Child Support: How Judges Decide the Amount

How do judges determine how much child support to order? State guidelines are the starting point.

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Using State Guidelines

Every state has a formula for calculating child support, and judges use those formulas to determine how much child support will be paid in each case. The formulas themselves can be quite complicated, but it’s pretty easy to estimate what your child support might be by using free online calculators.  (Check for your own state’s calculator by entering your state’s name and “child support calculator” into a search engine, or use the simplified calculators at alllaw.com.  

The biggest factor in calculating child support is how much the parents earn. Some states consider both parents’ income, but others consider only the income of the noncustodial parent. In most states, the percentage of time that each parent spends with the children is another important factor.

Most states consider at least some of these other factors in calculat­ing child support:

  • child support or alimony either parent receives from a previous marriage
  • whether either parent is paying child support or alimony from a previous marriage
  • whether either parent is responsible for children from a previous (or subsequent) marriage
  • which parent is paying for health insurance, and the cost
  • which parent is paying day care costs, and the cost
  • whether either parent is required to pay union dues or has other amounts deducted from paychecks
  • ages of the children
  • whether either parent receives irregular income such as bonuses or incentive pay, or expects severance pay or other lump-sum payments, and
  • whether either parent lives with a new partner or spouse who contributes to household expenses.

Most courts believe that child support is more important than alimony and calculate child support first, and then evaluate what’s left in setting alimony. And states define “income” differently—some use gross income, some use net, and some include gifts, bonuses, and overtime while others do not. If a parent has significant investment income, it may be counted as income for purposes of calculating child support.

Setting Support Higher or Lower Than the Guidelines

If you think that the guidelines shouldn’t apply for some reason but your spouse doesn’t agree with you, you’ll have to tell it to the judge. Judges are allowed to deviate from the guidelines if there are good reasons.

For example, if you’re the paying parent, you might argue that because you are paying for your kids’ private school and all of their uninsured medical expenses, the support payment should be less than the guideline amount. (But even if you’re providing some extras, the base amount of support has to be enough for the necessities.) Or if you have custody of a disabled child who requires extra care and has unusual medical expenses, you might think the support paid to you should be higher than the guideline amount.

Be prepared to show the judge documentation of your position. A budget showing all of your expenses relating to the kids will impress the judge with your attention to their needs and the seriousness of your position.

Here are some circumstances that might cause a judge to set support above or below the guideline amount:

  • The noncustodial parent can afford more. If the paying parent earns a great deal of money, has other significant assets, or receives in-kind compensation like employer-provided housing, the judge may order a higher-than-guideline payment.
  • The guideline amount is more than what’s needed. If the non­custodial parent makes so much money that the guideline support amount would be much more than is needed to pay for the children’s regular expenses, the judge might reduce the amount.
  • The paying parent can’t pay. If the noncustodial parent earns very little money, has other expenses that make it impossible to meet the guideline amount, or has recently lost a job, the court may order a lower support amount. The judge is also likely to order the parents to return to court at a set time so that the judge can review their current circumstances.
  • A child has special needs or interests. A child with unusual medical, psychological, or educational needs may require a higher amount of support. Also, if your child is an avid musician or involved in sports or other activities, you can ask the judge to order the paying parent to pay an additional amount so that the child can continue a favorite activity.
  • The paying parent is shirking. A parent’s earnings sometimes don’t reflect true earning potential—for example, say a parent is trained as a lawyer but works as a bookstore clerk. In that case, especially if the judge believes the parent is purposefully avoiding paying support by taking a low-paying job; a court might calculate support based on what the parent could be earning (that’s called imputing income).

Adapted from Nolo's Essential Guide to Divorce, by Emily Doskow. 

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