14: Introduction to Child Support

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Child support, like other aspects of family law, is governed by state law. However, federal law has increasingly influenced state child support laws, particularly with respect to calculating the amount of child support to be paid, enforcement of child support orders, and collection of unpaid child support. Because states vary in terms of how child support is calculated, this chapter will focus primarily on Wisconsin law.

Jurisdiction Over Order Regarding Child Support

As you know from previous chapters, before a court can enter an enforceable order, the court must have subject-matter jurisdiction and also personal jurisdiction. Although the right to receive financial support from parents belongs to the child, child support orders directly impact the parents’ finances, so personal jurisdiction over the parents is required. A parent who files an action in court that seeks an order regarding child support has consented to personal jurisdiction. Personal jurisdiction over the other parent is obtained through proper service of process, appearance in the court action without objecting to personal jurisdiction, or through long-arm jurisdiction. (See the discussion in Chapter 7 regarding personal jurisdiction).

The Full Faith and Credit Clause of the United States Constitution applies to the enforcement and modification of existing child support orders. As such, all states must enforce valid orders entered in other states, and only the state that entered the original order has the power to modify the existing order unless both parents and the child no longer reside in the state.

Overview of Child Support

Issues involving child support involve many questions that must be answered before we get to the actual calculation of child support. These questions involve who is obligated to pay child support for how long, and what financial resources are included for the purposes of determining a person’s ability to pay child support (and how much the person will pay).

Who is required to pay?

Both parents, whether married or not, have a duty to support their children. This is true for biological parents and also for parents who have legally adopted the child. This duty is based on the adult being a legal parent of the child, without regard to the parent’s marital status, gender identity, socio-economic status, or other circumstances.

These other adults generally are not obligated to pay child support:

Sperm donors. This includes men who donate anonymously to a sperm bank and men who provide sperm based on a valid surrogacy contract.
Foster parents. While foster parents are required to support children placed in their care, once the foster placement ends, so does the support obligation.
Grandparents. There may be exceptions for grandchildren born to underage children who live in the grandparents’ household.
Stepparents. As long as the stepparent has not legally adopted his/her stepchild, there usually is no duty to support the stepchild. However, there are some circumstances where a stepparent may be ordered to pay child support as an equitable or presumed parent, based on the stepparent’s behavior that would justify the stepchild’s reliance on support from the stepparent and undue harm that would result from not ordering child support.
Cohabitating adults. Unless there is an express agreement to provide support to the child, or other equitable circumstances justifying an order for support, as with stepparents, there is generally no duty imposed on an adult to support a child simply because the child is living with that adult.

How long must the person pay?

Most states require parents to pay child support until the child reaches the statutory age of majority, which is usually 18 years old, or until the child is emancipated. Additionally, in most states, the duty of support will extend beyond the age of majority if the child becomes physically or mentally disabled before reaching the age of majority.

Definition: Emancipated

Emancipated: Declared by court order to be legally independent of the child’s parents.

In Wisconsin, the duty to pay child support generally terminates once the child reaches the age of 18. However, the duty extends up until the child turns 19 years old, “if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.” Section 767.511(4), Wis. Stats.

In most states, parents are not obligated to support children attending college or receiving other higher education after high school, nor are parents required to help pay for college/higher education unless they have otherwise agreed to do so.

What financial resources are included as the basis for child support?

Child support is based not only on just the parent’s duty to support but also on the parent’s ability (financially) to do so. The financial resources of a parent that are included in determining the parent’s ability to pay are broadly defined in most states to provide sufficient support for children.

In Wisconsin, the child support obligation is based on each parent’s annual gross income.

Definition: Gross Income

Gross income: All income earned from any sources, before deductions for taxes, health insurance premiums, or other expenses.

The Wisconsin Administrative Code section DCF 150.02(13) defines gross income as including the following sources of income:

Salary, wages, and military (and similar) allowances
Interest and investment income earned on bank accounts, mutual funds, and other financial investments
Social Security disability and old−age insurance benefits
Money received that is intended to replace income, such as unemployment insurance, income continuation benefits, and the portion of workers’ compensation or other personal injury awards intended to replace income
Voluntary deferred compensation, including employee contributions to any employee benefit plan or profit–sharing, or to any pension or retirement account (such as a 401k)
Veterans disability compensation benefits and military allowances, including basic allowances for subsistence and housing (but not amounts attributable to area variable housing costs)
Undistributed business income
Income from other sources or assets (for example, income from rental properties)

As you can see, almost any source of money actually or potentially coming in counts as gross income for the purpose of determining a parent’s child support obligation. Specifically excluded from the definition of gross income are the following:

Child support received pursuant to another court order
Foster care and Kinship care payments
Public assistance benefits, including food stamps, social services, and other government-paid cash benefits
Supplemental Security Income (state and federal)

Sometimes, unfortunately, a parent will attempt to avoid paying child support through an intentional reduction in income earned or by delaying the payment of income the parent is entitled to receive. In that circumstance, the court may add the amount of income that the parent should reasonably be expected to receive. This is known as imputed income.

Definition: Imputed Income

Imputed income: Income that is assumed to be available or is attributed to the parent, even if it is not actually earned or distributed, based on various factors such as the parent’s recent work and earnings history; occupational, educational, and professional qualifications; existing job opportunities and associated earning levels in the community or the local trade area; the parent's age, literacy, health, criminal record, record of seeking work, and other employment barriers.

Whether to impute income to a parent requires in-depth analysis of many circumstances and can be tricky for the courts to navigate.

Case in Point: Goldberger v. Goldberger, 96 Md. App. 313, 624 A.2d 1328 (1993).

Synopsis

At the time of their divorce, Esther and Aron Goldberger had six minor children. A dispute arose regarding child support. Aron was healthy, 32 years old, and had completed many years of higher education. However, Aron had never worked and thus never earned any actual income. Rather, Aron intended to be a permanent Torah/Talmudic student "for the sake of studying, which is a positive commandment to study the Torah for the sake of studying it." During his 3-year custody battle, a network of his family and Orthodox communities in Europe and the United States had provided him with $180,000 to assist with his claims. Based on that amount, the trial court imputed $60,000 per year of income to Aron. Noting that “a life devoted to study is viewed by many in the Orthodox community as a true luxury that very few can enjoy” the Maryland Court of Appeals agreed that Aron had voluntarily impoverished himself, and that an appropriate amount of income should be imputed to him.

Excerpts

Following are excerpts from the opinion affirming the trial court’s determination that Aron had voluntarily impoverished himself (though requiring the trial court to re-calculate the amount of income to be imputed to him) (citations and references to other authorities within the opinion are omitted)

Throughout his life [Aron] has been supported by others, first, his parents, thereafter, his father-in-law, and most recently, friends in the Orthodox community. Nevertheless, [Aron] fathered six children whom he has refused to support, arguing that he has no means to support and never will have the means to provide support.

[T]here can be no question that [Aron] has a legal obligation to financially support his children until they reach the age of legal majority. The more difficult question is how to calculate the proper amount of that support. [The Maryland family code includes in this calculation the] “potential income of a parent, if the parent is voluntarily impoverished.”

The legislature's purpose in including potential income was to implement state and federal policy of requiring adequate support by precluding parents from avoiding their obligation by deliberately not earning what they could earn.

The issue of voluntary impoverishment most often arises in the context of a parent who reduces his or her level of income to avoid paying support by quitting, retiring or changing jobs. The intent of the parent in those cases is often important in determining whether there has been voluntary impoverishment. Was the job changed for the purpose of avoiding the support obligation and, therefore, voluntary, or was it for reasons beyond the control of the parent, and thus involuntary?

A parent who chooses a life of poverty before having children and makes a deliberate choice not to alter that status after having children is also "voluntarily impoverished." Whether the voluntary impoverishment is for the purpose of avoiding child support or because the parent simply has chosen a frugal lifestyle for another reason, doesn't affect that parent's obligation to the child. Although the parent can choose to live in poverty, that parent cannot obligate the child to go without the necessities of life. A parent who brings a child into this world must support that child if he has or reasonably could obtain, the means to do so. The law requires a parent to alter his or her previously chosen lifestyle if necessary to enable the parent to meet his or her support obligation.

Accordingly, we now hold that, for purposes of the child support guidelines, a parent shall be considered "voluntarily impoverished" whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.

Unfortunately, the court below erred in determining that [Aron]'s potential income was $60,000 per year, based solely on his ability to raise funds to support and carry on this litigation. Although the court may consider the ability of [Aron] to persuade others to provide him with funds to pay child support in the future, the court cannot assume this will occur merely because [Aron] has been able to convince others to support this litigation up until now. The court needs to hear testimony and make findings regarding the factors relating to potential income previously enunciated. No such findings were made in this case. After calculating the guidelines using [Aron]'s realistic potential income, the court must decide whether the presumptive correctness of the guidelines has been overcome. Accordingly, this matter must be remanded to the trial court for such determinations.

Think About It ...

Do you agree with the court’s opinion and its outcome? Why or why not?
If you disagree with the trial court’s order, what would you have ordered instead?
Do you agree with the determination that Aron "voluntarily impoverished" himself?
Might the Court's determination violate his First Amendment right relating to the exercise of religion?

As you will also see, the issue of whether imputation of income is justified also can arise when the parent ordered to pay child support seeks a reduction in the amount the parent is required to pay.

What are the appropriate uses of child support?

Although the actual child support payments are received by the child’s parent, the money and the right to receive it belong to the child and not to the parent. Whether a proposed use of child support money is appropriate must be determined in that context.

Child support payments are intended to pay for the child's care and upbringing, regardless of who actually incurs the expenses. Some practitioners categorize the expenses as follows:

General support: Food, clothing, housing (mortgage/rent)
Healthcare support: Medical expenses, mental health care expenses, dental expenses, vision expenses, prescriptions, insurance (medical, dental, vision), personal care expenses (soap, shampoo, toothpaste, etc.)
Childcare support: Childcare costs, daycare costs

Although many parents consider the child’s school expenses, extracurricular activities, hobbies, sports, and driver’s education/licensing to be necessary to the child’s “care and upbringing,” they are not automatically divided between the parents. Wisconsin refers to these expenses as “variable expenses” that are best addressed in the parties’ Proposed Parenting Plan (see section J).

Initial Order for Child Support

Although the parents have an equal duty to support their children, the parents do not necessarily pay equal amounts of support. Each state has specific guidelines that must be followed when calculating child support, and the guidelines and factors allowing deviations from the guidelines vary. Generally, however, in most states the amount of child support is based on each parent’s financial resources, the number of children, and the amount of physical placement each parent has with the child(ren). Every state has enacted some sort of child support guidelines to comply with Federal requirements designed to reduce public welfare expenditures by obtaining child support from parents. Pursuant to Federal law, these guidelines operate as rebuttable presumptions of the correct amount of child support in divorce and paternity actions.

Wisconsin statutes require orders, whether based on the parties’ agreement or the court’s own order, to do the following:

Require one or both parents to pay an amount reasonable or necessary to support the child.
Express the support amount as a fixed dollar amount unless the parties have stipulated to expressing the amount as a percentage of the payer's income (but using a percentage is only allowed under certain circumstances; see section 767.34(2)(am))
State which party will claim the child(ren) as a dependent for federal income tax purposes
Assign responsibility and method for paying the child’s health care expenses, including health insurance coverage. Section 767.511(1), Wis. Stats.

Once the parents’ financial information has been received, child support is to be calculated using the percentage standards established by the Department of Children and Families as the starting point.

Presumptive Calculation of Child Support in Wisconsin

Wisconsin’s Department of Children and Families has established child support calculation guidelines that apply in a myriad of circumstances, based on the number of children subject to the current order, the physical placement of those children, whether the payer is “high income” or “low income,” and whether the payer is currently obligated to pay child support under an existing child support order. Following is a summary of those guidelines.

General guidelines (primary/secondary placement): unless other circumstances apply, a parent who has physical placement of less than 92 overnights per year will pay
- 17% of gross income for 1 child
- 25% of gross income for 2 children
- 29% of gross income for 3 children
- 31% of gross income for 4 children
- 34% of gross income for 5 or more children
Shared-placement parents: if both parents have a physical placement of at least 92 overnights per year (and the schedule is the same for all children), the percentages from the general guidelines are multiplied by 150% (1.5), and then multiplied by the proportion of time the children spend with the other parent. The amounts for each parent are offset, and the parent with the greater amount of support pays the remaining amount
Split-placement parents: if the parents have 2 or more children who have different placement schedules from the parents, a pro-rata percentage is used based on the number of children (for 2 children, 12.5% for each child; for 3 children, 9.67% for each child; for 4 children, 7.75% for each child; for 5 or more children, 6.8% for each child).
High-income payers: if the payer parent under either the general guidelines or the shared-placement guidelines earns monthly gross income greater than $7,000 (or $84,000 per year), the percentages used under the general guidelines are reduced.
Low-income payers: if the payer parent’s income is less than 150% of the federal poverty guidelines, the percentages used under the general guidelines are reduced.
Serial family payers: if the payer is currently obligated to pay child support under an existing child support order, the subsequent order is calculated based on the payer’s monthly income after the existing child support obligation is deducted. Once the reduced monthly income has been calculated, whichever circumstances described above are applicable are used to determine the subsequent order.

This sounds somewhat complicated, doesn’t it? The good news is that many law firms practicing family law have software to assist with these calculations. Additionally, the Department of Children and Families has provided worksheets to help estimate the amount of child support in various circumstances.

Some examples of each type of calculation (as well as the above worksheets) can be viewed on the Department’s website.

Special note: Although the “offsetting amounts” of child support assigned to each parent may result in almost no money being paid by one parent to the other, particularly when the parents’ incomes and amounts of physical placement are nearly equal, in Wisconsin the parties cannot agree that there is no child support obligation.

Judicial Discretion to Deviate from Presumptive Calculation

Once the presumptive amount of child support has been calculated, the judge is allowed discretion to deviate from that calculation if the judge determines the amount is unfair to the child or to either parent. Factors that may allow for deviation include

The best interests of the child(ren)
The child’s financial resources
The financial resources of both parents.
Maintenance (spousal support) received by either party.
The needs of each party in order to support themselves at a level equal to or greater than that established under federal poverty guidelines.
The needs of any person, other than the child, whom either party is legally obligated to support.
If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
The desirability that the parent remain in the home as a full-time parent.
The cost of childcare if the parent works outside the home, or the value of childcare services performed by the parent if the parent remains in the home.
Extraordinary travel expenses incurred by the parent in exercising the right to periods of physical placement
The child’s physical, mental, and emotional health needs, including any costs for health insurance
The child's educational needs.
The tax consequences to each party.
The earning capacity of each parent is based on each parent's education, training, and work experience, and the availability of work in or near the parent's community. Section 767.511(1m), Wis. Stats.

If the court enters an order deviating from the percentage standards, the court is required to state in writing or on the record the amount of support that would be required if the percentage standards were used. The court must also state the amount by which the court's order deviates from that amount. Finally, the court must explain the reasons for the deviation, as well as the reasons and basis for determining the amount of the deviation. Section 767.511(1n), Wis. Stats.

Similar to spousal support, any ordered child support is required to be paid by income assignment directly from the payor’s employer to the Wisconsin Support Collections Trust Fund (WI SCTF). The payor is only allowed to make direct payments to the WI SCTF if the payor is self-employed.

Additionally, as with orders for spousal support, child support orders must include the requirements that, within 10 business days (1) both the payer and the payee must notify the county child support agency of any change of address, and (2) the payer must notify both the payee and the county child support agency of any change in employer and any substantial change in the amount of income (including bonuses).

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