Child, Spousal & APL Support
Initial proceeding s on these issues can set the stage for the remainder of the case whether it will be cooperative or contentious. To calculate both child and /or spousal support it is based on net income. Of course, taxes, federal, state and local are deducted as well as social security and Medicare contributions plus union dues and support paid to other parties. ANY and ALL I sources of income are used to determine the support amount. Determining the correct income can be a bit tricky when the one who is to pay the support is an owner of a business.
When you are summoned to a support conference be prepared to bring 6 months of pay stubs, your most recent income tax return for personal and business if that applies,, child care costs, any existing support orders, health, dental, vision insurance information and the insurance cards so that both parents and/ or spouse have them.
If you are seeking support from someone who is on SSI (supplemental social security income), then no support obligation will be attached. If you are seeking support from someone receiving social security disability then that will be considered income and the support will be calculated using the amount you receive. Social security derivative benefits are treated differently. The derivative benefit is added to the income of the receiving parent. Then the benefit is deducted off of the child support obligation if the parent receiving the benefit and the parent receiving child support are the same. Child care and other expenses are allocated between the parties without considering the derivative benefit.
If you own a business for support calculation purposes, business depreciation, deductions and capital outlays are added back into the obligor’s income( that is the party who has to pay the other and the recipient is the obligee). Other business deductions may be added back in. In these cases always a good idea to consult with an attorney.
Personal injury awards and workman’s compensation awards are considered as income for support calculations but not an inheritance.
If the requesting party is not working and does not have children under school age, nor has a physician verification form that documents they cannot work, then an income will be imputed for that party. What can realistically be earned considering one’s health, age, mental and physical condition, training, and time out of the work force. Also has a reasonable job search been conducted by the party seeking support. If none of the work criteria fits to impute an income then a full time minimum wage income will be used.
The hearing officer in a support case can deviate from the guidelines. A new spouse or live in paramour’s income does not count but a showing of the obligor’s decrease in living expenses because of their new partner may be used to deviate from the guidelines.
The support order can be modified every 6 months if there is a change in circumstances. If the substantial change occurs within 6 months the judge must grant a waiver to file for the modification. Some of the reasons for the modification maybe a decrease in income or an increase in income, retirement of either party, job loss, NOT fired from a job, medical condition and/ or a disability is
determined.
The support ends when the child turns 18 or is out of high school, whichever occurs later but if the child has a disability that will last the child’s lifetime, the payments can go on for a very long time.
On January 1, 2019, the law changed regarding taxability and deduction of payments. Spousal support and alimony in the interim(APL) are not deductible to the person paying nor are they income to the person receiving the benefits. Also only the primary custodial parent can claim the childcare tax credit.
I have mentioned APL, this is a remedy to seek support for a spouse when a divorce is filed. Sometimes the divorce must be filed to get support because there may be a defense to the payments when just filing for spousal support. Unless the spouse has a viable reason for leaving the marital home this could be considered her abandoning the home and bar support. Often that is all that a spouse can do to escape the situation. Even if you are living with a new partner, alimony in the interim can be awarded. The reasoning is that this monetary support is to equalize the party’s ability to maintain or defend the divorce action.
Some final thoughts are that the parties are not obligated to pay for college for their children unless they voluntarily agree to do that in an agreement and the parties cannot bargain away their children’s right to receive support. So even if that language is put in an agreement or a consent order, a support hearing can be scheduled.