Chapter 1: Child Support Basics
Child support payments represent on average, 50% of income for poor families who receive it and lifted nearly 700,000 people above poverty in 2019.
What is Child Support?
Child support is the financial support paid by parents to support a child or children of whom they do not have full custody. Child support can be entered into voluntarily, by court order or by an administrative agency (the process depends on the state or tribe). The noncustodial parent or obligor—the parent who does not have primary care, custody, or control of the child or children—often has an obligation to the custodial parent or obligee—the parent who has primary care, custody and control of the child or children.
Why Child Support?
Child support serves several important goals.
- It reduces poverty and financial insecurity among children and parents receiving support.
- It reduces public spending on welfare by preventing single-parent families from entering the welfare system and helping them leave the system more quickly.
- Child support collection also positively affects family relationships and increases the involvement of noncustodial parents in children’s lives.
- Receipt of child support has a positive effect on academic achievement and improves young children’s cognitive development.
Who Gets Child Support?
An obligor pays child support to an obligee for the care and support of children of a relationship that has been terminated or in cases of out-of-wedlock birth.
In some cases where someone other than the parent has custody, for example a child under state custody in foster care or living with grandparents, the state or grandparent become the obligee and receives child support payments on behalf of the child.
There is limited data on the reliability of child support payments, however, according to a U.S. Census Bureau report, child support payments are inconsistent. Of the 5.4 million parents due support in 2017, 45.9% received full payment, nearly 24% received partial payment while another 30.2% received no payment at all during the year. This is an improvement from previous years with more parents receiving full or partial payments and a nearly 5% decrease in the number of parents receiving no payment at all. By changing the focus of the child support enforcement system to include family-centered options, child support payment reliability is expected to increase.
Who Pays Child Support?
A 2018 U.S. Census Bureau report found that 5.8 million parents paid $35.3 billion in child support payments for children younger than 21.
According to the analysis:
- Overall child support payments averaged $6,069 annually, or $506 per month.
- About 90.6% of payers were fathers and 9.4% were female.
- Fathers paid an average of $6,312 annually, or 10.7% of their average annual family income.
- Mothers paid an average of $3,723 annually, or 7.4% of their average annual family income.
The numbers of children that each provider supported varied.
- About 55% of providers paid support for one child.
- Thirty percent made payments to support two children.
- Just 14% supported three or more children.
What is the State's Role?
State investment in child support reduces other public spending. Child support collections lower the costs associated with public assistance, food stamps and Medicaid. This is especially true in states where child support collection rates are highest. Receiving regular, reasonable child support awards can make the difference for families between reliance on the state and self-sufficiency.
Child support also affects families and marriage. Payment of child support can foster better relationships between children and parents and act as a disincentive for divorce.
Payment of child support also leads to increased involvement and influence of fathers paying support. Fathers who pay child support are more likely to visit their child, to see their child more frequently, and to affect how their child is raised, regardless of how much support they pay.
States play an important role in collecting child support. All states and territories operate a child support enforcement program, usually in the human services or resources department, department of revenue, or the attorneys general office. These entities frequently work with the help of prosecuting attorneys, other law enforcement agencies, and the juvenile or family and domestic relations courts. Native American tribes can also operate child support programs with federal funding.
While the administration and structure of child support programs vary across states, at a minimum, services offered in all child support programs include:
- Locating parents obligated to pay support.
- Establishing paternity.
- Establishing and modifying support orders (including medical support).
- Collecting support payments.
- Enforcing child support orders.
States have used various methods to enforce collection of child support and ensure reliable and consistent payments. Policies such as automatic income withholding and requiring employers to report all new hires to child support agencies have been successful. States also have other more debt-driven enforcement tools, including suspending drivers and professional licenses and booting cars, which focus more on single lump-sum payments.
Legislators and other policymakers are re-examining and often broadening the goals of child support enforcement programs. States and communities are experimenting with a variety of programs to assist low-income parents in meeting their child support obligations. States are developing policies to:
- Prevent the need for child support enforcement.
- Engage fathers from the birth of their child.
- Promote family economic stability.
- Help build healthy family relationships.
- Ensure that families have meaningful health care coverage.
- Prevent and reduce family violence.
Chapter 2: State Administration
All states and territories operate a child support enforcement program, usually in the human services or resources department, department of revenue, or the attorneys general office. These entities frequently work with the help of prosecuting attorneys, other law enforcement agencies, and the juvenile or family and domestic relations courts. Native American tribes can also operate culturally appropriate child support programs with federal funding.
Federal Role in Child Support Enforcement
The federal Department of Health and Human Services (HHS) oversees child support enforcement programs administered in each state. The federal child support program involves 54 states and territories and 60 tribes. Each entity has its own unique laws and procedures. The federal Office of Child Support Enforcement assists states and tribes in performing collection and enforcement services. All these entities work closely with the private sector including financial institutions, employers and insurance companies.
The federal program is responsible for recommending and implementing policies for state and tribal child support enforcement programs, developing procedures to review state and tribal plans, conducting audits of child support programs, providing training and technical assistance to states and tribes, and assisting states and tribes in establishing reporting procedures and records.
Each state child support enforcement agency operates under a state plan approved by the federal Office of Child Support Enforcement. Each state plan is based on the program standards and policy set by the federal government. It sets the structure for state child support enforcement agencies and their local counterparts to work with families to obtain support. States are required to track financial and statistical data on their programs.
States and the federal government share the costs of these programs; however, the federal government provides the majority of child support enforcement funding. Congress reimburses states for two-thirds of their administrative costs. States receive a federal match on their child support enforcement expenditures. States can also receive additional federal incentive payments based on how well they meet performance measures related to:
- Paternity establishment.
- Number of cases with orders.
- Collection of current support and arrears.
- Cost effectiveness.
States must reinvest the federal match and incentive payments into the child support programs.
State Program Structure
Child support program structures vary widely from state to state. Some states have centralized programs with local service offices. Other states have county-operated programs, in which the counties are nearly independent of each other in their procedures, forms and requirements.
At a minimum, services offered in all child support programs include:
- Locating parents obligated to pay support.
- Establishing paternity.
- Establishing and modifying support orders (including medical support).
- Collecting support payments and enforcing child support orders.
- Referring parents who pay support to employment services.
Some child support payments are handled through courts or private attorneys. These arrangements are separate from state child support programs, although some state programs process all child support payments in the state. Child support programs typically do not provide services related to child custody, visitation, or property distribution. Some do collect alimony when it is included as part of the child support order and others may facilitate limited access and visitation programs. Each state receives money from the federal Office of Child Support Enforcement to develop programs to ensure that children have access to both of their parents.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (more commonly known as the 1996 federal welfare reform act) required states to expand the authority of their state agencies to do many of the child support establishment and enforcement tasks previously reserved to the courts. Now, in many states, administrative processes are used more than judicial for child support functions. For example, some state agencies have broad powers to establish child support orders, use enforcement tools such as liens and license suspensions and review child support orders every few years.
For a list of state child support oversight entities, visit NCSL's Table of State Child Support Oversight Entities. For a list of state processes, visit our Table of Child Support Process.
Who Gets Child Support Services from the State?
Any parent or person with custody of a child who needs help to establish a child support or medical support order or to collect support payments can apply for services. Individuals receiving public assistance from the state are required to participate in the state child support program. A father can apply for services to establish paternity and can request to make payments through the child support enforcement program─this ensures a record of payments made. Parents paying support can also request that their child support order be modified, if, for example, they lose their job.
Types of Child Support Cases
State Title IV-D Cases: Title IV-D cases are cases in which a state provides child support services through the state or tribal IV-D program to a parent receiving support. The program is funded under Title IV-D of the Social Security Act. There are three subtypes of state IV-D cases:
- Public or Current Assistance Cases: Parents who receive public assistance under the state’s Temporary Assistance for Needy Families (TANF) program are required to assign their rights to child support payments to the state. The state automatically refers these cases to the federal Office of Child Support Enforcement in order to attempt to collect child support directly from the parent paying support.
- Non-Public Assistance Cases: Non- public assistance cases are those in which the family is not currently receiving cash assistance or Medicaid but the state child support agency is providing collection services
Foster Care and Adoption Assistance (IV-E Cases): Cases where the state currently provides benefits or services for foster care maintenance to a child that meets IV-E eligibility guidelines.In these cases, someone other than a parent is caring for a child or children—this could include a relative caregiver or the foster care system. These cases are also automatically referred to the child support agency to attempt to recoup costs from the parent(s) paying support.
Private or Non-IV-D Cases: Non IV-D cases are cases where child support is established and maintained privately, most often following a divorce where support orders are determined as part of the divorce proceedings. Any family is eligible for support enforcement services from the state. Some private cases become state IV-D cases when one of the parties applies for services from the state child support agency to help collect outstanding, unpaid child support.
How Much Do Child Support Enforcement Programs Charge for Services?
TANF, Medicaid, foster care and other cash assistance recipients do not have to pay states for child support services. For other services, states are permitted under federal law to charge parents seeking services up to a $25 fee and many states do. Agencies may also charge fees for legal work performed by agency attorneys for non-public assistance clients.
The federal Deficit Reduction Act of 2005 requires each state's office of child support enforcement to collect a $35 annual fee from families who have never received Temporary Assistance for Needy Families (TANF) and have received at least $550 in child support during the current fiscal year. States have several options available to collect the mandatory fee. They may pay the fee themselves rather than pass it on to individual clients. They can charge either parent. States can also withhold the fee from child support being paid to the parent receiving support.
What Are the Special Requirements for TANF and Medicaid Recipients?
Under federal law, all TANF clients are required to cooperate with state authorities in child support establishment and enforcement efforts. The failure of TANF clients to cooperate will result in a loss of TANF eligibility. Some limited exceptions exist for domestic violence situations. Also under federal law, all TANF clients are required to assign their rights to their child support payments to the state in compensation for eligibility to receive TANF. Delinquent obligors whose children are TANF recipients may be required to agree to a payment plan or to participate in work activities.
Providing for children’s health care is a basic responsibility of the child support program. By connecting children to the right coverage for them—coverage through either of their parents’ employers, Medicaid, CHIP, Exchanges, or other options—the child support program can assure that children will have continuous, stable access to health care as they grow up, and that the resources of both parents are being used most effectively for the child. The state child support agency and the state Medicaid agency may work out referrals between the two programs to assure that children in the Medicaid program have access to child support services and that children in the child support program have access to health care coverage options. Parents receiving support who receive Medicaid are also required to cooperate with the state child support agency. Medicaid recipients must assign their rights to medical child support to the state.
Chapter 3: Locating a Parent (Obligor)
One major component of state child support agencies is their parent locator service. State child support agencies follow certain processes to locate parents in order to establish paternity, set orders and collect support payments. However, not all child support cases are handled by the state IV-D agency. Private or non‑IV-D cases, where child support is established and maintained privately, may follow similar procedures even though they do not fall under the same laws and regulations as public cases.
Finding the parent’s address, employer, or financial assets is a key step to collecting support for many children. To establish, modify or enforce a child support order, the child support agency must have a current address or employment information for both parents. Sometimes, the parent owed support does not have a current address or other information about the obligor and the state agency must locate them through other means.
When a parent is referred to the IV-D agency or applies for IV-D services, the IV-D agency has 20 days to open a case by establishing a case record and, based on an assessment of the case, to determine necessary action. The first step is to solicit necessary and relevant information from the parent and verify that information if necessary. Where there is inadequate information to proceed with the case, the agency must request additional information from other sources or refer the case for further location attempts. States use the information collected through the locate process, including home address, earnings, financial assets, property, medical insurance, and employment information to establish paternity, set the orders, and enforce the support obligation.
To find a current location, employer and financial information is the most useful. When the parent owed support does not provide this, state programs use a variety of tools at the federal, interstate, state, and local levels. These include:
- Federal Parent Locator Service.
- Interstate location networks.
- Relatives and friends of the obligor.
- Current or past employers.
- Telephone service providers.
- U.S. Postal Service.
- Financial references.
- Employee unions.
- Police, parole and probation records, if appropriate.
- State agencies and departments, as authorized by state law, including those departments which maintain records of public assistance, wages and employment, unemployment insurance, income taxation, driver's licenses, vehicle registration, and criminal records.
When the agency has sufficient information (i.e., obligor's social security number and/or date of birth), it uses available automated databases to match with other agencies. If the noncustodial parent’s social security number or date of birth is known, the state agency may use the Federal Parent Locator Service (FPLS), which crosschecks information with the IRS, the Department of Defense, the National Personnel Records Center, the Social Security Administration, the Department of Veterans Affairs, and state workforce agencies.
State child support agencies must access all appropriate location sources within 75 calendar days of determining that location efforts are needed, and ensure that location information is sufficient to take the next appropriate action. States must repeat efforts to locate parents quarterly, or as soon as new information is available when initial efforts fail.
The state must establish policies defining diligent efforts to serve process for child support. (Service of process is the procedure of giving legal notice to the person that a court or administrative proceeding is filed against them and allow them to respond to the proceeding.) These policies must include periodically repeating service of process attempts in cases when adequate identifying information exists to reach the obligor.
State Parent Locator Service
States can also perform locate services through their own automated computer systems. The State Parent Locator Service is operated by individual state child support enforcement agencies. It can be part of a statewide child support enforcement system or a separate process. In either case, the state locator service accesses a variety of automated data matches with the Federal locator service and other state and private sources. The state locator service accesses all relevant sources of information and records available in the state, and in other states as appropriate, for locating parents and children for IV-D purposes.
The state locator service consists of multiple systems and interfaces with the statewide child support enforcement system and is likely to include:
- State Directory of New Hires (database of newly hired employees in the state)'
- State Case Registry (central registry of all child support cases).
- State Disbursement Unit (central unit responsible for distributing child support payments).
States may use the state new hire directory and the National Directory of New Hires to locate parents and employment information. (Employers are required to report all newly hired employees within 20 days of hire). States can also search the case registry for parents who may already have a child support order. Agencies can use data matches with state financial institutions to locate obligors’ assets, and with various other state agency databases, such as state departments of corrections and transportation.
If a parent is located through the data matching process, the automated system will notify the responsible caseworker of the source of the location information (e.g. Federal Parent Locator Service or a state source). Caseworkers can review the information and verify the data with the appropriate sources.
When the agency does not have sufficient information, the caseworker will attempt to use appropriate manual sources, such as the post office, telephone companies, contacting friends and relatives, and more recently, social networking sites such as Facebook.
In cases where the parent who owes support lives in a different state, the agency must refer the case to the IV-D agency of the other state. The IV-D agency of the other state shall repeat the procedures, as necessary.
Chapter 4: Establishing Paternity
The timeline for starting a court case to establish paternity varies by state. Acting immediately after the birth of a child makes it easier to find the father. Paternity can also be established across state lines.
Under federal law, all state programs must:
- Permit paternity establishment at any time before the child turns 18.
- Not attempt to establish paternity in any case involving incest or (forcible) rape, or in any case in which legal proceedings for adoption are pending, if, in the opinion of the IV-D agency, it would not be in the best interests of the child to establish paternity.
- Have procedures requiring paternity tests at the request of a child or parent alleging or denying paternity.
- Pay for state-ordered genetic tests, subject to recoupment from the challenging party if the test result is negative.
- Order a second set of paternity tests if the first results are contested and require the party contesting the test to pay for the costs of any such additional testing in advance.
- Have procedures for a simple civil process to voluntarily acknowledge paternity available at hospitals and birth records agencies.
- Include the father’s name on the child’s birth certificate only if both parents sign an acknowledgment of paternity or are subject to a court order.
- Provide written and oral notice of the consequences of paternity acknowledgment to both parents.
- Permit parties to contest acknowledgments and court orders within 60 days─after that challenges are only allowed on the basis of fraud, duress, or mistake of fact.
- Admit genetic test results into evidence and create a rebuttable presumption of paternity if test results are positive to a certain probability (e.g., usually 95% or higher).
- States may limit objections to test results.
- Require Temporary Assistance to Needy Families (TANF) recipients to cooperate with paternity establishment proceedings in order to be eligible to receive TANF benefits.
- Permit a father to initiate a paternity action.
- Not provide a jury trial for paternity proceedings.
Marital Status of Parents
When a married woman gives birth to a child, her husband is presumed to be the father of the child. In these cases, the husband’s name will automatically be added to the birth certificate. The husband has all the legal rights and responsibilities of fatherhood until an order or voluntary declaration "disestablishes" paternity.
When a child is born to unmarried parents, a legal relationship between the father and child must be established before a court or administrative authority will order child support. This legal relationship is called paternity. Establishing paternity for a child born out of wedlock not only provides a legal relationship but also provides a child with access to emotional and financial support from their parent including:
- Interactions and relationships with both parents.
- Access to child support and to federal benefits such as social security.
- Medical insurance and health information.
Legal Establishment of Paternity
There are two ways states can legally establish paternity:
- Voluntary acknowledgment by the parent, or
- State-established legal processes, which often include genetic testing.
Voluntary Paternity Acknowledgment
States must establish a voluntary paternity establishment program in cooperation with hospitals, birth record agencies and other entities who wish to participate such as public health clinics, welfare and food stamp agencies, Head Start or other child care facilities or community-based organizations.
The programs must provide parents with forms that include a description of the rights, responsibilities, and legal consequences of acknowledging paternity. State and federal laws require that each birthing hospital have trained staff who can explain to unmarried parents the rights and responsibilities of, and alternatives to, voluntary paternity establishment.
Most often, voluntary paternity acknowledgment is completed in the hospital within days of the child’s birth. If voluntary paternity acknowledgment is not completed in the hospital, the parents can receive these services at any time from the vital records agency and often the child support agency.
Court or Administrative Establishment
The state has powers to establish paternity through court or administrative action if a father does not voluntarily admit paternity. In judicial cases, child support staff collects information and other evidence about the alleged father and refer the case to the state child support attorney (referred to as the IV-D attorney) for legal action. The IV-D attorney represents the state child support agency. A parent may also hire a private attorney to represent him or her. When the case goes to trial, the mother may be required to be present in court to testify about the father. If the parent lives in a different state, they may be allowed to present testimony telephonically, This must be allowed in states that have implemented the Uniform Interstate Family Support Act 2001.
In states using an administrative process, the agency can issue an administrative order establishing paternity and support. The mother signs an affidavit alleging paternity. The agency serves the father a notice. The notice informs the alleged father that the mother is claiming that he is the father and that the agency intends to establish paternity and support obligations. The notice will also include information about the alleged father’s rights and options for responding to the notice. It will also include information about where and when to take a genetic test. After the notice is sent, the agency files an administrative order.
Upon the request of either parent in a contested paternity case, the court will require all parties (i.e. mother, child, and alleged father) to submit to genetic tests to help the court determine paternity. Genetic testing is typically able to identify a man as the father of a child with a high degree of accuracy. Each state determines the accuracy threshold required to prove that the parent is the biological father. The state can order genetic testing of a potential father even over his objections. If the test results are positive, he can contest the results and request a second set of tests, however, he may be required to pay for the second set. If the test results are again positive, a rebuttable (in some states, conclusive) presumption that he is the father takes effect.
A finding of paternity by acknowledgment remains in effect, unless either signatory rescinds his or her acknowledgment within the earlier of (1) 60 days or (2) the date of an administrative or judicial proceeding to establish a support order. Federal law requires states to accept rescission of a paternity acknowledgment made within that period.
States laws and procedures on rescission vary. For example, some states use an administrative procedure for rescission; others require a formal judicial action. Generally, the state agency must send notice to the non-rescinding party. The rescinding party may have to file a petition to determine parentage and to have genetic testing ordered. In addition, if the father’s name already appears on the child’s birth certificate because of the acknowledgment, a court order permitting the rescission will permit the vital statistics agency to change the birth certificate and remove the man's name from birth records.
States are required to give full faith and credit to a paternity affidavit signed in another state according to its procedures. Any adjudication of paternity issued by a court or an administrative agency of competent jurisdiction is also required to be filed with the state birth records agency. As a condition of receiving federal funds, states must also bar judicial or administrative proceedings to ratify an unchallenged acknowledgment of paternity. Once signed, the acknowledgments must be filed with the state birth records agency.
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.
For more information, visit States' Treatment of High and Low-Income Parents in Making Child Support Determinations.
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.
Chapter 6: Collecting and Distributing Support
States are required to offer child support collection and disbursement services to TANF and non-TANF child support recipients. To facilitate collection and distribution, each state must operate a State Disbursement Unit, discussed below. In addition, a growing practice related to the disbursement is pass-through and disregard policies through which states pass through a portion of the child support collected directly to the family, rather than retaining it as reimbursement for TANF benefits.
State Disbursement Unit
States are required to establish and maintain a state disbursement unit to receive and disburse all payments under a child support order for all IV-D cases and non-IV-D cases with income-withholding orders. (This applies to orders issued on or after Jan. 1, 1994). Some states have received limited waivers to this general rule.
The State distribution units centralized collection and disbursement units for child support payments from employers, income withholders, and others. To the maximum extent possible, state distribution units must use automated procedures to process all IV-D cases and non-IV-D cases with income withholdings and distribute payments within two business days of receipt by the SDU. Disputed arrears disbursement may be delayed until the resolution of any appeal.
In addition to receiving and distributing payments, state distribution units are responsible for:
- Accurately identifying payments.
- Promptly disbursing payments to parents owed support.
- Furnishing payment records to any parent or to the court.
The state IV-D agency, a consortium of IV-D agencies, or a private contractor may operate a state distribution unit. They may also link local disbursement units within a state. If states chose to link local units, employers completing income withholding can only be required to send payments to one place.
Federal law also requires the use of a standard withholding process to increase child support collections for all families, promote self-sufficiency for low-income families, and reduce the burden on employers. The income withholding order is the standard form approved by the Office of Management and Budget that all entities must use to direct employers to withhold income for child support payments.
Pass-Through and Disregard
Under federal law, states are allowed to retain child support payments to reimburse themselves and the federal government for TANF payments to the family, up to the amount of the child support order. States also have the option to pass through all or a portion of the child support directly to the family. Some states have chosen to retain most of the child support paid on behalf of children in families receiving TANF benefits to offset expenditures incurred by the state. These collections are shared between the state and federal governments according to the state’s Medicaid federal matching rate.
Current TANF Recipients
Families currently receiving TANF assistance are required to assign their rights to child support to the state in order to receive benefits. Accordingly, any child support collected on behalf of the family is shared between the state and federal governments. States have the option to pass through all or a portion of child support payments to the oblige (i.e. parent and child owed support) when receiving TANF.
States allowing the pass-through must decide how to calculate eligibility and benefit amounts for TANF. They may pass-through any or all child support and disregard those payments when determining eligibility for benefits. States also can choose to pass through any or all of the child support but not disregard those payments as income when determining TANF eligibility or benefits. If the state does not disregard the child support amount, child support may reduce TANF benefits dollar-for-dollar.
Former TANF Recipients
When a family's TANF are terminated, they regain their right to currently owed child support, and they receive all current child support collections unless arrearages accrued while on assistance. In these cases, the state retains the right to child support arrears and will continue to collect payments on behalf of the state. Once the arrears are paid, any support collected is paid to the family.
Research shows that more generous pass-through and disregard policies increase the amount of child support received by parents. Evidence also shows these policies encourage fathers to work and pay child support, reduce fathers’ participation in the underground economy, assist families making the transition from welfare to work, and increase family financial security.
Chapter 7: Enforcing Child Support Orders
Parents who do not pay court-ordered child support are subject to enforcement measures to collect regular and past-due payments. States have a variety of tools to encourage compliance with orders and ensure payments are made, including income withholding, tax refund offsets, property liens, asset seizure, credit bureau reporting, insurance matching, license suspension or revocation, passport denial, and civil or criminal contempt charges. Certain actions must be taken; however, states have some flexibility to target its enforcement strategies on what will be most successful based on family circumstances.
States must establish procedures indicating when they will pursue such enforcement actions. States are required to initiate income withholding and submit all eligible cases for state and federal income tax refund offsets. States can waive certain enforcement strategies, such as state income tax refund offset, liens, posting a bond, or reporting to credit bureaus if the state determines that it is not appropriate given the parent’s payment record, availability of other remedies, and other relevant considerations.
States have the option to implement their own procedures to encourage compliance with child support orders. Some states intercept lottery and other gambling winnings, others have established a public list of parents who are delinquent on payments, and still others use car boots or electronic monitoring devices to enforce payment. More recently, states are using other tools to increase the reliability of payments to support children. Recent research has shown that offering debt reduction programs; distributing all payments to children; encouraging engagement with parents paying support through parenting time agreements; and offering employment services to families are affecting ways to help parents meet their financial support obligations. States are continuously developing policies and practices to meet the needs of families, especially considering changing family demographics and economic circumstances.
Most child support orders require employers and payers of funds to automatically withhold basic support, medical support and spousal support obligations from an obligor’s income. Income has been defined as any periodic form of payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability payments pursuant to a pension or retirement program, and interest. Payers of funds include employers, trustees, self-employed individuals, financial institutions, unemployment insurance, worker’s compensation insurers, unions, individuals or companies paying independent contractors and others who make periodic payments. If a parent has been ordered to pay child support and is employed (even in another state) that parent’s employer, when notified, must withhold child support from the parent’s paycheck. Employers must honor a child support income withholding order before any other garnishment, except an IRS tax levy entered before the child support order.
States must use their automated system to assist with the collection of child support. Immediate income withholding requires that the income of the obligated parent be subject to income withholding "regardless of whether support payments by such parent are in arrears." (See Family Support Act of 1988) Congress included two exceptions to immediate income withholding: when one of the parties demonstrates, or the court or administrative process finds, there is good cause not to require immediate income withholding, or when a written agreement between the parties provides for an alternative arrangement.
Based on the Federal Consumer Credit Protection Act of 1914, all income withholdings have a set upper limit on what may be withheld. The federal withholding limits for child support and alimony are based on the disposable earnings of the employee. The limit is 50% of the disposable earnings if the employee supports a second family and 60% if the employee does not support a second family. This limit increases to 55% and 65% respectively if the employee owes arrearages that are 12 weeks or more past due. States may choose a lower limit.
State laws and procedures vary in whether the state may collect from lump-sum payments or whether employers/payers may charge fees to process withholding payments.
Tax Refund Offsets
Federal Income Tax Refund Interception
The Federal Income Tax Refund Offset Program collects past-due child support payments from the tax refunds of parents who have been ordered to pay child support. The program is a cooperative effort between the federal Office of Child Support Enforcement, the Internal Revenue Service, the Financial Management Service of the Department of the Treasury, and state child support agencies.
The federal tax refund offset is mandatory for cases meeting the eligibility criteria. Cases receiving full services through the state IV-D child support enforcement agency that have delinquent child support debt are eligible for federal tax refund offset. For cases receiving Temporary Assistance for Needy Families (TANF), the parent must owe at least $150; in non-TANF cases, the amount owed must be at least $500. In some states, the parent receiving support may be charged a fee not greater than $25 for this service.
Federal distribution rules require that money received through federal tax intercept be applied first to arrears owed to the state. If child support arrearages are owed to the state for assistance payments made to the family, that money must be repaid before money is distributed to the family. If the child support order includes an award for spousal support, the tax refund may also cover the past-due spousal support.
State Tax Refund Offset
States may intercept a parent paying support’s state income tax refund. The states are responsible for establishing eligibility criteria and procedures for this program.
Property Liens and Levies
The state child support agency may place a lien for unpaid child support on real and personal property, including houses and vehicles. States are required to have laws outlining the procedures for the imposition of liens. When property has a child support lien, potential buyers, title companies and lenders can find that a lien exists on the property. The lien remains on the property until the amount owed is paid. The lien applies to property that is owned at the time the lien is recorded and to all property that may be acquired later. Liens can last for years, depending on the state statute, and generally can be revived for an indefinite number of additional periods, if the underlying judgment survives. The lien may grow automatically, as the arrearage increases, and may even take priority over subsequent liens created by other creditors if the statute so provides. Some states have given priority to child support liens over most other liens.
Seizure of Assets and Benefits
Child support agencies have the authority to seize various assets as another way to enforce child support orders. These include public and private retirement funds, checking, savings and other accounts held by financial institutions, as well as some benefits. This type of attachment and seizure of assets falls within three broad enforcement tools:
- Financial institution data matching
- Federal administrative offset
- Interception of benefit payments.
Financial Institution Data Match (FIDM)
State child support programs must enter into agreements with financial institutions in their state to conduct data matches to identify accounts of delinquent child support obligors. Financial institutions participating in FIDM include banks, savings and loans; federal and state credit unions; benefit associations, insurance companies, safe deposit companies, and money market mutual funds. The types of accounts subject to the program are demand deposit accounts, checking accounts, savings accounts, time deposit accounts and money market mutual fund accounts. Matches can be conducted each quarter of the calendar year.
Multi-State Financial Institution Data Match
State agencies may also participate in a federal effort to identify accounts of delinquent child support obligors. Multi-State Financial Institution Data Match allows financial institutions doing business in two or more states to report directly to the federal Office of Child Support Enforcement rather than to each individual state in which it does business. The office provides information on delinquent obligors based on data submitted by the state. Financial institutions match this information against their accounts and returns any matches to the Office of Child Support Enforcement. The federal office then shares the information with the state submitting the obligor's name and social security number. State agencies may issue liens or levies on the accounts, depending on state laws governing this type of enforcement action.
Federal Administrative Offset
States can work with the federal government through a process called administrative offset, which allows states to conduct a seizure of federal payments to satisfy a child support debt. The federal Debt Collection Improvement Act of 1996 allows certain federal payments (e.g., payments to government contractors, federal retirement payments, and certain reimbursements to federal employees) to be offset. State participation in the administrative offset program is optional. A case may be submitted for administrative offset when the debt is at least $25 and is 30 days past due, although states have flexibility to determine a higher threshold. Both recurring and nonrecurring payments are eligible for administrative offset. Certain payments cannot be intercepted through this program, including veteran’s disability benefits, federal student loans, some social security payments, and other need-based programs such as Supplemental Security Income.
States may seek to attach any benefits or assets owned by the parent paying support and held by another person, institution, or entity (e.g., bank or retirement account), including unemployment benefits and worker’s compensation payments. States must match data with their unemployment compensation agency to identify and withhold child support payments from the parent paying support’s unemployment insurance benefits. States may also have the authority to attach workers' compensation benefits from parents who owe child support. Weekly benefits or lump sum payouts may be taken to pay child support.
Credit Bureau Reporting
States are required to periodically report the names of parents paying support and child support information to consumer reporting agencies. Child support obligations are considered to be judgments, renewable each month, and therefore, are appropriate to be reported to consumer reporting agencies. Each monthly payment satisfies the current month's obligation, but each new month begins a new obligation until child support is no longer owed, such as when the child reaches the age of majority. Child support agencies are free to provide information to credit bureaus on any parent with a legitimate child support obligation, whether or not in arrears.
Federal law requires child support agencies to notify parents paying support in advance concerning the proposed release of information to consumer reporting and to inform them of the methods available for contesting the accuracy of that information. Parents must be notified of the reporting as part of the court order or through a manual notice. With interstate child support enforcement cases in which an initiating state has requested a responding state to enforce a support order, the responding state reports child support obligations to consumer reporting agencies.
Consumer credit reporting can create an incentive to make prompt and consistent payments in order to avoid a negative report. This may be particularly effective for self-employed parents who are dependent on credit to operate a business. Credit reporting is also a way to substantiate income and aid in securing additional collections.
The federal Office of Child Support Enforcement also works with the insurance industry to match insurance claimants and beneficiaries to child support obligors in order to help states in the collection of child support. The office operates the Insurance Match Program with insurers, agents or state agencies receiving claim information and provides matches to the state child support agency responsible to collect the child support from the delinquent obligors.
Currently, the federal program is matching individuals delinquent in their child support obligations with 20 state workers' compensation agencies, over 577 insurance companies through the Insurance Services Office and the U.S. Department of Labor.
Posting Security, Bond or Guarantee
States may require the obligor to post security, bond, or some other guarantee to secure payment of the overdue support. The state must provide advance notice to the parent paying support regarding the delinquency of the support payment and the requirement of posting security, bond or guarantee, and inform the parent paying support of his or her rights and the methods available for contesting the impending action, in full compliance with the state's procedural due process requirements. The state must develop guidelines, which are generally available to the public to determine whether the case is appropriate for application of this procedure.
The Passport Denial Program is another tool provided to states in collaboration with the federal government. Under the program, parents paying support certified by a state as having arrearages exceeding $2,500 are submitted by the federal Office of Child Support Enforcement to the Department of State, which can deny or place restrictions on the person’s U.S. passport. Parents paying support are not automatically removed from the Passport Denial Program even if their arrearages fall below the $2,500 threshold. States can choose not to submit a person’s name to the passport denial program under certain circumstances.
Federal law gives states authority to withhold, suspend, or restrict the use of driver’s licenses, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support. Parents who fail, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings may also be subject to license suspension or restrictions.
Civil and Criminal Contempt
States also use civil contempt actions, incarceration, criminal contempt and bench warrants to enforce child support payment compliance. Failure to pay child support is a violation of a court order to pay, and therefore it is handled as a civil contempt of court case. A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can avoid jail time by either paying the amount owed, or by showing that he or she is incapable of paying.
Because parents have a legal obligation to provide support for their children and failure to provide such support is considered a crime against the state, it is generally known as criminal nonsupport. Criminal nonsupport statutes exist, in some form, in all 50 states. The severity of the punishment ranges from misdemeanors with small fines and short jail sentences to felonies with high fines and lengthy prison terms. While the elements of the statutes vary from state to state, generally a state must prove that 1.) the defendant acted knowingly or intentionally; and 2.) the defendant failed to provide support. These methods are often viewed as last resort options.
For more information, visit Criminal Nonsupport and Child Support.
U.S. Attorney Referral for Criminal Prosecution
The Child Support Recovery Act of 1992, Pub. L. No. 102-521, makes the willful failure to pay a past due support obligation with respect to a child residing in another state a federal offense. A first violation of the act is punishable by six months imprisonment and/or a fine. Subsequent violations are punishable by two years imprisonment and/or a fine.
The Federal Bureau of Investigation has primary investigatory jurisdiction. Additionally, Special Agents of the Office of the Inspector General of the United States Department of Health and Human Services have been given authority to investigate violations of the act.
The federal government must prove the defendant has the ability to pay, willfully failed to pay, and has a known past due child support obligation that is at least one year in arrears or is an amount greater than $5,000. The child must also who reside in another state.
State Optional Mechanisms
States have the flexibility to use additional tools to enforce child support orders that are not required by federal law or regulations. Examples include intercepting lottery winnings, public listings of delinquent obligors, car boots, and electronic monitoring. Some states have included more services to parents owing support and passed laws requiring job search or other employment training to help parents increase earnings.
States may intercept funds from lottery winnings to pay child support. Some states are also intercepting winnings from casinos and other gaming establishments.
Publication of Delinquent Obligors
Some states have established programs for the publication of listings of child support obligors who are delinquent in their support payments in newspapers or online. Publications may display photographs of and information about the obligors. The publications often list a toll-free telephone number to report information regarding the whereabouts of any of the obligors displayed in the publications.
Some states use a wheel boot on vehicles of individuals who do not pay child support. The boot immobilizes the vehicle until its owner contacts the state agency and pays or works out a payment plan. The state must verify the vehicle is solely owned by the obligor, co-owned with the obligor’s current spouse, or owned by a business where the obligor is the sole proprietor and must notify the obligor of the intent to boot the vehicle. If the obligor does not contact the enforcement office after the vehicle has been immobilized, the vehicle may be deemed abandoned and sold.
Electronic Monitoring (Ankle Bracelets)
Some states have also chosen to use electronic transmitter bracelets on child support obligors to encourage compliance with child support orders. Research found modest improvements in child support payment compliance.
Employment Services and Fatherhood Programs
Some states may use court-ordered employment programs for unemployed parents paying support. Such programs can increase child support collections and improve employment outcomes. The premise of these programs is to use a work-oriented program instead of ordering jail time.
Child support programs sometimes collaborate with fatherhood programs. Often voluntary, these programs are similar to court-ordered programs; however, they include more intensive employment services and include a fatherhood component. These programs focus on helping fathers overcome economic and emotional barriers to supporting their children.
Chapter 8: Enforcement Monitoring
States with technological advances conduct much of the enforcement of a child support obligations with automated systems. For example, when reaching a threshold amount of arrears, the automated system initiates administrative enforcement actions available in the state, such as automatic income withholding, license revocation, and referrals to the state or federal agencies for tax-refund intercept programs.
States with less automation rely on caseworkers to interview involved individuals, use personal contacts, make telephone collection calls, use billing systems, and produce delinquency notices. Use of a particular collection technique depends on the individual facts and circumstances of a case, such as past payment history, age of the established obligation, date since the last payment was received, location, income, and resources available to the parent paying support.
These administrative and non-judicial enforcement techniques can minimize the use of court personnel and attorneys. When these enforcement techniques are unseccessful, the IV-D agency must use its administrative authority or a court's authority to quickly enforce the obligation and establish regular payments.
Child Support Policy 101 Session
Stay tuned for a recording of NCSL's Child Support Policy 101 session for new legislators and legislative staff. Coming February 2021.