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Child Support

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.

Man in Michigan Owes Child Support for Child Who Isn’t His

Tuesday, November 25th, 2014

Generally, child support can be explained quite simply: If you have a child who is living with his/her other parent, you will owe some amount of child support. It seems obvious to say that a person will not owe child support for a child that is not his/hers. However, a man in Michigan is facing jail time for not paying $30,000 in child support for a child that is not his. Court says man owes child support for kid who isn’t his, by Katherine Biek, ajc.com, October 28, 2014.

The facts in this case are almost unbelievable.  Carnell Alexander’s ex-girlfriend put his name down as the father of her child when she applied for state assistance 27 years ago. She put his name down only after being told that failing to list a father (or a list of potential fathers) could result in her benefits being reduced or cancelled.  Once she listed his name, the child support began accruing, despite the lack of other evidence that he was the father. Alexander didn’t even know she had listed him as the father until he was pulled over for a routine traffic stop a few years later and found out there was a warrant for his arrest for failing to pay $70,000 in child support.

Now, despite having a DNA test that proves he’s not the father, he shockingly remains on the hook for the money.  A Michigan judge said that Alexander is still required to pay $30,000 owed to the state since he never signed a summons issued to him.  But Alexander has alleged that he wasn’t even aware of the child support case or summons because he was in prison at the time it was filed. Even the ex-girlfriend is stepping up to try to help Alexander.  According to the article, she knows that his predicament is her fault, and she has reached out to the court on his behalf.  In addition, the real biological father is in the child’s life now, which makes everything that much more preposterous.  Despite all of these facts, which seemingly discharge Alexander of this obligation, the Michigan court is remaining firm: pay the back-owed child support in the amount of $30,000 or go to jail.

If you are a man who is being alleged to be the father of a child, and you do not believe you are that child’s father, get a DNA test immediately. Then, if you are ever served with a child support case, do not ignore it, just because you have DNA results proving you are not the father. Make sure you timely respond to the case and submit your DNA results. You will need a court order declaring you are not the father to make sure you do not end up on the hook for child support payments. Once you do get this order, keep it in a safe place so you can find and use it as needed in the future.

Failure to Pay Child Support in Georgia May Result in Termination of Parental Rights

Tuesday, September 2nd, 2014

In Georgia, failure to pay court ordered child support comes with a variety of penalties. Such penalties generally include:  contempt citations, suspension of driver’s, hunting and fishing licenses, denial of passport applications, and potentially incarceration. If these penalties seem severe, it is because they were designed in an effort to dissuade non-payment of child support. However, the above mentioned penalties pale in comparison to what may be considered the ultimate penalty for failure to pay court ordered child support: termination of parental rights.

Georgia statutory law states the following with respect to the termination of non-custodial parents’ parental rights for non-payment of child support:

(b) Except as provided in subsections (e) through (h) of Code Section 15-11-96, the court by order may terminate the parental rights of a parent with respect to the parent’s child if: […] (2) A decree has been entered by a court of competent jurisdiction of this or any other state ordering the parent, guardian, or other custodian to support the child, and the parent, guardian, or other custodian has wantonly and willfully failed to comply with the order for a period of 12 months or longer.

O.C.G.A. § 15-11-94(b)(2).

The two most notable elements of this law are: 1) the non-payment must be “wanton and willful,” and 2) the non-payment must be in contravention of a court order to pay child support. According to the Georgia Court of Appeals, “wanton and willful” is defined as “without reasonable excuse, with a conscious disregard for duty, willingly, voluntarily, and intentionally.” In re H.B. and K.B., 174 Ga. App. 435 (1985). Thus, for example, if a parent’s non-payment is due to being laid off from his or her employment, such non-payment is not “wanton and willful.” In re S.G.T., 175 Ga. App. 475 (1985). With regard to the second element, a non-custodial parent’s parental rights may not be terminated due to failure to pay child support if no court order was ever issued obligating that parent to pay child support. Uniroyal Goodrich Tire, Co. et al. v. Adams et al., 221 Ga. App. 705 (1996).

With the above in mind, termination of parental rights is often only sought in the most severe cases of abandonment and non-support.

 

Failure to Pay Child Support is Downright Criminal

Sunday, August 24th, 2014

Many are aware that failure abide by a court order to pay child support comes with several consequences, including: contempt citation, garnishment, revocation of hunting, fishing and driver’s license, and passport denial. However, many parents may not be aware that failure to pay child support in the state of Georgia may also constitute a criminal offense, punishable by imprisonment.

Georgia statutory law regarding the criminal offense of non-support, formerly referred to as child abandonment, states in relevant part:

 “(a) A child abandoned by its father or mother shall be considered to be in a dependent condition when the father or mother does not furnish sufficient food, clothing, or shelter for the needs of the child. (b) If any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, he or she shall be guilty of a misdemeanor. Moreover, if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, and leaves this state or if any father or mother willfully and voluntarily abandons his or her child, either legitimate or born out of wedlock, leaving it in a dependent condition, after leaving this state, he or she shall be guilty of a felony punishable by imprisonment for not less than one nor more than three years. The felony shall be reducible to a misdemeanor. Any person, upon conviction of the third offense for violating this Code section, shall be guilty of a felony and shall be imprisoned for not less than one nor more than three years, which felony shall not be reducible to a misdemeanor. The husband and wife shall be competent witnesses in such cases to testify for or against the other.”

O.C.G.A. § 19-10-1(a)-(b). Although the above cited statute does not explicitly set out what constitutes willful and voluntary abandonment, Georgia case law interpreting this statue suggests that failure to pay court ordered child support may subject a non-custodial parent to prosecution pursuant to this statute. For example, in Carter v. State, 287 Ga. App. 463 (2007), father was ordered to pay child support in the amount of $114 per month. He failed to make those court ordered payments in April 2003, December 2003, April 2004, May 2004, July 2004, September 2004, October 2004, January 2005, March 2005, and August 2005. As a result, he was charged with and convicted of ten counts of misdemeanor child abandonment. On appeal, the Georgia Court of Appeals affirmed the trial courts judgment, because sufficient evidence was presented at trial indicating that the defendant failed to meet his obligation despite being employed and having the ability to pay. Id.

Criminal non-support is a serious offense, and as outlined in the above cited statute it may constitute either a misdemeanor or a felony. If convicted of misdemeanor abandonment, a parent may face up to 12 months in jail, a $1,000 fine, or both. O.C.G.A. §17-10-3. If convicted of felony abandonment, a parent may face up to three years of incarceration. O.C.G.A. § 19-10-1(b).

Although civil contempt actions are generally the preferred method for custodial parents to enforce child support orders in Georgia, a custodial parent wishing to initiate criminal proceedings against a non-custodial parent for failure to pay child support may contact their counties Solicitor’s Office or Prosecuting Attorney’s Office.

Not Paying Court Ordered Child Support? Your Licenses and Passport Could be at Risk

Sunday, July 20th, 2014

Failure to pay court ordered child support carries serious consequences in Georgia. In addition to being subject to an action for contempt, a mother or father obligated to pay child support who fails to honor this obligation may also be at risk of losing his or her driver’s license, fishing license, hunting license, and professional licenses.

Georgia law regarding the suspension of such licenses states:

“In any proceeding for enforcement of a judgment or order to pay child support, if the court is satisfied by competent proof that the respondent has accumulated support arrears equivalent to or greater than the current support due for 60 days and that the respondent is licensed to conduct a trade, business, profession, or occupation, licensed to hunt or fish, licensed to drive a motor vehicle, owns a motor vehicle which is registered in this state in his or her name, or is applying for the renewal or issuance of any such license or registration, the court may order the appropriate licensing or registering entity to suspend the license or registration or deny the application for such license and to inform the court of the actions it has taken pursuant to such proceedings. […]”

O.C.G.A. § 19-6-28.1(b).    

Not only may an obligated parent’s state issued licenses be revoked or suspended for failure to pay court ordered child support, an obligated parent’s passport may also be revoked. According 22 CFR Part 51.70 (a)(8), which a Federal regulation regarding the issuance and denial of passport applications, a person who has been certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, is ineligible to receive a U.S. passport.

Because the risks associated with the failure to pay court ordered child support are so great, it is advisable for any non-custodial parent obligated to pay child support who is unable to make timely child support payments to seek a modification of child support in lieu of ignoring their obligation.

No Retroactive Child Support in Georgia

Wednesday, June 4th, 2014

Many states embrace the concept of retroactive child support or “back child support,” but Georgia is not one of those states.  Although there are certain circumstances under which a custodial parent may recover some of the costs actually incurred caring for a minor child from the non-custodial parent, a Georgia court will not award a custodial parent a set monthly award for a past period of time during which a valid child support order was not in place. O.C.G.A. §19-6-15.

What this means practically for non-custodial parents is a court will not require a non-custodial parent to pay the custodial parent the amount of monthly support that he or she would have otherwise been required to pay from the date of the child’s birth to the present if a valid child support order was in place. For example:

Child was born in 2000. Mother did not seek and obtain a valid child support order against Father until 2013. In 2013, Father is ordered to pay Mother $500 per month in child support. Father must pay this monthly amount going forward. He will not be required to pay Mother $500 per month for the 13 years that elapsed prior to the entry of the child support order (or $78,000).

Georgia law does not recognize the concept of back child support, but it does not totally abandon custodial parents who have incurred considerable expenses caring for their children without the aid of the non-custodial parents. Once a prospective child support order is entered, a Georgia court may order the non-custodial parent to reimburse the custodial parent for a portion of the expenses incurred on half of the minor child or children.

Although this is very uncommon, if the custodial parent can prove the actual expenses incurred on behalf of the minor child (these may include pre-natal and post-birth expenses), a court may order the non-custodial parent to reimburse a portion of these expenses. Weaver v. Chester, 195 Ga. App. 471 (1990); Coxwell v. Matthews, 263 Ga. 444 (Ga., 1993); Smith v. Carter, 305 Ga. App. 479 (2010).

 

How Child Support Is Calculated In Georgia

Tuesday, May 20th, 2014

Child support in Georgia is calculated using the income shares model, which was adopted by the Georgia legislature in 2007. Prior to January 1, 2007, Georgia calculated child support based on the income of the non-custodial parent solely. Now that Georgia follows the income shares model, child support is calculated by taking into account each parent’s income to ultimately determine how much child support the noncustodial parent will be ordered to pay.

The first step in calculating child support in Georgia is to determine each parent’s presumptive child support obligation. In doing so, the gross income of each parent must be determined. For the purposes of child support calculation, gross income includes  salary, wages, commissions, self-employment income, bonuses, overtime pay, severance pay, pension and retirement income, interest income, dividend income, trust income, capital gains, Social Security disability payments, worker’s compensation benefits, unemployment benefits, judgments from personal injury claims or other civil cases, gifts, prizes, and any other sources of income.

Once each parent’s gross income is determined, both parent’s monthly income is added together to determine the combined monthly income earned by both parents. Georgia’s basic obligation table must then be consulted to determine the combined basic support obligation. The basic obligation table is a chart that corresponds basic child support obligations with combined monthly incomes. After consulting the basic obligation table and determine the combined basic child support obligation, that amount must be divided proportionally between the parents, depending on the percentage of each parent’s contribution to the combined income amount. For example:

Father makes $2,500 per month. Mother earns $7,500 per month. Father is the custodial parent. The couple’s combined monthly income is $10,000. According to the basic obligation table, the couple’s combined monthly child support obligation is $1,259.00 for one child. Because Mother makes 75% of the combined gross income and she is the non-custodial parent, she is obligated to pay to Father 75% of the combined child support obligation or $944.25.

After the basic child support obligation is determined for each parent, there are adjustments and deviations that may be made to the presumptive child support amount to account for certain special situations or other payments a parent is making on behalf of the minor child or children who will benefit from the child support obligation. For the convenience of both practitioners and litigants, the Georgia Child Support Commission offers a free child support calculator, commonly referred to as Georgia’s Child Support Worksheet, which will automatically calculate the non-custodial parent’s child support obligation once each parent’s gross income is imputed. This online calculator may be found at the Georgia Child Support Commission’s website.

It is important to only use the Georgia child support calculator when determining the presumptive child support amount or calculating the final child support amount in a Georgia divorce or family law matter. In fact, the Georgia Child Support Commission has a warning on its website concerning the use of unauthorized child support calculators commonly available on the internet:

“It has come to our attention that several websites are hosting “calculators” to estimate Georgia child support. Please be cautious if using these calculators. In a simple test, one calculator’s monthly support was off by $100, and another was off by $990!

We do wish to thank those whose web sites provide accurate information about Georgia child support and provide a link to the official calculators.”

– The Staff of the Georgia Child Support Commission

 

The Upside of Income Deduction Orders

Monday, May 12th, 2014

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In Georgia, income deduction orders, more commonly referred to as IDOs, are court order that require employers to withhold child support payments from the wages of the parent obligated to pay child support. Similar to several other states, all child support orders issued in Georgia after January 1, 1994 must order the immediate withholding of child support from the earnings of the obligated parent, unless the court finds or the parties agree that an IDO is not necessary in a particular case. See O.C.G.A. § 19-6-32.

Although the intent behind Georgia’s policy regarding income deduction orders is to speedy and efficient payment of child support, many non-custodial parents obligated to pay child support firmly income deduction orders because of the negative stereotype often associated with having child support payments directly withheld or garnished from wages.  Obligated parents should be aware however that despite the negative stereotype associated with IDOs, there are several upsides to having an IDO in place for the purpose of paying child support. For example, because income deduction orders require child support payments to be automatically withheld from the non-custodial parent’s paycheck by that parent’s employer:

  • Unnecessary contact between the non-custodial and custodial parents is eliminated

  • There is no concern that the payment will be forgotten or arrive late

  • There is no need for the non-custodial parent to manually deliver payments to the custodial parent via the mail or in-person

  • Both parties have a complete and accurate record of payments made maintained by an impartial third party source

  • The non-custodial parent has peace of mind knowing that his or her payments will be received by the custodial parent on time and in accordance with the court’s order

These are only a few examples of the advantages income deduction orders may have from a non-custodial parent’s point of view.

Deadbeat Mom?

Monday, May 5th, 2014

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When non-custodial fathers are ordered by the court to pay child support and continuously fail to do so, it is not uncommon for such non-custodial parents to be referred to as “deadbeat dads.” Although the term “deadbeat dad” is widely recognized as referring to a parent who shirks his child support obligation, this term has incorrectly limited the stigma associated with non-payment of child support to fathers. In fact, in Georgia and throughout the United States, there are several non-custodial mothers who have been ordered by a court to pay child support, but fail to do so.

According to data collected by the U.S. Census Bureau and included in a report issued in 2013 entitled: Custodial Mothers and Father and Their Child Support: 2011, custodial fathers are actually less likely to receive full or even partial payments of child support awarded to them for the benefit of the minor children in their custody than custodial mothers.  The data included in this report reveals that in 2011 there were approximately   2,643,000 custodial fathers in the U.S. Of those custodial fathers, 760,000 were awarded child support from the non-custodial mother. Of the fathers that were awarded child support, 459,000 (or 68.1%) received some or all of the child support owed to them from the non-custodial mother. Only 279,000 (or 41.4%) received full payment. What this means practically is that of the fathers owed child support in the U.S., around 31.9% are not receiving any payments at all.

Conversely, according to this same census report, of the 6,297,000 custodial mothers entitled to receive child support in 2011, 4,182,000 (74.8%) are receiving some payments and 2,438,000 (43.6%) are receiving full payment. Thus, 26.2% of custodial mothers are not receiving any of the payments they are entitled to. What this evidence shows is that statistically, custodial fathers are getting the short end of the stick when it comes to realizing court ordered child support payments.  Thus, although the term “dead beat mom” is not as universally recognized as that of “deadbeat dad”, maybe it should be.