What is child support?
Every child is entitled to support from his parents. The New Jersey child support guidelines are based on the theory that child support is determined in proportion to the parent's income and assets as well as the child's needs.
All parents, whether natural or adoptive, have a financial obligation to support their child. This obligation continues even if the parties have divorced. A support award can be increased or decreased as circumstances may arise. In order for a party to change the amount of child support, the moving party must file a motion with the court, and establish a "change of circumstances."
How does a person obtain a child support order?
When a parent needs to obtain child support, she must make an application to the Superior Court where the parent and child reside. Normally, the clerk has pro se forms that they give to the pro se litigants. The clerk will then interview the applicant and try to obtain as much info as possible. The clerk will want to ascertain where the father lives, and where he works.
Once a party makes an application for child support, the Family Division will then schedule the case for a hearing. The court will mail notices to appear to all parties in the case. The notice advises the parties as to the time, date and place to appear.
If the parties are not filing for divorce, then the court will open up a non-dissolution case. The court will assign the case a FD docket number. In divorce cases, the court will assign the case a FM docket number. A FD case basically means either that the parties are not filing for divorce yet. Alternatively, it may mean that the parties were never married.
In a FD case, once the application for child support is made, then the case will be scheduled to be heard before a Child Support Hearing Officer. A Child Support Hearing Officer is a trained lawyer who is appointed to assist judges to determine child support and insurance. After the Child Support Hearing Officer issues their award, the parties can either accept it, or request to see the judge to review it.
At the child support hearing, both sides will present their pay stubs, W-2 info, tax returns, and health insurance info to the officer. The Child Support Hearing Officer will then review this info, and enter the pertinent data into a computer program that calculates child support. The Child Support Hearing Officer will then calculate a child support award, prepare a worksheet, and present it to the parties.
The parties can then either accept the child support award, or request to have it reviewed by the Superior Court judge. If the case is appealed to the Superior Court judge, in most of the cases the court will affirm the findings of the Child Support Hearing Officer.
How is child support determined during a divorce case?
In a divorce case, an application for child support is almost always made during a preliminary hearing called a pendente lite application. Basically, the dependent spouse must file an application to the court that requests child support. These motions must be very detailed. These motions must include a completed CIS, the parties income info, a detailed description of the major family bills, and a completed child support guideline worksheet.
At the motion hearing, the judge will then enter the relevant income data into his computer program, and he/she will determine a child support award. The child support award and the employment date will then be given to the Probation Department. In most case, a garnishment will start in about three weeks. The dependent spouse should start receiving checks in about 6 to 8 weeks. In the interim, the payor spouse must make direct payments to the dependent spouse until the wage garnishment kicks in.
What are the criteria considered by the court to determine child support?
When a court makes a child support award, the court must consider the following factors: (1) the needs of the child; (2) the standard of living and the economic circumstances of each parent; (3) the sources of income and assets of each parent; (4) the earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children (including the cost of providing child care and the length of time and cost of each parent to obtain training and experience for appropriate employment); (5) the need and capacity of the child for education (including higher education); (6) the age and health of the child and parents; (7) the income and earning capacity of the child; (8) prior support orders for other children; (9) the reasonable debts and liabilities of each parent and child; and (10) any other relevant facts.
What are the Child Support Guidelines?
A child support award allows the custodial parent to provide the child with all of the essentials, such as food, clothing, and shelter. In order to ensure that the courts issue consistent chid support awards, the State has enacted the Child Support guidelines. These guidelines are a formula which guides the person with factors to consider in reaching a child support award. The guidelines are derived from the Consumer Expenditure Survey. The guidelines take income info from both parties, and this info is applied to a formula to calculate a child support award.
The current guidelines also provide for a self-support reserve for the payor parent. Basically, this means that if a person is too poor, and they can't even survive, then they don't have to pay child support. As of February 7, 2003, the self-support reserve was $181, or 105% of the poverty guideline for one person.
What are the Child Support Guidelines worksheets?
When a court calculates child support they must use a Child Support Guideline worksheets. There are two types of worksheets. The sole parenting worksheet is used when any of the following occur: (1) there is no visitation from the other parent; (2) there is sporadic visitation from the other parent (which does not exceed 2 or more overnights per week); (3) there is more than one child and at list one child resides with each parent.
The shared parenting worksheet is used when the parties share more parenting time with the child. The non-custodial parent must have custody of the child for at least two or more overnights per week.
The courts use a computer program to calculate child support. In order to use the computer program, the court must input the relevant income info into the program. There are two options on the computer program. The court can calculate child support either using the sole parenting worksheet or the shared parenting worksheet. The child support award will be higher if the court uses the sole parenting worksheet option. Alternatively, the child support award will be lower if the court uses the shared parenting worksheet option.
How do the Guidelines define gross income?
The Guidelines define gross income as any and all of the followings: compensation for services; income from a business minus any operating expenses; gains from property; interest and dividends; rents; bonuses and royalties; alimony or maintenance payments received from the current or other relationships; annuities; life insurance contracts; payments from retirement plans; awards from personal injury or civil suits income from a trust disability payments, profit sharing plans; worker's compensation; unemployment benefits; overtime, part-time and severance pay; net gambling winnings; earnings from investments; tax credits or rebates; unreported cash payments; and imputed income.
How does a court arrive at the parent's net taxable income to calculate a child support award?
To arrive at a parent's net taxable income, the parent's withholding tax, prior child support orders, mandatory union dues and other dependent deductions are subtracted from the adjusted gross income. If there is non-taxable income, it is then added to the net taxable income to arrive at the parent's net income. Each parent's net income is then divided by the combined net income to determine their percentage share of income. The parents are then required to pay their percentage share of the weekly child support obligation.
Can the court also award additional expenses with respect to the parties' basic child support obligations?
In addition to calculating a straight child support award, the court may also award additional expenses with regard to the parties' basic child support obligations. The most common expenses that are awarded are day care and health insurance expenses. The expenses for day care and health insurance can easily inflate a child support award to approach the size of a mortgage payment.
If the parties have some dough, then the courts will also require the father/payor to pay for a share of any summer camp, and for the children's extracurricular activities. The courts will also require the payor to pay for a share of the sports related activities, dance classes, music lessons, etc. If the parties have limited economic resources, then a court most often will hold that the expenses for these activities are part of the child support award. If the parties have money, then in most cases the court will make the payor front these expenses. The lesson to be learned is that getting divorced is not cheap.
Can child support be modified?
When sufficient circumstances are present, a child support obligation can be modified. New Jersey law requires that the person who seeks to modify a support award must prove that there has been a "change in circumstances." The phrase "change of circumstances" is a very broad legal term of art. There are literally hundreds of cases that discuss what is a "change of circumstances." Either party can file a motion for an increase/decrease in child support with the clerk. The parties must submit a completed CIS, income info, and the normal motion package.
In my experience, it is very difficult for a father/payor to have child support lowered on the grounds that he lost his job or received a decrease in pay. In most of these cases, the court will temporarily reduce child support, and give the father time to find better employment. Motions to reduce child support are usually only granted if the father can prove that he has health problems that limit his earning abilities.
The courts may also lower child support if the father has additional children after the divorce. However, some courts will hold that the father is underemployed, and he should work additional jobs to pay for both families.
Are child support awards increased for a Cost of Living Adjustment?
All child support orders are adjusted every two years to reflect any increase in the cost of living. The cost of living adjustment will be based on the average change in the Consumer Price Index (CPI) for New Jersey. The most current CPI figures can be obtained from the US Department of Labor, Bureau of Vital Statistics, or from the New Jersey Law Journal.
What if a person loses their job, or if the amount of their pay is reduced, does this guarantee that child support will be reduced?
A decrease in available income is not a guarantee that the support obligation will be decreased. In order to justify a downward modification of child support, the decrease in income must be permanent in nature. The support payor must be able to prove that after numerous attempts, that he could not find a decent paying job. The payor spouse will have to create a paper trail to prove to the court that he has been diligently seeking employment. Copies of e-mails, and correspondences to prospective employers, must be attached to any application to any motions to reduce child support.
Moreover, in order to obtain a child support reduction, a support payor must be able to prove that the decrease in income was involuntary. A father cannot voluntarily remain under employed. Additionally, a parent cannot voluntarily retire or take a much lower job than he is qualified for in order to purposefully avoid paying for child support.
Can the court impute income to a person if he is purposefully unemployed or underemployed?
If the court believes that a father is purposefully unemployed or underemployed, then the court will impute income to the party. Imputed income is what the court estimates what the "deadbeat dad" day should be earning. The Child Support Guidelines require that the court to impute income based on the person's potential employment, earning capacity, work history, job qualification, educational background, and regional opportunities.
The court imputes income based on the parent's former job and as reported by the New Jersey Division of Labor. The Division of Labor publishes a book every year called the New Jersey Occupational Wages Survey. This book has an average income of every job and profession in every county in New Jersey. In summary, there is no escape to pay for child support. If a man just does not feel like working, then a judge will just look into the New Jersey Occupational Wages Survey and find the average salary that the person should make. This book is also used to ascertain income for the classic self-employed person who always hides or under reports his income.
