Archive for the ‘Child Support’ Category

Duration of Child Support Obligation

Friday, April 23rd, 2010

As discussed before on this blog, child support is a payment made from a non-custodial parent to a custodial parent to cover necessary expenses in raising the child. The payment is based on the amount of time each parent spends with the child and the respective incomes of the parents, with some other factors (daycare, insurance, etc.) included. Essentially, the goal is for each parent to pay the same percentage of income for the percentage of time that the other parent has the child.

Most people assume that the obligation to pay ends when the child turns eighteen, and this is often the case. In fact, courts in Tennessee do not have the authority to order child support past that age under most situations. An agreement between the parties (such as is often entered pursuant to a divorce) requiring support after the child or children reach the age of eighteen is enforceable as a contract, however. Most often these provisions are put in place to require support so long as the child or children are enrolled in school or in situations wherein the child or children have a disability or medical problem reasonably requiring parental support past the age of eighteen.

Of course, all that was assuming that child support was paid as ordered promptly. Any child support payments that are not made are neither forgotten nor forgiven. In fact, these unmade payments – arrearages – accumulate interest and can very quickly reach amounts in excess of $10,000 or more for a monthly obligation of $200. Courts in Tennessee have no authority to modify the amount of support owed retroactively, which means that courts in Tennessee have no authority to forgive or reduce arrearage amounts. The amount of child support ordered by the court must be paid eventually.

Child support can be a confusing issue and you should not risk racking up thousands of dollars due. If you are involved in a situation involving child support payments or have been charged with civil contempt for failure to pay child support, you should consult an attorney. For more information on child support and other family law issues, click here.

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Obligation to Pay Child Support

Monday, February 15th, 2010

A child support obligation generally arises as part of a permanent parenting agreement ordered by the court during a divorce or custody action. The amount of child support ordered is calculated based upon the time that each parent spends with the child; the income of each parent; the obligations of each parent to provide insurance, day care services, and the like; and other similar factors. Because of this, there is not much room to adjust the amount of support owed. There is a process through which the amount owed can be changed, but any modification is done based on the same formula, so there has to be a material change in circumstance. Most commonly, a modification is sought when one parent changes or loses his or her job.

If either parent fails to follow the mandates of the parenting plan, either by refusing to pay child support or by refusing to allow the other parent the proscribed visitation, that parent can be charged with contempt of court and will be given a hearing to explain why he or she has not followed the court’s orders. It is important to note that even if the parent has a valid excuse for not paying support, the amount of arrearage (the amount unpaid) is still due and will collect interest until paid. In most courts in Tennessee, the list of valid excuses is relatively small. For example, unemployment is probably not a valid excuse; neither is poor health unless the parent has gone on disability.

The most important thing that a person in contempt can do before the hearing is get back on track and start following the order. Even if a person has managed to get fifty thousand dollars behind on payments, the court would like that person to be making payments. If the court does not recognize a valid reason for violating the order, the court can order the offender incarcerated for up to 180 days. Remember, though, that the court is most interested in these cases in seeing that the order is being followed and will not throw anyone in jail on a whim.

Child support and contempt are complicated issues; if you are charged with contempt or need to modify a permanent parenting agreement you should consult an attorney. For more information on child support and other family law issues, click here.

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Duration of Child Support Obligation

Monday, January 25th, 2010

An obligation to pay child support arises out of a court order and essentially is a pro-rated share of the costs of raising a child paid by the parent who has less time with physical custody of the child. Child support payments are meant to provide food, shelter, medicine, clothes, and other essentials for the child – gifts and niceties are out-of-pocket expenses and the court will not order a parent to provide funds for them in most circumstances. A parent does not have an obligation to provide gifts for his or her children, or even to like them, but a parent does have an obligation to provide support if so ordered by the court.

The order by the court mandating support will generally contain language limiting the obligation to pay. Most commonly, support is required so long as the paying parent does not relinquish his or her parental rights and the child in question is under age eighteen. Most importantly, the obligation exists until the court orders otherwise. The amount of child support owed is based in large part on the ability to pay at the time of the order. If the parent obligated to pay loses his or her job the following week, the obligation to pay remains, even if the loss of employment was for a valid medical reason. If a child for whom support is ordered is later adopted, it is possible that the obligation to pay from that point on does not exist. The obligation to pay up until the moment of adoption certainly exists, and the obligation after may exist, depending on the order.

If you are obligated to pay child support and the situation has changed significantly or you are entitled to receive child support and are not doing so, you should consult an attorney in your area. For more information on child support and other family law issues, click here.

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Rules of Paternity in Tennessee

Monday, January 18th, 2010

Paternity of a child is one of the most common elements in family law cases. Child custody and support often hinge on the paternity of a child – as does marital dissolution, in some unfortunate situations. Legal paternity can be determined several ways. Legal paternity is, of course, not necessarily the same as biological paternity, although the two are often the same.

In Tennessee, a child born into wedlock is assumed under Tenn. Code Ann. § 31-2-105 to be the child of both the wife and the husband. Interestingly, even if the marriage is void the paternity is still legally established, so long as the couple underwent a marriage ceremony. Under that same law, adopted children are given legal status establishing paternity for the adopting father – this is the most common case wherein legal and biological paternity are not congruent.

When a child is born to unmarried parents, there is normally an acknowledgement of paternity by the father. His name will be listed on the birth certificate and by accepting paternity he has assumed the rights and responsibilities of paternity. Under Tenn. Code Ann. § 68-3-302, this acknowledgement is completely voluntary. The birthing institute is required by that law to have an authorized representative explain the consequences, rights, and responsibilities resulting from that acknowledgement.

If paternity is in question, which often occurs when the alleged father has refused to voluntarily acknowledge paternity and the mother has sued for support, the court may order genetic testing. Tenn. Code Ann. § 24-7-112 sets forth the procedure followed when multiple tests are performed with different results.

Many people take paternity for granted, but it is not necessarily a foregone conclusion. If you are involved in a case where paternity may be an important element, you should consult an attorney to ensure that necessary steps are taken. For more information on paternity and other family law issues, click here.

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Child Support Obligations for Non-Married Parents

Thursday, December 10th, 2009

Child support payments are usually mentioned in the same breath as alimony and visitation, as part of a divorce settlement. In practice, even a person who has never been married can be ordered and obligated to pay child support to the other parent of his or her child. At its root, child support is money given to compensate one parent for the expenses necessary to raise a child, not as payment for the work involved. The amount of obligation should be comparable to the amount that the parent would have expended in raising the child had the parents done so together.

In order to ensure that there is no obligation to support a child other than your own, the State of Tennessee requires that parentage of a child be proven before attaching an obligation. A child born in wedlock is presumed to be the natural child of the married parents, although that presumption can be rebutted with evidence to the contrary; a child born out of wedlock has no presumed father. If paternity testing shows that an individual is the father of the child to a 99.9% probability and the father does not raise a valid defense, a court may order child support under Tenn. Code Ann. § 24-7-112(2)(D)(ii). The statutory defenses available to the father are as follows: (i) the putative father had undergone sterilization or was otherwise medically unable to father a child during the probable period of conception; (ii) the putative father had no access to the child’s mother during the probable period of conception; (iii) the putative father has or had an identical twin who had sexual relations with the child’s mother during the time of conception; (iv) the putative father presents evidence that another man had sexual relations with the child’s mother during the probable time of conception. If (iv) is raised, the court shall order a genetic test of that other man; if that test shows at least 95% chance of paternity, it is an effective defense to the presumption.

If you are a single parent to a child or children born out of wedlock, you may be entitled to support or obligated to pay support. Every situation is different, and the information contained in this article should be taken only as advisory. For more information about child support and other family issues, click here.

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The Effects of Divorce on Income Tax

Monday, November 9th, 2009

The splitting of marital assets and the granting of custody each has an effect on taxation of the parties – if astutely planned, ceding assets to the spouse who will be in a lower tax bracket can increase the value of the overall marital estate. In the child custody agreement, the parents must decide which is permitted to claim each child as a dependant for tax purposes.

The modern Internal Revenue Code – the dreaded “TAX LAW” – provides specifically that a transfer of property incident to divorce is not subject to tax consequences. The recipient of the property takes it with a basis equal to the adjusted basis of the transferor. For the uninitiated, this basically means that property appraised at $50,000 is probably less valuable than $50,000 in cash; the property was purchased for some amount, which for our purposes can be considered the basis.* If the purchase price was $20,000, upon sale of the property the recipient will pay taxes on the difference – in this case, the recipient will pay taxes on a gain of $30,000. If the recipient had just taken the $50,000 cash instead, there would be no realized gain and no additional taxation.

Alimony is a special case under the IRC. Essentially, it is treated as income for the party receiving it – as you might expect. In order to avoid double taxation, however, it is deductible from the gross income of the party paying alimony. Since the party receiving alimony is normally going to be in a lower tax bracket, this once again has the benefit of saving a little money at tax time.

The IRC provides that the parent with custody more than 50% of the time can claim the child as a dependant unless the divorce decree specifically provides otherwise or if the custodian parent releases the dependency exemption to the other parent in a written decree. Child support, unlike alimony, is not includible in the recipient’s income and deductible in the transferor’s. The idea behind child support is not a replacement of expected income that was lost in the split, but is the amount of income that would have been spent on the child. Since income is taxed before you buy things for your kids, it is reasonable to require the paying parent to include the amount of child support in his or her gross taxable income.
This is, of course, a very broad and simplified explanation of the tax consequences of alimony and child custody/support and should not be relied upon to make major decisions. Speak to an attorney or tax professional if you are concerned with the effects of your divorce on your income taxes. More information about divorce and other family law issues can be found here.

* This is a very simplified explanation. The basis is not always just the purchase price.

Posted in Alimony, Child Custody, Child Support, Divorce, Income Tax | No Comments »

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