During a divorce or separation proceeding the issues of custody, parenting time and child support are determined, if not by an agreement approved by the court, than after a hearing. Child support is the duty of both parents.
In practice, child support is generally paid by the parent who does not have physical custody (non-custodial) to the parent who was awarded physical custody. This occurs because the noncustodial parent is typically awarded parenting time and given a credit against his or her child support obligation.
In addition, there is a presumption against “negative” child support, meaning the custodial parent pays the non-custodial parent.
These complex legal considerations are frequently encountered and addressed by Ciyou & Dixon, P.C. advocates.
In determining either parent’s child support the court considers the goal of child support: to provide the children with the same financial resources and standard of living they would have enjoyed had the marriage continued. As such, Indiana’s child support guidelines take into consideration the financial resources of both parents, the number of children, the standard of living the child(ren) have enjoyed and would enjoy if the marriage had not been dissolved, and any physical, mental, or special educational needs of the child(ren).1
A parent’s actual child support obligation is computed using the Indiana Child Support Guidelines and the mathematical formula it contains. The court will consider the paying parent’s income and living expenses so that the amount of support ordered is reasonable so as to also not deny the paying parent the means to self-support.2
Initial child support obligations are often determined at the time of the dissolution of the marriage, or determination of paternity, however due to significant changes in circumstances which make the current support order unreasonable parents may find it necessary to ask the court to modify the child support obligation.
Modifications may occur within one year if amount of supported to be paid is unreasonable, which typically occurs because the paying parent has his or her income drastically reduced, or has lost his or her income altogether. Sometimes situations arise where the parent who is ordered to pay child support has reduced or eliminated his or her income.
After the passage of one year, the trial court may modify child support if there is a twenty percent change in the amount to be paid.
In support determinations, a court may find that a parent is voluntarily unemployed or underemployed. This sometimes occurs when a party remarries and does not have to work due to the subsequent spouse’s higher income. When a court determines that the paying parent has a potential to earn income, but volunteers not to do so, the court may impute income. In other words, the court will attribute income to that parent where no income is actually earned, but the ability and potential to earn exists, typically commensurate with earning ability and the economic circumstances in play at the time of the determination.
In calculating the imputed income, the court will consider factors such as employment potential, probable earnings based on work/earning history, special occupational or educational qualifications, job opportunities, and earnings levels in the community. Where none of these factors exist, a court may impute income of at least the federal minimum wage level.
The purpose of imputing income is to discourage a parent from choosing not to work, or take a low paying job to avoid significant child support payments. The court has wide discretion in imputing income, with the goal of assuring that the paying spouse does not evade his or her child support obligations.
Imputing income to determine child support obligations is often very fact specific for each case. The goal to keep in mind is the benefit and welfare of the child(ren). Imputing income is not a means of punishment to the obligor spouse for being out of work, but rather the court’s attempt to create a fair financial obligation situation for the parents relative to the goal of child support–which is for the child and not an obligation that should be evaded by not working or working below one’s skill set.
Child support can be a complex matter to compute at times. This is especially so with an unemployed or underemployed parent. As a domestic litigant, it is crucial you relay such suspicions to your attorney in order to put on market and job earning evidence for imputation of income. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana. This blog post was written by Bryan L. Ciyou, esq. and Lori Schmeltzer, law clerk.