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The establishment, enforcement and modification of child support awards remain significant issues for family law attorneys. In this column we will focus on problems associated with the establishment of an award, including some history in order to place the problems in context. Our next two columns will focus on enforcement of awards, and then on circumstances that might justify a modification of an award. Before the federal government mandated the states to enact formulas for calculating child support and subsequently required states to enact enforcement mechanisms, a parent who needed child support or who was not receiving child support payments was left in a quandary. Many private lawyers would not accept child support cases because the parent who needed support was unable to afford private counsel. Legal services programs that had previously been able to represent these parents were facing economic cutbacks and many programs were unable to provide free representation. A parent who needed child support to be established or court enforcement of an order was often faced with a daunting task because awards were difficult to predict and therefore costly to litigate. Child support orders were even more difficult to enforce. It was difficult to navigate the court system and protect a child’s right to adequate support. The federal government’s increased involvement in this area has led to some positive changes. Support awards so low, children still in need The federal government has always been indirectly involved in supporting children through its welfare laws. This involvement increased in 1974 when Congress passed the Family Support Act, which required states to establish and enforce child support obligations as a condition for receiving federal funds for welfare payments. The primary goal was to reduce the amount the federal government was spending on children by shifting the emphasis to making parents more responsible for the support of their children. While the increased emphasis on enforcement was somewhat successful in reducing the number of children receiving assistance, the fact remained that in many cases child support awards were set so low that even with full enforcement children were still in need. In response to this concern Congress passed the Child Support Enforcement Amendments of 1984, which required the Office of Child Support Enforcement to set up a national advisory panel on child support guidelines. The panel recommended that states follow certain principles in adopting guidelines. Among those recommendations was that parents should share economic responsibility for the support of their children in proportion to their incomes. As a result, the majority of states use what is known as an “income shares model,” under which the basic child support obligation is computed based on the combined income of the parents (a sum intended to replicate the income that would have been available to support the child had the marriage stayed intact). The basic obligation is then prorated in proportion to each parent’s income. Child care expenses and extraordinary medical expenses are added on to the basic amounts. Adjustments are also made when there is split custody or a significant sharing of custodial time. Uniformity in results is fostered by a presumption that the amount arrived at by application of the guidelines will be awarded unless the court finds the amount unjust or inappropriate. The court must justify an award that deviates from the presumed amount. Percentage guidelines for calculating support (or increases in support) initially met with opposition from many bar association groups. Since these calculations were designated as presumptive, opponents argued that lawyers would either end up with the guideline support as a final number (when negotiating) or that judges would just chose the guideline amount, rejecting attempts to litigate above or below percentage figures. In fact, in spite of the presumptive amount, many issues remain to be litigated. To begin with there is the issue of what constitutes “income.” While certainly regularly earned income is to be considered, questions arise concerning sporadic income such as overtime, bonuses or commissions. While many states define these forms of compensation as income for purposes of calculating support, there is room to argue that these additions to income are not regular enough to be included in a calculation that will result in an ongoing award. Another interesting area of inquiry is the inclusion of “perks.” Courts have held that in-kind benefits such as housing allowances or car allowances should be included because it is assumed that the recipient would otherwise be receiving additional compensation in lieu of the benefit. Another source of income may be Social Security benefits. Social Security benefits received by a parent are considered income. If the benefits are payable to the child as a dependency benefit as result of the obligor’s employment, the obligor is generally entitled to a dollar-for-dollar credit against the amount owed. In addition to actual earned income, a court may also impute income to a parent who is unemployed or underemployed. When this is done it is usually the result of a finding that a parent has previously earned more money. In determining whether or not to impute income, the court will examine whether or not the reduction was voluntary, and if so, the rationale for that action. The courts have followed three general approaches when an obligor voluntarily reduces income. The first is a “good-faith test,” which focuses on the motivation behind the voluntary reduction and penalizes the obligor only when he or she has acted with the primary intention of avoiding the obligation. The second approach is a strict rule that focuses on the earning capacity of the obligor regardless of his or her intentions. The third approach is the intermediate tests, which requires an examination of a multitude of factors, including whether a temporary reduction will lead to a future increase in income available to support the children (such as when a parent leaves employment to acquire further education), and the extent of the reduction on the child’s short-term well-being. For example, a father wishing to leave his job to attend law school may receive some consideration if his children are young since he will presumably be able to earn additional income that will be available to the children over a significant period of time. When the anticipated increase in income is more speculative or where the children are older and therefore not likely to reap the benefits of the increased income, the court may be more likely to impute income. The greatest opportunity for varying the amount of support lies in rebutting the presumptive amount by establishing that the presumed award is unjust or inappropriate. In making such a determination, many state statutes use as a guideline the standard of living the child would have enjoyed had the marriage remained intact (although it should be noted that this is rarely an achievable goal as it is not economically feasible to maintain two households as cheaply as one). An example of the application of this standard can be seen in those states which have established a presumed “cap” at a certain level of combined parental income. For instance, if the guideline chart goes up to a combined income of $20,000 a month and at that amount the presumed amount of child support is $1,400 a month, $1,400 would continue to be the presumed amount, even if the combined income were $40,000 a month. Under these circumstances, the attorney for the custodial parent might argue that the $1,400 award was unjust and inappropriate because it would not provide the standard of living the child had enjoyed, and would presumably have continued to enjoy but for the divorce. Attorneys in states where the guideline amounts have not changed in a long time and therefore fail to reflect the increased costs of raising children may also wish to argue that the guideline amount will not approximate the child’s predivorce standard of living. “Add-on” payments often lead to litigation In addition to the basic amount arrived at by adherence to the guidelines, many parents argue for additional or “add-on” payments. These requests often lead to litigation. This is especially true with the increasing costs for private schools. Many litigators will argue that once the parents have enrolled a child in a private school it would be unfair to remove the child from such a school. In addition, previous enrollment is one of the best indicators of the child’s “standard of living.” If the child is yet to start school, the court may look to the parents’ own educational experiences and whether they had private-school educations. Of course, the court must also find that the parents’ level of income is sufficient to afford such an expense. As with private-school expenses, college education costs are a troubling area for litigators. The question is complicated by the variation in the age of majority among the states. Custodial parents who live in states where support ends at 18 sometimes attempt to establish residency in those states where the obligation extends to college-age children. Barbara Handschu is a solo practitioner with offices in New York City and in Buffalo, N.Y. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected].

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