CHILD SUPPORT Flashcards
(9 cards)
Child Support
Both parents share equally a duty to support their children. The amount of the award of support to the custodial parent is usually arrived at by use of a formula based on the number of children, their ages, and special needs, and the parents’ income. Visitation cannot be withheld because of a failure to pay.
Child Support Modification
Child support is modifiable based on a substantial change in circumstances affecting the needs of the child or the ability of parent to pay, such as: changes in employment, the growth of the child, inflation, income, retirement, or disabling illness. Under the federal Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to the child support orders of a court in another state.
Modifying a Support Order of Another State (UIFSA)
Generally, the court that issues the controlling child support order has continuing and exclusive jurisdiction to modify it. The role of a court in another state is only to enforce the original order, UNLESS:
(1) the parties no longer reside in the issuing state, or
(2) the parties consent in a record to the non-issuing court’s assertion of jurisdiction to modify the order.
Child Support Termination
The duty to support a child ceases upon the child’s emancipation (18), the child’s marriage, termination of parental rights, or the death of the supporting parent. Child support may be indefinite for a severely disabled child. Some courts require child support payments up to a certain level of education, but others have held it is unconstitutional to require a parent to pay for college.
Enforcement of Awards
Spousal and child support awards may be enforced by holding the nonpaying party in contempt of court (Usually civil contempt, but criminal if failure to pay is willful). Other sanctions include: judgment against the noncomplying party; seizure of his real estate; attachment of his wages; and the order of payment of attorney fees. In addition, child support may be enforced through automatic wage withholding once the court has issued a support order; interception of the noncomplying parent’s tax return; or nonrenewal or refusal of a professional or driver’s license.
Uniform Interstate Family Support Act (UIFSA). Provides methods of enforcement and guidelines for modifications of support orders issued in other states. (SEE ABOVE UNDER CHILD SUPPORT)
Mediation
Some courts may refer the parties to a divorce action to a court approved mediator. Mediators must explain the mediation process, including the right to independent counsel, ensure the parties have enough information for informed decision-making; be impartial and disclose any potential bias; control for any power imbalance between the parties.
Separation Agreements
A separation agreement is an agreement entered into during marriage under which the parties agree to live apart and resolve economic issues (spousal support, property division, child support) and custody rights. To be enforceable the agreement must be voluntary, and there must have been a full and fair disclosure by both parties. Consideration for the agreement is found in the mutual promises of the parties.
Separation Agreement and Effect Provisions
Provisions relating to property and spousal support will be enforced by the court. Child custody and support provisions, however, will be enforced by the court only if they are in the child’s best interest.
Separation Agreements and Divorce Decrees
If the divorce decree states that the separation agreement is MERGED into the decree, or if the specific provisions of the agreement are repeated in the decree, the whole agreement assumes the status of a court judgment and is enforceable as such. If the agreement is NOT merged, it retains its separate character as a contract and is enforceable as such. A statement by the court that it is “incorporating the agreement by reference” is generally insufficient to constitute merger.
