity cases between themselves without going to trial. You may include support in a settlement agreement. However, even when you agree to a child support amount, the Guidelines require the court to calculate the amount using the Guideline amount. The court then compares it with the amount of support you agreed upon. The court will not make an award less than the Guideline amount unless the court is convinced that award of less is in the best interest of the child.[fn.22] The court cannot order a support amount that is different from what the Guidelines dictate unless the court gives its reasons "on the record."
Example:
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.
Endnotes
1. The use of child support guidelines is a legislative mandate that parents should contribute to the support of their children in proportion to their gross earnings with noted exceptions. Even when parents agree to any amount of child support it is incumbent upon the trial judge to determine the guideline amount, compare it with the amount of support agreed upon by the parents, and not make an award less than the guideline amount unless convinced that award of less is in the best interest of the child. See Walsh v. Walsh, 333 Md. 492, 504 (1994); Shrivastava v. Mates, 93 Md. App. 320, 327 (1992). The reasoning behind the guidelines is that a child should receive the same proportion of parental income and enjoy the same standard of living that child would have experienced had the parents raised the child together in a cooperative effort. See e.g. Voishan v. Palma, 327 Md. 318, 322-23 (1992); Bagley v. Bagley, 98 Md. App. 18 (1993); Goldberger v. Goldberger, 96 Md. App. 313 (1993); and Tannehill v. Tannehill, 88 Md. App. 4, 11 (1991).
2. Section 12-101 et. seq. of the Maryland Family Law Article provides the court with the power to order an award of child support to the custodial parent. Note that §12-204(a)(1) of the Maryland Family Law Article provides "the basic child support obligation shall be divided between the parents in proportion to their adjusted actual incomes." While both parent's contribute financially to the support of the children, the non-custodial parent pays the court-ordered amount to the custodial parent.
3. See §12-204(2)(i) & (ii) of the Maryland Family Law Article which makes clear that alimony is separate and distinct from child support.
4. See §1-201(b)(3)&(4) of the Maryland Family Law Article which provides "(b) ...support of child-In exercising jurisdiction over the...support of a child, an equity court may...(3) decide who shall be charged with the support of the child,
pendent lite or permanently; (4) from time to time, set aside or modify its decree or order concerning the child..." See also Reese v. Hubschman, 50 Md. App. 709, cert denied, 293 Md. 547 (1982) ("it is...well-settled in this State that a court of equity may upon proper petition to do so modify a decree for...child support at any time if there has been shown a material change in circumstances that justifies the action."); Cole v. Cole, 44 Md. App. 435 (1979); and Lott v. Lott, 17 Md. App. 440 (1973).
5. Payments terminate when child reaches majority, dies or becomes emancipated.
6. A child support order may be enforced in the following ways:
a. Use of Government's Parent locator service: resources of federal government including Social Security Administration and the Internal Revenue Service can be used to locate non-paying parent via an employer. Once found, the custodial parent or state can enforce the order and collect unpaid child support. The law also permits the IRS to pay child support arrears from tax refunds the non-paying parent may be owed by the government.
b. Wage Assignment: the court can order an employer to make direct payments to the custodial parent from the wages of the non-paying parent.
c. Request of writ of execution: property can be seized upon proper application to the court.
d. Civil Contempt: Civil contempt is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. The penalty in civil contempt must provide for purging. Purging is where the
contempt or hold the key to the prison in his or her own pockets as it were. Payment of child support arrearages is the key.
e. Criminal Prosecution
f. Uniform Enforcement of Support Act: this permits a party to complain to the local district attorney about unpaid child support by a parent who lives out of state. The local district attorney can then contact a district attorney in the locale where the non-paying parent lives. That office can then bring an action to enforce the order.
7. See §12-102 of the Maryland Family Law Article which provides "the court may include in any support order a provision requiring either parent to include the child on the parent's health insurance policy if: (1) the parent is covered by a health insurance policy; and (2) the child can be included on the policy at a reasonable cost to the parent.
8. See §12-204(g) of the Maryland Family Law Article which provides that child care expenses shall be added to the basic obligation. Child care expenses should be determined by actual family experience, unless the court determined that is not in the best interest of the child, or if there is no actual family experience or actual family experience is not in the best interest of the child, the level required to provide quality care from a licensed source, or the actual cost of the child care expense. See also Krikstan v. Krikstan, 90 Md. App. 462 (1992).
9. See Voishan v. Palma, 327 Md. 318, 322-23 (1992) in which the court found, "the conceptual underpinning of this is that a child should receive the same proportion of parental income and thereby enjoy the standard of living he or she would have experienced had the child's parents remained together".
10. See e.g. Tannehill v. Tannehill, 88 Md. App. 4 (1991), Lieberman v. Lieberman, 81 Md. App. 575 (1990); §12-201(h) (medical expenses); Ruppert v. Fish, 84 Md.App. 665 (1990); Holston v. Holston, 58 Md.App. 308 (1984) (private school expenses); Krikstan v. Krikstan, 90 Md. App. 462 (1992) (day care costs); §12-204(i)(2) of the Maryland Family Law Article (transportation bills).
11. See §12-204(h) of the Maryland Family Law Article which provides for additional support for extraordinary medical expenses including uninsured, reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, treatment for any chronic health problem, and professional
counseling or psychiatric therapy for diagnosed mental disorders.
12. See §12-204(g) of the Maryland Family Law Article which provides that child care expenses shall be added to the basic obligation. Child care expenses should be determined by actual family experience, unless the court determined that is not in the best interest of the child, or if there is no actual family experience or actual family experience is not in the best interest of the child, the level required to provide quality care from a licensed source, or the actual cost of the child care expense.
13. See §12-201(b)&(c) of the Maryland Family Law Article which defines "income" and identifies the various sources of income which may be considered in determine the non-custodial parent's ability to pay child support.
14. See §12-204(a)(1) of the Maryland Family Law Article which provides that "the basic child support obligation shall be divided between the parents in proportion to their adjusted actual incomes."
15. See §12-201(d)(1) of the Maryland Family Law Article (preexisting child support obligations); §12-201(d)(2) of the Maryland Family Law Article (alimony or maintenance obligations actually paid); 12-201(d)(3) of the Maryland Family Law Article (health insurance for the child).(Cases?)
16. Dom. Rel. 31 Financial statement for child support.
17. See §12-201-12-204 of the Maryland Family Law Article.
18. Shrivastava v. Mates, 93 Md. App. 320, 327 (1992)
19. See §12-203 of the Maryland Family Law article.
20. See §§12-202,12-204 of the Maryland Family Law article.
21. See Taylor v. Head, 323 Md. 546 (1991).
22. See Walsh v. Walsh, 333 Md. 492 (1994)(a trial judge is not to be a rubber stamp to anything to which the parties agree, rather the trial judge must use the child support guidelines and when approving and incorporating into a court order an agreement containing a downward deviation from the guidelines, the record should reflect the judge's reasons for doing so).
23. See Correy v. O'Neil, 105 Md. App. 112 (1995)( parents may contractually obligate themselves to support a child for a longer period and that agreement is enforceable by the court); Quarles v. Quarles, 62 Md.App. 394 (1985); Kramer v. Kramer, 26 Md.App. 620 (1975)(father is obligated to pay child support for the minor children until age 21 and is obligated to pay the cost of the child's college education).
24. See Wassif v. Wassif, 77 Md.App. 750 (1989)(the custodial parent may be ordered to execute the necessary waiver of a dependency exemption in favor of a non-custodial parent who is paying child support).
25. See §12-104 Of the Maryland Family Law article. See e.g. Lott v. Lott, 17 Md.App. 440 (1973)(a ground for modification is that there has been a substantial change in the financial conditions of either one of the parents since the original award). See also Carroll Cty. Dep't of Social Services v. Edelman, 320 Md. 150 (1990), Tannehill v. Tannehill, 88 Md.App. 4 (1991), Rupert v. Fish, 84 Md. App. 665 (1990), Lieberman v.Lieberman, 81 Md.App. 575 (1990), Reese v. Huebschman, 50 Md.App. 709, cert denied, 293 Md. 547 (1982), Cole v. Cole, 44 Md. App. 435 (1979).
26. See §10-101 et. seq. of the Maryland Family Law Article which set forth means by which an individual may seek an earnings withholding order. In U.S. v. Williams, 279 Md. 673 (1977) the Court of Appeals had before it the issue of whether exemptions from attachment established by Com. Law. §15-601.1 were applicable to a wage lien ordered pursuant to former Art. 16 §5B (b)(1) providing for spousal support. The Williams Court held that the exemptions from attachment are inapplicable, because the underlying obligation is for intra-familial support. The very purpose of the statutory exemptions is to protect a family from being deprived of all support by attachment proceedings brought by an outsider.
27. In Blum v. Blum, 295 Md. 135 (1983) the husband claimed that he had signed a contract and that what he promised to pay the wife was for contractual support and not alimony and therefore only a debt-not alimony and therefore the same could not be enforced through contempt proceedings and also could not be the subject of an exemption from the wage attachment provisions of §15-601.1 or 15-602. The Court held that given the fact that there is no distinction under Art 16 §5B (b)(1) between contractual spousal support and alimony and the fact that the obligation to pay contractual spousal support like the obligation to pay alimony is not a debt, but rather a duty to provide intra-familial support, the principle in Williams is applicable to the case at bar. Thus exemptions from attachment provided by §15-601.1 of the Commercial Law Article do not apply to a wage lien for contractual spousal support ordered pursuant to Art. 16 §5B(b)(1).
NOTE: The decision to choose a garnishment pursuant to the Maryland Commercial Law article or a wage lien pursuant to the Maryland Family Law Article is ultimately up to the practitioner although the wage lien may be a more effective means.
28. See Maryland Rules, Volume 2, Rule P1(a)&(b). Under the Maryland Rules contempt is either criminal or civil in nature and is classified either as direct or constructive. A direct contempt means a contempt committed in the presence of the court or so near the court as to interrupt its proceedings. A constructive contempt means a contempt which was not committed in the presence of the court or so near the court as to interrupt its proceedings. It the sanction in the contempt proceeding is coercive rather than punitive and the contemptor is allowed to purge him or herself of the contempt by paying the child support then the contempt is civil. If the sanction in the contempt proceeding is meant to be punitive then the contempt is criminal. See Elzey v. Elzey, 291 Md. 369 (1981), State v. Roll, 267 Md. 714 (1973), McDaniel v. McDaniel, 256 Md. 684 (1970), Thorne v. Thorne, 70 Md. App. 27 (1987). See also Baker v. Baker, 58 Md. App. 619 (1984), Jones v. Wright, 35 Md. App. 313 (1977), Hare v. Hare, 21 Md.App. 71 (1974).
Rule P4 mandates that a Show Cause Order be issued where a petition for contempt has been filed. This provides notice to the defendant. See Pettee v. Pettee, 77 Md.App. 362 (1988).
29. Although it is well-settled that an individual may not be imprisoned for a debt under Article III section 38 of the Maryland Constitution, a valid decree of a court of competent jurisdiction or agreement approved by decree of a court for the support of dependent children shall not constitute a debt within the meaning of the present constitutional provision. See §8-105 of the Maryland Family Law Article and Brown v. Brown, 287 Md. 273 (1980).
|
