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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

When a mother is not married, it's not always clear who the father is -- and whether or not he must pay child support.

ACKNOWLEDGED FATHER

An acknowledged father is any biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

PRESUMED FATHER

If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:

In some states, the presumption of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child. A presumed father must pay child support.

UNWED FATHER

An unmarried man who impregnates a woman is referred to as an unwed father. Unwed fathers have few rights concerning their children. For example, an unwed father does not have the right to require the mother of the child to obtain his consent, or even notify him, before she undergoes an abortion. If the mother decides to bear and keep the child, however, the unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, he has the right to visitation with his child and may seek custody.

STEPFATHER

A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.

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SIDE NOTE - ADULTERINE BASTARD

Adulterine bastard, though not used in many places, is a term used to describe a child born to a married woman when the woman's husband is not the father of the child. This may occur if a woman becomes pregnant by someone other than her husband during the marriage; if a woman enters the marriage already pregnant (by someone other than her husband); or if a woman, without her husband's consent, becomes pregnant through artificial insemination by donor.

In the past, many divorcing husbands attempted to evade paying child support in these situations, claiming that the children were adulterine bastards and therefore not "theirs." Many states, however, have laws which irrebuttably presume (that is, the presumption cannot be disproved) that a child born during a marriage is the child of the husband, regardless of who the biological father is.
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EQUITABLE PARENT

In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

SUPPORT OBLIGATIONS

All states require natural parents and adoptive parents to support their children until:

ILLEGITIMATE CHILD

A father is obligated to support all of his children, regardless of whether he was married to the mother. Children born to parents not legally married to each other are sometimes termed illegitimate unless and until the parents later marry. This term is used infrequently today, and has little legal effect except where the law expressly gives rights only to legitimate children. For instance, illegitimate children are denied the right to inherit from their fathers in some states.

EMANCIPATED MINOR

A minor demonstrating freedom from parental control or support is considered emancipated, or may be declared emancipated by a court. Child support obligations to the parents of emancipated minors may be canceled by the court. For obvious reasons, most states do not allow parents to unilaterally declare their children emancipated; rather, a special proceeding must be brought to have the child declared emancipated by a court and the support obligation terminated.

GUIDELINES FOR TEMPORARY CHILD SUPPORT

In some states, legislatures publish tables or formulas that calculate a range of child support to be paid. Courts use these tables as guidelines to determine the amount of temporary child support to be paid while the divorce is pending. If the parties cannot agree on an amount, the temporary amount is imposed at a preliminary hearing and may be altered when the court has a better understanding of what will be best in the long run.

FAMILY SUPPORT ACT OF 1988 (42 U.S.C. SECTION 666)

The Family Support Act of 1988 reformed the U.S. welfare system by emphasizing enforcement of child support orders against delinquent parents and expanded job training and educational opportunities to reduce parents' reliance on welfare.

Under the act, all states must include automatic wage attachments in new or modified child support orders, with few exceptions. The act also encourages states to use paternity tests to establish responsibility for child support, and requires the use of guidelines in making support awards. By 1995, states must develop automatic tracking and monitoring systems for parents not paying support. And because refusal to pay child support is often linked to frustrated visitation, the act funds projects to improve noncustodial parents' access to their children.

OTHER TERMS OF THE FAMILY SUPPORT ACT

The act also creates a new Job Opportunities and Basic Skills Training (JOBS) Program to help welfare recipients enter or reenter the job market. Participation is required, except for parents who are pregnant or caring for children under age three. Parents with children under six need only participate part-time. If a parent fails to participate, she loses her Aid to Families with Dependent Children (AFDC) benefits.

While each state's program is different, all offer basic education and skills training, and may offer on-the-job training, community work experience and job searching. They focus on unemployed custodial and noncustodial parents who are, or are likely to become, long-term welfare recipients. The states must provide child care and Medicaid for up to one year to assist the transition from welfare to work.

Before the act, in some states, AFDC was available for only single parents. Now it offers benefits, including cash assistance, job training, Medicaid and child care, for intact families whose principal earner is unemployed.

PATERNITY ACTION

A court suit filed to have a man declared the father of a child is called a paternity action. It can be brought by either the mother or the father. If paternity is established, the court will order the father to pay child support and grant him custody or visitation rights. Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy, and can rule out paternity with 100% accuracy.

Most paternity actions are initiated by welfare officials who provide AFDC to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her AFDC grant.

ESTABLISHMENT HEARING

Establishment hearing is another term for a paternity action.

FILIATION HEARING

Filiation hearing is another term for a paternity action.

PARENTAGE ACTION

Parentage action is another term for a paternity action.

FINANCIAL STATEMENT

A financial statement is a court paper which requires a party to specify her monthly income and expenses. The court often requires each divorcing spouse to fill out a financial statement so that the court has a complete picture of the parties' financial situations before making a decision on child support.

CHILD SUPPORT

Under the Child Support Enforcement Act of 1984 (42 U.S.C. 651 and following), federal law now requires each state to develop guidelines to calculate a range of child support to be paid, based on the parents' incomes and expenses.

Courts are supposed to strive for fairness to the parents in establishing the dollar amount of child support obligations. They are thus given discretion to apportion child support responsibility between parents according to their relative financial circumstances. Some states' laws specify factors which must be considered in determining who pays child support, and how much. These include the needs of the child-- including health insurance, educational needs, day care, and special needs of the child - the needs of the custodial parent, the payer's ability to pay and the standard of living of the child before divorce.

NEEDS OF THE CHILD

Normally, child support payments are based on two factors - the ability of a parent to provide support and the child's needs.

RELATIVE INCOME AND ASSETS

When setting child support, a court normally considers the relative income and assets of both spouses. If the custodial parent earns more than the noncustodial parent, child support may be a nominal amount. In the real world, however, the custodial parent is usually the mother and normally has much less income than the noncustodial father. Accordingly, when courts consider the relative assets and income of the parties, they usually end up awarding child support to the custodial parent.

ABILITY TO PAY

Courts always consider a person's ability to pay when setting his child support obligations. A court looks at the payer's gross income from all sources (wages, public benefits, interest and dividends on investments, rents from real property, profits from patents and the like, and any other sources of income), less any mandatory deductions (income taxes, Social Security, health care and mandatory union dues). The result is the payer's net income.

In most states, deductions for credit union payments, wage attachments and the like are not subtracted when calculating net income. Thus, if John makes $2,000 per month, and income tax, Social Security, unemployment insurance benefits and other government deductions reduce his income to $1,500, this is his net income. The fact that $300 more is withheld to pay a credit union loan does not further reduce his net income for the court's purposes. The reason for this rule is that the law accords support payments a higher priority than other types of debts, and would rather see other debts not paid than have a spouse or child go without adequate support.

Also when setting support obligations, in some states the court may take into account the reasonable expenses incurred by the paying spouse for his own basic necessaries of life (such as rent or mortgage, food, clothing and health care). Courts, however, typically do not allow expenses such as school expenses, dining outside the home and entertainment to influence their support determination on the theory that family support should come before these types of personal expenses. And in a growing number of states, the expenses of the paying spouse are irrelevant.

ABILITY TO EARN

When a court computes the amount of child support to be paid by a parent, both parties' ability to earn is usually taken into account. Actual earnings are an important factor in determining a person's ability to earn, but are not conclusive where there is evidence that a person could earn more if she chose to do so.

For example, assume a parent with an obligation to pay child support leaves his current job and enrolls in medical or law school, takes a job with lower pay but good potential for higher pay in the future, or takes a lower paying job that provides better job satisfaction. In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children's current needs take priority over the parent's career plans and desires.

STANDARD OF LIVING

When a court sets child support, it often considers the family's pre- divorce standard of living and attempts to continue this standard for the children, if feasible. Courts, however, are aware of the difficulty of maintaining two households on the income that formerly supported one home. Maintenance of the same standard of living is therefore more of a goal than a guarantee.

SUPPORT ENFORCEMENT

Each installment of court-ordered child support is owed and to be paid according to the date set out in the order. When a person ordered by a court to pay child support does not comply, the overdue payments are called arrearages or arrears. Courts have become very strict about enforcing child support orders and collecting arrearages, and to that end, many state and federal laws have been passed to aid in collection.

While the person with arrears can ask a court for a modification of future payments, the court will usually insist that the arrearage be paid in full, either immediately or in installments. For this reason, if a parent with a child support obligation starts falling behind because his income has decreased or his debts have increased, he should immediately seek a temporary modification.

RETROACTIVE MODIFICATION OF CHILD SUPPORT

Courts are supposed to refuse to retroactively modify a child support obligation. This means if a person has been unable to pay support, he may petition the court for a reduction, but even if the court reduces future payments, it should hold him liable for the full amount of support due and owing.

Example: Joe has a child support obligation of $300 per month. Joe is laid off of his job, and six months pass before he finds another one with comparable pay. Although Joe could seek a temporary decrease on the grounds of diminished income, he lets the matter slide and fails to pay any support during the six-month period. Joe's ex-wife later brings Joe into court to collect the $1,800 arrearage; Joe cannot obtain a retroactive ruling excusing him from making the earlier payments.

CHILD SUPPORT ENFORCEMENT ACT OF 1984

Under this law, the district attorneys (or state's attorneys) of every state must offer collection assistance to the recipient parent. Sometimes this means serving the other parent with papers requiring him to meet with the D.A. and arrange a payment schedule, and telling him that if he refuses to meet or pay, he could go to jail. If the nonpaying parent has moved out of state, the D.A. or the recipient parent can use legal procedures to locate him and seek payment. Federal and state parent locator services can also assist in locating missing parents. In addition, federal laws permit the interception of tax refunds to enforce child support orders. Other methods of enforcement include wage attachments and seizing property.

REVISED UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT (RURESA)

This law (or its predecessor, the Uniform Reciprocal Enforcement of Support Act), has been enacted by every state. It permits a parent who is owed child support to collect it by using the court in her state to enforce her child support order against the other parent living in another state. The court in the state where the recipient parent lives contacts a court in the other parent's state, which in turn requires the parent to pay. This procedure is free for the party seeking support.

As a practical matter, this procedure often falls short of its stated goals. District attorneys commonly give these cases low priority and often have large backlogs of pending RURESA cases. Also, when the party who owes the support is hauled into court halfway across the country, judges often do not order payment of very much support. This is because they have very little information and only one parent before them, who is generally more convincing than the papers in the file which have been forwarded from the court in the state where the parent seeking the support lives.

UNIFORM INTERSTATE FAMILY SUPPORT ACT OF 1992 (UIFSA)

The Uniform Interstate Family Support Act of 1992 is the latest effort of reform in child support obligation enforcement. The proponents of the act hope that states will adopt it to replace RURESA. This law simplifies, streamlines and strengthens the process by which a parent can enforce a child support order against the other parent in another state. Thus far, UIFSA has been adopted in Arkansas and Montana.

PARENT LOCATOR SERVICE

Parent locator services have been created by state and federal governments to assist a parent in locating her child's other parent in order to enforce child support orders. They also help parents locate missing children who may have been concealed by the other parent. Many parent locator services are associated with district attorney or state's attorney offices.

WAGE ATTACHMENT

A wage attachment is a court order requiring an employer to deduct a certain amount of money from an employee's paycheck each pay period in order to satisfy a debt. Wage attachments are often used to collect child support arrearages and to secure payment in the future. Under federal law, all states must include some type of automatic wage attachment - actually called a wage withholding - when a parent has been ordered to pay child support. In some states, the payer can get the wage withholding removed if he shows a history of reliable paying.

Example: In Texas, the automatic wage withholding requires that when a judge makes a child support order (or modifies an existing one), he immediately notify the payer's employer that the payer's wages are being attached to pay her child support. This applies to parents who have a history of non-payment, who have faithfully paid for years without ever missing a payment or who are paying for the first time and have never had an opportunity to make - or miss - a payment. The theory behind the automatic wage withholding law in Texas is that no parent suffers the stigma of a "nonpayer whose wages must be attached" if every parent's wages are withheld.

SUPPORT MODIFICATION

After a final decree of divorce is filed with a court, former spouses may agree to modify the child support terms. To be legally enforceable, even an agreed-upon modification for child support must be approved by a judge.

If the parents can't agree on a modification, the parent wanting the change must file a motion requesting a modification of the order from the court that issued it, usually on the ground of changed circumstances.

COST OF LIVING ADJUSTMENT (COLA) CLAUSE

A COLA clause in a child support order means that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). Some judges include COLAs in their orders when setting child support. This eliminates the need for any requests for modifications from the recipient claiming the cost of living increase as a changed circumstance.

TEMPORARY MODIFICATION OF CHILD SUPPORT

When the needs of a child change temporarily, or if the payer's ability to pay is temporarily impaired by illness, loss of job or other condition, a court may modify an existing child support order for a specific period of time to account for the temporary condition. At the end of the set period, the temporary modification terminates and the child support reverts to the prior terms unless a modified order for permanent child support is obtained. Although desirable, a temporary modification of child support may not be easy to obtain without a lawyer's help.

CHANGED CIRCUMSTANCES

When a party files a request for modification of child support, she must show that circumstances have changed substantially since the time of the previously issued order. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Below are several examples of change of circumstances.

Additional financial burden. When a child support obligation is temporarily made more difficult by an additional financial burden (for example, a medical emergency), a court may order a temporary modification of child support, reducing the amount to be paid. Likewise, a person to whom child support is owed may sometimes obtain a temporary increase in support if she faces a temporary additional economic hardship.

Additional income from remarriage. If a parent with child support obligations remarries and has some of his new spouse's income available for living expenses, the parent receiving the support may be able to get an increase by filing a request for modification. This is because the paying parent now has a greater share of his own income available to fund the increase.

In some situations, when a parent receiving child support remarries, the paying parent may be able to obtain a reduction in the amount of court- ordered child support he pays. This usually happens only if the recipient parent and the children have the benefit of the new spouse's income.

Change in law. When a law affecting child support is amended or a new law enacted, this by itself can sometimes constitute the changed circumstance necessary to file a request for modification of a prior child support order.

Change of job. When a person paying child support changes jobs and earns less income, he may be able to obtain a reduction in the child support payments by filing an appropriate request for modification. The change, however, must be in reasonable furtherance of his career development and future increased income opportunities. If the court believes that the decrease in income is for the purpose of lessening or avoiding support obligations, the request for modification will probably be denied.

If a person paying child support changes jobs and receives an increase in pay, the recipient may be able to obtain a corresponding increase in support.

Cost of living increase. When inflation reduces the value of child support payments, the recipient may cite her increased cost of living as a changed circumstance and request an increase.

Decrease in income. When a parent paying child support suffers a temporary decrease in earnings, she may be able to obtain from the court a temporary decrease of child support. If the payer suffers a permanent decrease in income, she should file a request for modification with the court, citing the decrease as the changed circumstance that justifies the request for a reduction.

Disability. A temporary disability suffered by a person paying child support may warrant a temporary decrease of child support. For example, if a construction worker with a child support obligation breaks his leg, a court may suspend his obligation to pay child support until he recovers and goes back to work. A permanent disability may warrant a request for modification of child support based on changed circumstances. Similarly, if a recipient of child support becomes disabled, a court may order an increase if her earnings decreased or her expenses increased (for example, health care or child care) as a result.

Financial emergency. A financial emergency occurs when a person is unexpectedly required to lay out money (for example, to pay sudden medical bills). When a person who pays child support suffers a financial emergency, he may file a request with the court for a temporary decrease of child support. When a person who receives child support suffers a financial emergency, she may ask the court for a temporary increase.

Hardship. If compliance with a legal obligation would cause a hardship on a person or his family, he may be excused from the obligation. For example, a payer's inability to meet a child support obligation without great economic suffering himself is a hardship. If a court finds this hardship substantial, the payer may be relieved of all or a part of his support obligation for a temporary or indefinite period. Because child support is calculated by formula, however, fewer and fewer courts grant hardship reductions.

Increase in income. Child support is based on both parents' financial situations. Thus, when either a paying or recipient parent's income increases, child support may be modified accordingly.

Medical emergencies. Medical emergencies that require large expenditures of money are the kind of temporary and catastrophic circumstances that may support a temporary modification of child support. If the child or the custodial parent suffers the emergency, the noncustodial parent may be required to temporarily increase payments (if he is able). Likewise, if the noncustodial parent is the one with the emergency, his duty to support may temporarily be eased by the court.

Needs of the child. If a child's financial needs decrease after the level of support has been set, a decrease in child support may be ordered if the paying parent files a request for modification to the court. This may occur, for example, if a child changes from private school to public school. If a child inherits a large sum of money, however, a court will not make the modification because state laws generally prohibit inherited money from being used for the child's day- to-day support. (Parents are obligated to support children; children are not required to support themselves.) Conversely, if a child's financial needs increase (for example, a sudden need for tutoring or medical care), an increase in child support may be awarded by a court if the parent who receives the payments can show changed circumstances and submits a request for modification to the court.

New support obligation. A parent paying child support may attempt to reduce his payments after assuming a new legal support obligation. Many courts, however, do not look favorably upon parents who seek to reduce child support obligations in order to support second families.

TAX CONSEQUENCES

For federal income tax purposes, child support is tax-free to the recipient but not deductible by the payer. On the other hand, an alimony payer may deduct payments made pursuant to a court order or written agreement while a recipient must report them as income.

In the past, when ex-spouses had more flexibility in negotiating the amount of child support and alimony, many ex-spouses agreed to greater alimony and less child support because of the resulting tax advantage to the payer. Because all states determine the basic child support obligation by formula, however, shifting the amounts of child support and alimony to take advantage of tax deductions is increasingly difficult.

Children, however, do have plenty of tax consequences - first and foremost, they are considered exemptions. Married couples filing a joint return simply list their children's names, ages and Social Security numbers, and then enter the number of exemptions on their tax return. Divorced parents, unmarried parents and married parents who file separately (this includes separated but not yet divorced parents), however, cannot both claim the same children as tax exemptions. The IRS may audit both returns if it discovers this error on one parent's return.

In the absence of a written agreement, the general IRS rule is that the parent who has the children for the longest part of the year is entitled to the exemption. (26 U.S.C. Section 152.) This usually means the mother because she most often gets primary physical custody.

But if the father furnishes over 50% of the child's support, he is entitled to the exemption. He must file with his tax return IRS Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, signed by the mother. (A copy is in the appendix.) If the father claims the exemption without filing this form, he may have to prove that he furnished over 50% of the support for the kids if the IRS questions his return.

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