McKindles Law Firm

480-964-9302

Testimonials  |  Biography  |  Contact Us  |  Home     Facebook   Google+

Divorce  •  Financial Challenges  •  Real Estate  •  Estate Controversy  •  Business Law

 

family law

 

The Anatomy of a Divorce,
Part 5: Child Support

Unlike many other issues that must be resolved in a divorce, determining the child support obligation is a relatively objective process

John McKindles

Free 5-minute phone call

Do you have a quick legal question?

Call John McKindles at 480-964-9302 for a no-charge, five-minute phone call.

Mesa Arizona Divorce Attorney John McKindlesA driving force impacting the resolution of child custody (officially termed "decision-making authority") and access issues is the responsibility for child support and amount of child support to be paid.

Many factors influence the child support order ultimately entered by the Court, including any spousal maintenance award (which will be discussed more fully in the next article in this series). Arizona follows the Income Shares Model through its Child Support Guidelines. The significant factors considered in applying the guidelines include the following:

  1. The combined income of the parties.

  2. The presence of other children of the parties not common to the marriage, and any support paid or received for them.

  3. Spousal maintenance.

  4. Any necessary daycare costs.

  5. Health, dental and vision insurance premium costs.

  6. Any special medical, educational or similar costs.

  7. The children’s ages.

  8. The amount of time the child actually spends with the obligor parent (i.e., the parent who is required to pay child support to the other, or “obligee” parent).

Each of the above factors is, in turn, affected by other factors that will not be addressed here. Essentially, the Court will order a child support consequence based upon the calculations that derive from figures entered into a worksheet (see “Child Support Calculator”). The parties are strongly encouraged to reach agreement and submit a unified worksheet supporting an agreed child support amount. Lacking that, the Court will schedule an evidentiary hearing or trial to consider the parties’ diverse positions and determine a child support amount.

The parties might have some flexibility in the amount of child support if they can reach an agreement and properly justify the agreed figure. However, caution must be exercised so that a child support (modifiable) concession is not offset by a property distribution (non-modifiable) gain. Bear in mind that child support is essentially based on gross income (somewhat adjusted) and does not incorporate consideration of debt or other expenses. As far as the Court is concerned, child support generally has priority over all other financial obligations.

Collection of child support is normally through wage assignment directed to the Support Clearing House. Should the obligor no longer be working or his/her whereabouts unknown, collection obviously becomes much more tenuous.

Modification

Although child support determinations are made at the time of the divorce proceeding, child support continues to be a lingering issue because it is modifiable for years after the divorce decree has been entered.

Any modification of child support will require a showing of substantial and continuing change of circumstances. “Substantial” is measured in the guidelines as a variance of 15% or more between the child support consequence under the current circumstances against the existing (original) amount.

The disputes arising in such a modification include how “continuing” the circumstances are (e.g., temporary layoff vs. permanent loss of a job) and whether the obligor has control over these circumstances (e.g., voluntarily choosing a lower paying job).

Also, child support may continue beyond the child’s age of majority in the event of a special needs situation, but other financial considerations might also apply (e.g., availability of Social Security disability).

Tax Considerations

With respect to income taxation, child support payments cannot be deducted by the paying parent, nor is it included in the taxable income for the receiving parent. In contrast, spousal maintenance payments are deductible and taxable, a fact that sometimes leads to negotiations as to whether one parent’s payments to the other is to be classified as child support or spousal maintenance.

Other income tax considerations include deductibility of daycare expenses (and a correlative credit) and claiming children as dependent exemptions. Daycare costs are deductible from ordinary income for income tax purposes, and the child support worksheet contains an entry for the credit.

The ability to claim children as dependent exemptions is governed by federal law. IRS regulations allow only one parent at a time to claim the dependency exemption for a child. Those regulations identify the custodial parent (who has the children for the majority of the year) as the qualifying parent to get the exemption. However, the custodial parent can sign a declaration allowing the noncustodial parent to take the exemption (sometimes ordered by the Court). Generally, where there is equivalent physical custody, the Court and/or the parties generally allocate the dependency exemption on a pro rata basis, depending on the income ratio.

Conclusion

Unlike other, less defined issues (e.g., spousal maintenance, allocation of assets and debt, etc.) that must be resolved in a divorce, determining the child support obligation is a relatively objective process.

Nevertheless, like virtually all points of controversy in a divorce, the parties are generally better off by agreeing to their respective shares of the calculated child support obligation (in ways that truly reflect their situations) than by forcing the court to make a more arbitrary determination.