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Child Support

Is Jail an Appropriate Remedy for Failure to Pay Child Support?

Tuesday, May 19th, 2015

In Georgia, as well as in several other states, one way a state can enforce a court’s directing a non-custodial parent to pay child support is to incarcerate that non-custodial parent for failure to pay. In fact, not only can states and courts enforce child support order by jailing the offending non-custodial parent, but the Federal government may also levy criminal charges against a non-custodial parent who fails to pay child support.

Although incarceration is an available remedy for the failure of a non-custodial parent to pay child support, is it appropriate, and is it effective? In a recent article published by the The New York Times, many argue that although the “threat of jail [is] considered an effective incentive for people who are able but unwilling to pay,” sending non-custodial parents who are simply unable to pay to jail defeats the purpose.

Those who adopt this argument often rely on the fact that a non-custodial parent cannot pay child support while incarcerated and may lose his or her job as a result of that incarceration. Thus, this remedy is self-defeating. Those who advance this argument also contend that the reason many non-custodial parents find themselves in a situation where they are unable to pay child support is because the original child support orders obligated them to pay more than they were financial able to pay in the first place.

Although these arguments are sound, and may be applicable in some situations, there are many situations where a non-custodial parent, despite his or her ability to pay, simply refuses to do so. If that parent takes active measures to avoid paying child support, the question then is what should the court or the state do to ensure the best interest of the children effected are served. Although it may seem unsavory, the threat of jail is often a very effective tool to ensure that some non-custodial parents comply with their child support obligation.

Please note thought that if you are a non-custodial parent whose circumstances have changed, leaving you unable to pay child support as ordered by the court, there are steps you can take to reduce your child support obligation. One of those steps is seeking a downward modification of child support. For more information on who is eligible for such modifications and how to go about obtaining one, see our articles on child support and child support modification.

Child Support – Unexpected “Necessary” Expenses

Saturday, April 11th, 2015

 

At times, it seems that expenses for one’s children are never ending. From extracurricular activities to camp and everything in between, expenses for one’s children seem to pop up on a daily basis. This can be especially apparent for divorced parents, as they may constantly have to ask for reimbursement for these expenses from the other parent, which can create awkwardness in an already delicate relationship. Most of the time these expenses have to be paid before a child can participate in a given activity. In that situation, the parents (hopefully) have already agreed on the child’s participation and how the expenses will be divided. But what happens if a child participates in something for which payment is not due until after the fact, and then a parent (or both parents) do not want to pay?

 Under Georgia law, each parent is liable to third parties “for the board and support and for all necessaries furnished to or for the benefit of the parties’ children.” O.C.G.A. § 19-6-13. This liability will remain until someone voluntarily pays the amount owed for board, support or other necessaries, or until there is a court order providing for payment or otherwise. Id.

 Consider a situation where a child has a condition that requires a long-term hospital stay. Consider further that insurance covers part of the expenses associated with this stay, but not all of them. The divorced parents disagree about who should be responsible for these out of pocket expenses and, as a result, the hospital bill does not get paid. It might be a situation where the divorce decree did not allocate expenses such as these, or it may be a situation where the decree did allocate the costs to one parent, but that parent refuses to pay. According to the Georgia law cited above, the hospital can sue both parents for the amount owed. If the divorce decree specifies how these expenses are to be allocated and one parent is just being difficult, that parent could additionally be held in contempt of the divorce decree. While this will not prevent the other parent from being dragged into the lawsuit by the hospital, he/she may have some solace knowing that, in the end, the other parent will get what he/she deserves.

 To prevent a situation such as this, make sure the child support language in your divorce decree is very thorough to cover any expected and unexpected expenses related to the children. If a specific expense is not addressed in the decree, try to work it out with your ex ahead of time so you can avoid being dragged into court.

Million Dollar Child Support

Thursday, April 2nd, 2015

As reported by CNBC and CNN Money, the estranged wife of Citadel LLC founder Ken Griffin is seeking a whopping $1 million per month child support award from the wealthy hedge fund manager. Specifically, according to Anne Dais Griffin, she is seeking the child support award to provide the couple’s three children with “the support to which they are accustomed and entitled under Illinois law.” From Anne Griffin’s perspective, the requested child support amount is based on an accounting of the couple’s child care expenses while they were married. However, Ken Griffin contends that Anne is seeking the hefty child support award to support her own spending habits.

Assuming $1 million per month is truly reflective of how much the couples spent each month to care for their children during the marriage, Anne may be justified is seeking this award. According to Illinois state law concerning the calculation of child support:

“(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for the support of the child, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary educational, physical, mental and emotional health needs of the child. For purposes of this Section, the term “child” shall include any child under age 18 and any child under age 19 who is still attending high school.

(1) The Court shall determine the minimum amount of support by using the following guidelines:

Number of Children  Percent of Supporting Party’s Net Income

1                                              20%

2                                              28%

3                                              32%

4                                              40%

5                                              45%

6 or more                                50%

(2) The above guidelines shall be applied in each case unless the court finds that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical, mental, and emotional needs of the child;

(d-5) the educational needs of the child; and

(e) the financial resources and needs of the non-custodial parent.

If the court deviates from the guidelines, the court’s finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.”

750 ILCS 5/505 Sec. 505. Specifically, as highlighted in the Illinois law quoted above, in determining child support, the court may take into consideration the standard of living the child or children would have had if the divorcing parents stayed together.

It should be noted that Illinois law concerning child support is distinctly different from Georgia law concerning the calculation of child support. As can be seen above, presumptive child support amounts in Illinois are calculated according to the percentages set out in the chart above. On the other hand, child support in Georgia is calculated according to Georgia’s Child Support Calculator.  This is just one of the differences between child support laws in the various states. With this being said, it is extremely important to seek the advice of a team of experienced Atlanta child support attorneys if you are considering divorce or child support modification in Georgia

 

Child Support Conflict – There’s An App For That

Tuesday, March 17th, 2015

When you go through a divorce with children, your final decree will include the exact amount of child support the non-custodial parent must pay to the custodial parent each month. In Georgia, there is a child support worksheet into which parties can plug relevant information (i.e. income, health insurance, daycare/school expenses) to come up with the appropriate amount of child support. O.C.G.A. § 19-6-15. The worksheet takes into account known expenses for the children, but anyone who has children knows that unanticipated expenses come up all the time. These can include everything from unexpected medical expenses to extracurricular activities. If the custodial parent wants to be reimbursed for these expenses, he/she will have to work out payment with his/her ex, or involve attorneys to get payment, if the parties do not communicate well. Even for parents who get along and co-parent very well, the constant asking for money on top of child support may foster resentment between the parties, especially if the parent being asked for money does not know exactly where the money is going. Constantly asking for money for “soccer” may not sit well and may make visitation exchanges uncomfortable.

Fortunately, there are now websites and apps that can help parents in this situation. One app, called Our Family Wizard, allows a parent to put in an expense and attach a receipt. A notification then goes out to the other parent, much like a bill that needs to be paid. This takes the parent-to-parent communication out of the equation. If both parties join (it is $99/year per parent), they can even link their accounts and pay the bill by transferring money from one parent’s account to the other. As an additional benefit, the app allows member parents to use a shared calendar, which can likely help ensure everyone is on the same page about visitation times, vacations, etc.

There are several other websites/apps that provide a similar service: 2houses.com, thedivorcelog.com. Another option is using a shared Google doc. All of these options ensure there is transparency about expenses for the children and could work for both custody and child support. While some parents may not want to give up the personal communication about their children’s financial needs, others may want to give up the stress that comes along with it. Figure out what works best for you, but don’t be afraid to utilize some of these programs if they could have a positive impact on your co-parenting.

 

Is Child Support Dischargeable in Bankruptcy?

Saturday, March 7th, 2015

As Atlanta Divorce attorneys, it is our experience that divorce and bankruptcy are often interrelated. As a result, we are commonly asked whether child support and other financial obligations incurred in divorce, such as alimony, are dischargeable in bankruptcy. The short answer to this question is no. According to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), domestic support obligations, such as child support and alimony, are not dischargeable in bankruptcy. Thus, if a former spouse obligated to pay child support or alimony files for bankruptcy protection, he or she will still owe the child support or alimony once the bankruptcy has concluded.

With this in mind, if you are seeking divorce, and you and/or your spouse are also considering bankruptcy, it is essential to discuss this issue with your divorce attorney. Additionally, it is also advisable to retain a divorce attorney who is well versed on how bankruptcy impacts the divorce process.

Is Child Support Dischargeable in Bankruptcy?

Sunday, February 22nd, 2015

As Atlanta Divorce attorneys, it is our experience that divorce and bankruptcy are often interrelated. As a result, we are commonly asked whether child support and other financial obligations incurred in divorce, such as alimony, are dischargeable in bankruptcy. The short answer to this question is no. According to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), domestic support obligations, such as child support and alimony, are not dischargeable in bankruptcy. Thus, if a former spouse obligated to pay child support or alimony files for bankruptcy protection, he or she will still owe the child support or alimony once the bankruptcy has concluded.

With this in mind, if you are seeking divorce, and you and/or your spouse are also considering bankruptcy, it is essential to discuss this issue with your divorce attorney. Additionally, it is also advisable to retain a divorce attorney who is well versed on how bankruptcy impacts the divorce process.

My Child Support is Too High! What Should I Do?

Tuesday, January 13th, 2015

The brief answer to this question is to seek the help and advice of a knowledgeable Georgia child support attorney. Once you do, he or she will likely advise you that seeking a child support modification may be a viable option for you. A child support modification is a legal action that may be initiated to modify the terms of a prior court order establishing child support, such as a final divorce decree or a paternity order. A child support modification action may be initiated by either the parent obligated to pay child support, or the recipient parent. In order for a parent to seek and obtain a modification of child support, he or she must allege and show that there has been a change in the income or financial status of either parent or in the needs of the minor child or children. O.C.G.A. § 19-6-19(a).

Specifically, if you are an obligated parent who feels your current child support obligation is too high based on your current financial circumstances, seeking a child support modification may be the best course of action for you. Speak with an Atlanta Divorce Attorney today to determine if the change in your financial status qualifies you to seek a child support modification.

Should I Seek Child Support During my Georgia Divorce?

Sunday, January 4th, 2015

Just as many individuals considering divorce or currently going through the divorce process wonder whether to seek alimony, many also wonder whether to seek child support. Although in most cases there is no question that the custodial parent should seek child support from the non-custodial parent to allow the custodial parent to adequately meet the needs of the child or children involved. However, in situations where the economic resources and earning potential of each parent is relatively equal, some parents may wonder whether it is appropriate or even necessary to seek child support from the other parent.

Fortunately, Georgia law provides an answer for those parents wondering whether to seek child support, and that answer is: yes. In fact, according to Georgia law, parents really do not have the option to waive, or not seek, child support. Because child support is a right that belongs to the child, child support cannot be legally waived by a custodial parent on behalf of the child. Bisher v. Jones, 267 Ga.App. 389 (2004). What this means practically is that a custodial parent cannot choose not to seek child support, and a custodial parent may not agree for the non-custodial parent to pay no child support.

However, in situations where both parents have relatively equal incomes, or in cases where other circumstances may make it appropriate for the non-custodial parent to pay very little or no child support, certain child support deviations may be used to ensure an equitable result. For more information on how to determine the most appropriate child support calculation in your divorce case, speak with one of our child support attorneys at Meriwether & Tharp.

I Divorced in another State, can I Modify the Child Support Order in Georgia?

Saturday, December 20th, 2014

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The short answer to this question is yes. However, the process to modify an out of state child support order in Georgia is slightly different that the process associated with modifying an instate child support order.

The section of Georgia law that governs the modification of out of state child support orders is different than the section of Georgia law that governs actions to modify child support orders entered in Georgia. According to the relevant sections of Georgia law:

A party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another state shall register that order in Georgia in the same manner provided in Code Sections 19-11-160 through 19-11-163 if the order has not been registered. A petition for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.

O.C.G.A. § 19-11-168.

Any parent seeking to register an out of state child support order in Georgia must send the following documents and information to the appropriate court:

  • A letter of transmittal to the tribunal requesting registration and enforcement;
  • Two copies, including one certified copy, of all orders to be registered, including any modification of an order;
  • A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage;
  • The name of the obligor and, if known:
    • The obligor’s address and social security number;
    • The name and address of the obligor’s employer and any other source of income of the obligor; and
    • A description and the location of property of the obligor in Georgia not exempt from execution; and
  • The name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.

O.C.G.A. § 19-11-161. See also O.C.G.A. § 19-11-160 and 19-11-162. Once the appropriate court receives the request for registration, the court will file the order as a foreign judgment. Id. Only once the foreign order has been registered may a Georgia court then modify or enforce that order. Because registering an out of state child support order in Georgia is a complex legal matter, it is advisable to seek the help of an experienced Georgia family law attorney to do so.

Can I Waive Child Support in My Georgia Divorce?

Monday, December 8th, 2014

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The short answer to the above posed question is no. One parent may not waive the child support obligation of the other parent during divorce. Now, for the more detailed answer…

Although almost every aspect of Georgia divorce may be negotiated between the two parties, child support is an area of Georgia divorce that may not be completely controlled by the agreement between the two parties to divorce. Specifically, child support may not be waived by the custodial parent on behalf of a minor child. Child support is a right that belongs solely to the minor child or children involved in the matter, not the parents. Bisher v. Jones, 267 Ga.App. 389 (2004). Although a parent may not waive the right to child support, parents may come to a mutual agreement concerning the amount of child support to be paid by the non-custodial parent, so long as the agreed upon amount comports with the standards set out by Georgia’s Child Support Calculator. Additionally, parents may also agree that the parent obligated to pay child support will give up his or her right to seek a downward modification, or reduction, in the amount of child support to be paid to the custodial parent. Forrester v. Buerger, 241 Ga. 34 (1978).

For more information about child support in Georgia, and what parents may agree upon, and what parents may not agree upon as it relates to child support in Georgia, contact one of our knowledgeable divorce professionals at Meriwether & Tharp.