Chapter 5: Establishing & Modifying Orders
Within 90 calendar days of locating the alleged father or the noncustodial parent, regardless of whether paternity has been established, the child support agency must establish a support order or complete service of process to establish an order, and if necessary, paternity. If the child support agency is unable to serve the noncustodial parent, they must document unsuccessful attempts. The child support order sets the amount of money that a parent should provide to support his or her child or children and when that money should be paid. It may also include the responsibility to provide medical support for the child or children.
Based on a state’s laws and procedures, establishment of child support can be done voluntarily or through a court process. The easiest and quickest way to get a support order is through a voluntary agreement. If the parent paying support agrees to the amount owed under the guidelines, the state asks him or her to sign an agreement form. When the agreement is approved by a child support judge and filed with the clerk of the court, it becomes an order and is legally binding. However, in some states, establishing child support may require a court order.
Support orders may also be established by bringing a legal action before a judge. The state agency can go to court with the help of the state IV-D attorney. The state presents information about the parent’s finances. Each parent may also be required to testify about his or her ability to support the child. If the parent paying support is not living in the state, the state may ask the other involved state or country where the parent paying support lives to help attain an order. If there is already a support order issued by the ordering state or another state, the state agency may pursue support based on that order after the state registers the order. If there is no order, the state agency can ask the other state or country to issue a support order based on its own guidelines. Collecting support from parents who live out-of-state is more complicated and may take more time.
All support orders issued or modified by the IV-D agency must include a provision requiring the parent paying support to keep the IV-D agency informed of the name and address of his or her current employer, whether the parent paying support has access to health insurance coverage at reasonable cost, and if so, the health insurance policy information.
Incarcerated parents who owe support also have the ability to have their child support orders reviewed and potentially modified while they are incarcerated.
States are required to establish one set of guidelines (by law or judicial or administrative action) for setting and modifying child support award amounts. Child support guidelines help courts set award amounts for child support orders and must be based on financial information from one or both parents. They must also be based on specific descriptive and numeric criteria, result in a computation of the support obligation and address how the parents provide for the children’s health care needs. Financial information includes wages and other income, as well as some expenses such as child care or other extraordinary medical expenses. Most child support orders require payment until the state’s age of majority with some exceptions for disabled children, educational costs, etc.
There is no required or even recommended method or model for determining child support obligations. Each state must choose its method or model. As a result, three main models have emerged─Percentage of Income, Income Shares, and the Melson formula. A hybrid approach combines the percentage of income and income shares models, however, it is not typically recognized as its own model because the few jurisdictions using it do not use it in the same way.
For more information, visit Guideline Models by State.
Percentage of Income Model
The Percentage of Income model determines child support through application of a percentage to the obligor’s gross (before tax) or net (after tax) income. Each state determines the percentage amount. Not all states apply a constant percentage some use a varying percentage. This model does not consider the parent receiving support’s income, but it does assume that each parent will spend the designated proportion of income on the child, with the parent receiving support’s share being spent directly through his or her care of the child. Under this model, the basic child support order is determined by applying a percentage to the paying parent's income. The state makes adjustments for any add-ons or deductions to reach a final order amount.
There are two main variations on the Percentage of Income model.
- Under the flat percentage model, the percentage of income devoted to child support remains constant at all income levels. Economic analyses show that the proportion of income parents devote to their children in intact families is relatively constant across income levels, up to a certain limit.
- Under the varying percentage model, the percentage of income devoted to child support varies according to the level of income, and the support award as a percentage of income decreases as income increases.
Under either variation, the percentage to be applied is determined by the number of children, and in some states, by the ages of the children.
Proponents of this model believe that both parents are assumed to contribute to the child’s upbringing in the same proportion—with the parent paying support making the contribution directly in the manner he or she would have made it had the parties not divorced. This model may also be simpler and less prone to error.
Opponents of this model believe it is inherently unfair that the receiving parent's income does not affect the presumptive amount. Under the percentage of income model, only a large disparity between the parents' incomes would serve as a factor for deviation. Under this model, states generally do not take into account the costs for child care, extraordinary medical expenses, shared or split custody, subsequent families, or very high or very low income of the parent receiving support.
Income Shares Model
Under the Income Shares model, the state combines the parents’ incomes and matches the total against estimates of how much an intact family with the same number of children would spend on child-rearing. The state prorates each parent’s income according to his or her share of the total income. The state adds prorated shares of child care and extraordinary medical expenses to each parent’s obligation. If one parent has custody, the state presumes that the amount calculated for that parent is spent directly on the child. For the parent paying support, the calculated amount becomes the presumptive level of child support.
Proponents of this model say it embodies the underlying economic assumption that, as income increases, the proportion of income spent on raising a child decreases. It takes into account that both parents are sharing in the support of the child. It can also more easily consider adjustments, and then allocate them between the parents. Because states build these contingencies into the guidelines, there is less reason for deviation from the presumptive award level. Fewer deviations result in greater perceptions of fairness, consistency, and predictability.
Opponents of this model cite two problems. One study suggests the underlying economic data is faulty and fails to reflect the true child-related expenditures in upper-income families. This model is also more complex than the percentage of income model, and it sacrifices simplicity for flexibility.
Delaware Family Court Judge Elwood F. Melson, Jr. developed the Melson formula. The state of Delaware eventually adopted the formula as a Family Court Rule in 1984 and fully adopted it in case law in 1989. The Melson model is a more complicated version of the income shares model and reflects several public policy judgments. First, it recognizes that support of others is impossible until one’s own basic support needs have been met. Second, it reflects the policy that further enhancement of the parents’ own economic status should not be allowed until the parents jointly meet the basic poverty level needs of their children. Finally, it incorporates a “standard of living adjustment,” reflecting the policy that parents should share their additional incomes with their children, improving the children’s standard of living as their own improves.
The Melson formula arrives at a child support amount by first providing for each parent’s minimal self-support needs. The state applies the remaining income to the primary support needs of the children in proportion to the parents’ relative incomes. Finally, the state calculates a standard─of─living adjustment by adding a percentage of any income that remains after the children’s primary support needs have been met to the total support amount.
Proponents of this model argue that it is the fairest model. It is the most intrinsically consistent, taking into consideration not only special custody situations and health care needs, but also each parent’s needs. One study found that this model produces less extreme differences in living standards where one parent has a very low and the other a very high income. Because the Melson formula takes into consideration commonly occurring expenses, it is consistent and predictable.
The one reported fault of the Melson formula model is its perceived complexity. Though it seems to be the most complicated of all the models, it is reported that once a practitioner learns to apply the model, it becomes simple to administer.
There is no evidence that any one model is superior to any other model in terms of achieving the goals of increased compliance, consistency and predictability, and ease of administration.
Click here for information on what models are used by states.
States determine income for setting child support based on either gross (before tax) or net (after tax) income.
- Gross income includes all income, with no deductions.
- Net income is gross income, less deductions for federal, state, and local taxes, and other mandatory deductions such as mandatory contributions to retirement plans and mandatory union dues.
States also permit judges to “impute income,” which is a method to assign an income to a parent for the purposes of determining the support order. Courts are permitted to “impute” income to either parent under the following circumstances:
- The court does not believe the parent’s testimony regarding reported income.
- The court believes the evidence of the parent’s income and the parent’s actual income do not meet his or her demonstrated earnings capacity (based on previous work history; physical and mental condition; educational background; efforts to find and retain employment; and/or current employment market).
- The court believes a decrease in income is voluntary.
- The parent paying support does not appear in court as required under law.
- In these cases, the court imputes an income from any available evidence to set an initial child support order. At a minimum, income is often imputed to equal the amount earned from a full-time job earning minimum wage.
In order to impute income to a parent who has demonstrated an inability to pay the specified amount, courts must determine that the party is voluntarily unemployed or underemployed. States allow for exceptions to the general rule regarding voluntary income decreases if the party can demonstrate that the decrease was based on a “good faith reason” (e.g., taking a lower-paying job that has greater long-term job security and potential for future earnings).
States are required to enact “procedures requiring a default order [to] be issued in cases where the parent owing support fails to appear or does not provide sufficient financial information.” These orders are based on the information provided by the parent owed support and/or information that the child support agency was able to obtain. Parents owing support may respond to the default order after it is set. The practice of default orders varies greatly among states.
Evidence shows that default orders and orders set using imputed income are less likely to be paid because they are often not based on the obligor’s ability to pay; and in the case of default orders, they are often subject to future challenges (usually on the basis of due process).
Number of Children
States calculate child support differently when a parent has children by more than one person. There are two ways to approach the guidelines:
- Use the guidelines for the children included in the action before the court. For example, the parent paying support has one child with the parent receiving support and one child by another person. The guidelines would only consider the child by the parent receiving support and not count the other child in any calculation; or
- Use the guidelines for all the children of the parent who is obligated to support them and then prorate the total support for each child included in the action before the court. For example, the court would calculate what both children need and issue the order based on the prorated amount for each child included in the action before the court.
Medical support is also a component of child supports. There are three categories of medical expenses that are incorporated into a child support order:
- Health care coverage premiums, including employer-sponsored insurance, other private coverage, coverage through a state marketplace or exchange, Medicaid, and Children’s Health Insurance Program (CHIP).
- Payment for the uninsured portion of regular medical expenses, such as co-payments, deductibles, and uncovered expenses.
- Extraordinary medical expenses, such as dental or vision services or other out-of-pocket costs not covered by insurance.
Medical support must be included in new and modified orders for child support when employer-provided or other group health insurance is available to the parent paying support at a “reasonable” cost. Parents may also choose to have the parent receiving support provide health care coverage, with the parent paying support providing payment for premiums and related expenses. If medical/dental insurance is not available at a “reasonable” cost, the court may order “cash medical support.” This money can be used to offset medical expenses or premiums for insurance provided by the parent receiving support. Low-income families may find it more difficult to meet both cash medical and child support payment obligations, sometimes resulting in reduced payments overall.
Medical support is also included in all voluntary support agreements. The child support agency is required to provide the parent receiving support with information regarding the health insurance coverage obtained by the parent paying support for the child. Children served by the child support system may also have access to a stepparent’s insurance, Medicaid, CHIP, or through state health insurance marketplaces or exchanges.
Federal regulations require that guidelines calculations provide for health care needs through “health insurance or other means;” however, due to the great variation in insurance cost it is not included within the basic guideline amount. Guidelines treat the cost of health insurance in one of two ways:
- Add the actual cost of health insurance to the basic support amount and then prorate the cost between the parents based on their proportion of income, or
- Order one parent to pay for health insurance and then deduct that cost from the paying parent’s income.
Enforcing medical support can result in more children being covered by private health insurance through the parent’s insurance plan. Medicaid or state CHIP benefits can be provided to children whose parents do not have access to health insurance at a reasonable cost. Federal regulations require state child support agencies to share basic medical support information with the state Medicaid agency. For children receiving Medicaid, the state Medicaid agency is permitted to garnish wages, salary, or other employment income from the parent paying support in order reimburse the state agency for costs of medical services provided under the Medicaid program.
In 2010, the Office of Child Support Enforcement issued policy guidance to address changes in federal health policy. With the passage of the Patient Protection and Affordable Care Act, the federal Office of Child Support Enforcement will hold states harmless from penalties for failure to comply with medical support final rule state plan requirements. The suspension was issued so that states do not make new investments in medical support enforcement to comply with regulatory requirements that could change under health reform. Additionally, the Children’s Health Insurance Program Reauthorization Act of 2009 reauthorized CHIP and provided additional funding and new policy resources to promote children’s enrollment in Medicaid and CHIP coverage. It also maintained coverage for millions of children while providing funding for additional coverage.
- Update medical support policies to enhance collaboration with Medicaid and CHIP to improve enrollment of eligible children, including the option to define medical support to include private health insurance, Medicaid, CHIP, other state coverage plans and cash medical support; and/or
- Update medical support guidelines, including modifying the definition of reasonable cost as reference in Section 452(f); and/or
- Continue current and planned medical support policies and practices.
Deviations, Special Circumstances and Extraordinary Expenses
Guideline deviations are necessary when order amounts are deemed “unjust or inappropriate.” These situations arise when the circumstances of the case are at odds with the economic assumptions that form the basis of the guidelines. The most common reasons for deviations are to consider the circumstances of low-income obligors, children from previous or subsequent relationships, and if the parties have come to an alternate agreement. In most cases, decision-makers adhere to the amount established by the child support guidelines.
State guidelines also permit certain add-ons and deductions to the basic child support award. Mandatory add-ons include health care needs and child care expenses. Mandatory considerations for adjustments in some states include shared custody, split custody, and extraordinary visitation; prior and subsequent families; and adjustments for older children.
Deviations, sometimes referred to as special circumstances, are an increase or decrease in the presumptive amount of child support. Deviations may be based upon high income, low income, or a change in parenting time. There are more than 40 deviation factors used by states.
Extraordinary expenses mean the expenses and costs, such as educational and medical expenses, that are in excess of the amount established by guidelines. States separate these factors differently. Some states have just a few or many factors, while others have an exclusive list or a catchall. No matter how the state decides to deviate from the guidelines, federal law requires that the deviation criteria “must take into consideration the best interests of the child.”
States’ treatments of cases where the income of the parent(s) exceeds the highest amount listed in the guidelines vary. There are three main approaches:
- Include a specific formula for high-income cases in the guidelines themselves.
- Use the highest amount provided for in the guideline, with the ability to deviate from this amount based upon the actual needs of the child or the standard of living enjoyed by the family before the action for support was taken.
- Disregard the guidelines and allow the decision-makers to use their discretion to set a support amount based upon the needs of the child and ability of the parents to provide support. Some courts have allowed excess amounts of child support be placed in a trust for future expenses.
States also take three approaches to setting child support amounts for very low-income parents:
- Setting a minimum presumptive amount
- Setting a minimum mandatory amount
- Leaving discretion to the court to determine ability to pay.
Setting a minimum presumptive amount establishes a minimum award amount, often $50 per month per child that can be rebutted downward. A mandatory minimum award cannot be deviated downward and a specific dollar amount must be established. Other states allow the decision-maker to determine the amount of support.
Low-income cases present unique challenges especially when support orders represent a high percentage of the obligor’s earnings. Guidelines models use different approaches in these cases to balance the needs of the parent and the child. The Melson formula is based on the recognition that parents need to be able to meet their basic needs first and establishes a self-support reserve based on the U.S. poverty guidelines. Other child support models can address the self-support reserve question by using it as a reason to deviate from the guidelines. Some states have an exemption for parents who are mentally or medically disabled with no potential to earn income, incarcerated with no chance of parole, or otherwise “involuntarily unable to produce income.”
For more information, visit States' Treatment of High and Low-Income Parents in Making Child Support Determinations.
Child support guidelines that expressly address medical expenses vary in how they distinguish ordinary medical expenses from extraordinary medical expenses. Some states expressly provide that the basic support amount assume a certain amount of unreimbursed medical costs, such as copayments or other expenses not covered by health insurance, Medicaid, or Medicare. Many states set a threshold amount for what constitutes an add-on medical expense. Expenses less than the threshold for extraordinary medical expenses are considered ordinary expenses that are subsumed within the basic support amount. Other states assume that the basic support amount can be adjusted by adding the cost of any non-covered medical, dental, and prescriptive medical expense to the support amount.
Extraordinary medical expenses are those expenses that extend beyond the ordinary expectation of medical need in a family, as contemplated by most state guidelines formulas.
Uninsured medical expenses encompass a range of items that include co-payments, medicine costs, uncovered procedures and conditions, as well as cash payments in lieu of health insurance. Some states provide a specific definition of medical expenses including expenses for treatment provided by medical doctors, dentists, treatment for chronic conditions and asthma, counseling, psychiatric treatment for mental disorders, and physical therapy. Other states provide that services provided by a broader range of persons fall within the medical expense category, such as chiropractors, oral surgeons, licensed practical nurses, optometrists, clinical social workers, and many other professionals.
Child care expenses are treated as a mandatory add-on to the support amount or a deviation factor. Child support guidelines do not include child care expenses within the basic support amount because the amount paid for child care is easily determined, tends to be regular, and is simple to add it to the basic support amount. Guidelines models tend to take three approaches:
- Deduct the amount of child care expense from the gross (before tax) income of the parent incurring the expense.
- Add the cost of child care to the basic support amount and either divide the cost equally among parents, proportionate to their income or assign it to one parent.
- Use it as a deviation factor, which happens most often when the support amount is based on the percentage of income model. Additionally, most states subtract the value of the federal income tax credit for child care from actual costs to arrive at a figure for net child care expenses.
Custody and Visitation
State guidelines define custody or shared custody differently. Some are based on the number of overnight visits, others use the percentage of time with the noncustodial parent, and others use a percentage of the year. Guidelines include provisions to account for shared custody arrangements but vary in how the adjustments are made. When shared custody has been determined, the amount of support is calculated one of three ways:
Based on an equal percentage of time the child spends with each parent
Based on a sliding scale to reflect the actual amount of time spent with each parent (with the sliding scale adjustments made after meeting a certain threshold, usually if the noncustodial parent is spending more than 20% of time with the child)
Based on a presumptive parenting time arrangement and then deviating from that assumption.
Visitation and child support are interrelated issues; however, a noncustodial parent generally cannot use lack of visitation to justify not paying child support nor can a custodial parent deny visitation because the noncustodial parent did not pay.
Complex Families/Prior and Subsequent Children
Complex families are those where parents have children with multiple partners (for example, parent(s) who have children with more than one spouse, children who share their mother and/or father with half-siblings, step-siblings, and/or step-parents). These family formations raise issues for child support in terms of balancing the needs of all children involved. States tend to give priority to preexisting orders over orders set for later born-children. Some states allow payment of the first order to be deducted in calculating income for subsequent orders; others allow a deviation from the support amount due to subsequent children and some will allow a credit to be applied to the order amount. There is no uniform approach to addressing the issue of subsequent children.
Termination of Support/Emancipation
Child support generally ends when the child reaches the age of majority, which in most states is the age of 18 (or 19 when the child is still in high school). Some states extend child support to 21 or continue the order while a child is in college. Others specifically extend support for children with disabilities.
For more information, visit Termination of Child Support.
Courts can award child support orders that pre-date the date of the proceeding in which the order is issued. These are called retroactive orders. States have several approaches to retroactive support orders. They can backdate the child support order to the date of the child’s birth, which creates an arrearage as soon as the order is issued. They could backdate child support only to the date on which the petition for a child support order was filed with the court. Alternatively, they can backdate for a certain number of years (e.g., three years) or to a capped amount (e.g., $2,000). Some states backdate the order to when the parent receiving support started receiving assistance. In some states, an order setting a retroactive amount can also include other expenses such as genetic test costs and birthing costs.
States that assess retroactive support on a routine basis tend to have higher arrears per obligor than states that do not. Research has shown that the “longer the time for which parents paying support are charged retroactive support, the less likely they are to make any payment on their child support order once established."
Arrearages are past due or unpaid support owed by a parent. Parents tend to accrue large arrearages for one of three reasons:
- Retroactive child support awards
- Not knowing a support order exists
- Willful failure to pay.
Under federal law, all orders serviced by the state agency are subject to automatic income withholding when a delinquency of at least one month occurs. Some states charge interest on delinquent payments. Some states have statutes of limitations on the length of time during which a child support debt is collectable.
Most obligors owe small amounts of child support debt. In fact, a relatively small number of obligors owe most of the arrearages. Obligors who owe a large amount of arrears are more likely than other obligors to meet at least one of the following conditions:
- Have no or low reported income.
- Have not paid support in the last year.
- Have no address or an out-of-state address.
- Have multiple current support orders.
Obligors with no or low reported income hold most of the arrears. Some of these debtors with no reported income have other sources of income, including bank accounts, social security benefits, private contractor salaries, new employment, and federal tax refunds. These sources are not easily collected by child support agencies.
Many other factors also contribute to high arrears amounts. Studies show states that assess interest on a routine basis have considerably higher arrears per obligor than states that do not. Lack of compliance with current support orders also contributes to increases in arrears. States that appear to impute income when establishing orders in a large percentage of their cases tend to have higher arrears per obligor than states that do not.
States vary widely in their approaches to collecting arrearages. Some states set exact deadlines for collection and have statute of limitations on how long they can collect arrearages. These are often based on the age of the child or a certain number of years after emancipation.
Some states facilitate opportunities for obligors to have their child support debts compromised or forgiven. They do this to facilitate regular payment of current support obligations and to make efficient use of enforcement efforts. States have the authority under certain circumstances to compromise or forgive penalties or interest charges on arrearages and may choose to also forgive or compromise the principal unpaid child support obligation.
Under federal law, state courts may not retroactively modify child support debt, except back to the date of service on the other party. A child support payment becomes a judgment by operation of law when it becomes due and unpaid, and is entitled to full faith and credit to be enforced as any other judgment of the state. This is known as the Bradley Amendment prohibition. The provision allows states to settle certain arrearages in the same way it would settle other debt owed to the state if state law allows.
States can compromise child support arrearages by specific agreement of the parties or by using the same state legal grounds as exist for other judgments. If a TANF, former TANF, Medicaid recipient, or in some states, a recipient of state services, has assigned the child support collections at issue to the state, the state must also agree to the compromise or settlement.
Some states are also experimenting with forgiveness or amnesty programs. Typically, these are time-limited programs during which delinquent obligors can meet with child support officials to have their arrearages forgiven, adjusted, or to pay the balance according to an agreed-upon payment plan. Amnesty programs vary by state and tend to fall into one of two categories: those that compromise part of the arrearages owed to the state and those that halt or postpone an enforcement action. For example, states may provide legal and collection services that enable parents paying support to establish settlement agreements to pay their arrears, suspend their arrest warrants, restore their licenses, restore their passports and/or stop income tax levies for the nonpayment of child support.
States may benefit from having uniform written policies that set forth the circumstances under which the state will compromise arrearages.
For more information visit, Interest on Child Support Arrears.
Modifications (Review and Adjustment)
After child support is ordered by the court, the order can be changed (or modified) if any of the following situations occur:
- The financial situation of one or both parents change
- The support order is no longer adequate to meet the needs of the child
- There is no provision for medical support or the circumstances of either parent or the child have changed substantially.
Either parent may request that the state review the support order. If the state determines the order should be changed, it will prepare the legal papers and take the case to court. This may result in the court-ordered amount being increased or decreased.
States are required by federal law to review at least once every three years (36 months) every child support order if there is an IV-A assignment, or upon the request of either parent, and make modifications if necessary. States must notify parties in IV-D cases of their right to request a review. Modifications are permitted within the three-year period based on a substantial change in circumstances, at the request of either parent or the agency. Either party is permitted to contest the modification within 30 days after the date of the notice of adjustment.
The review is to be an objective evaluation of information necessary for application of the state’s guidelines. The state may use a “reasonable quantitative standard,” or threshold, as a basis for determining whether the variance between the current order amount and the amount resulting from the application of the guidelines, based on current information, is adequate grounds for petitioning for the modification. Each state threshold is defined as a percentage and/or dollar change in the current child support obligation. Generally, modifications occur when the obligor experiences a substantial and enduring ability to pay.
Federal law and regulations allow states to apply a cost─of─living adjustment, as determined by the state, or use automated methods. Automated methods include using income information from automated sources to identify orders eligible for review, conduct the review and apply the appropriate adjustment.
Modifying orders to amounts obligors can reasonably pay increases compliance with paying support. At least 20 states have modification assistance or review and adjustment programs. These programs are designed to simplify the process and to assist parents with requesting a change to their orders. States are taking advantage of technology and automation to target specific populations that might need modifications, such as obligors who have lost a job or are routinely missing payments.
Turner v. Rogers
In 2011, the United States Supreme Court decided the case of Turner v. Rogers. The court held that the state did not necessarily need to provide counsel to an unrepresented parent facing the possibility of incarceration in a civil contempt proceeding for failure to pay child support, and the state had alternative procedural safeguards that assured a fundamentally fair determination whether the supporting parent was able to comply with the court order. In the case, neither the state nor the parent receiving support was represented by legal counsel. The Turner court indicated that adequate substitute procedural safeguards might include, but were not limited to:
- Providing notice to the parent paying support that “ability to pay” is a critical issue in the contempt proceeding.
- Providing a form (or the equivalent) that can be used to elicit relevant financial information.
- Providing an opportunity at the contempt hearing for the parent paying support to respond to statements and questions about his/her financial status (e.g., those triggered by his/her responses on the form declaring financial assets).
- Requiring an express finding by the court that the parent has the ability to pay based upon the individual facts of the case.
Although the case focused on due process considerations and did not prohibit contempt proceedings or incarceration in cases where obligors do not pay, it did call attention to the actions of child support agencies; namely, that the agency should carefully screen and individually review cases to determine the “actual and present ability to comply.” Where the obligor is not able to pay, a modification, or referral to a workforce or fatherhood program may be necessary.