There are a lot of misconceptions about child support held by people who don’t deal with family law issues.
First, the notion that only fathers pay child support is not true, at least, not under the rules in Michigan, and in many other states. A second misconception is that Courts don’t account for all parts of a person’s income. While the Court can only make decisions based on the information that is actually provided to it, supported by documentation at a hearing, it is the individual’s job to make sure they are presenting evidence to accurately show their income.
A third improper thought about child support is that if you are paying support under a Court order, but your children are now living with you, the obligation to pay support stops and that you are no longer required to pay support, despite the order to do so.
We will discuss these below, as general advice, but any person with a child support problem should consult with a Michigan family law attorney who understands the complexities of child support issues.
How is Child Support Calculated?
In Michigan, child support is calculated by a mathematical formula that, at its most basic form, accounts for two things: the income of the two parties and the number of overnights the minor child(ren) spend with each party. The State Court Administrator’s Office in conjunction with the Friend of the Court offices of the Circuit Courts for each county establish Guidelines, or rules, regarding how to establish how to calculate a parties’ income and how to determine when to calculate an overnight with each parent.
First, the Court must determine the income of the parties. There is a system that the Court’s use to make that determination. As examples, the Guidelines use W-2 Medicare Wages as a baseline for calculating income. The Court may do that based on the last filed year of tax returns, or they may base that off of a series of paychecks from the current year showing monthly income. From there, certain payments may be excluded, but certain other financial compensation and payments must be added in.
By way of example, you can exclude payments for health insurance coverage for the minor child(ren), mandatory union dues payments, child support payments made for the support of another child, among others. However, the list of exclusions is much narrower than the list of things that must be included. You may include any amounts placed voluntarily into a 401k or pre-tax IRA account. You may include “perquisites” provided by an employer as part of a compensation package.
For example, the value of a company car, frequent flier miles, restricted stock units, quarterly or yearly bonuses and life insurance payments. If a person’s income fluctuates by a certain percentage each year for at least three years, there is a process by which those incomes can be averaged, and the averaged number may be used.
Needless to say, the process of calculating income is complex, and you should consult or hire a lawyer to help you make this determination.
Overnights are calculated based on the actual number of nights the children spent with each parent, regardless of what is presented in the Order. You may not count overnights that are had in violation of the Court Order, but you can count additional overnights that are given up by the other parent because they are not available to have their scheduled overnight, or because they do not want to have their scheduled overnight. Determining the appropriate number of overnights is a simpler process, in most cases, than determining income.
How Can I Get the Court To Change Support?
In order to petition for a modification of support, the moving party must be able to present evidence that there has been a “change of circumstances” since the entry of the last support order. Loss of a job or a change in salary, for examples, are bases for a modification of support. If one person has twenty-one more overnights with the minor child(ren) than scheduled in the parenting time order, that is a basis for a motion to modify child support as well. To ensure that you have a basis to seek a modification, you should consult with a family law attorney who can provide you with advice about your specific situation.
Which Parent Has to Pay Child Support?
That depends. Despite common myth, fathers do not always have to pay child support to mothers. If parents have equal parenting time, and the mother makes more money than the father does, mother will have to pay child support, in most circumstances. Even if mother has more overnights than father, if mother makes substantially more money than father, mother may still have to pay child support to father.
The formula calculations eliminate many of the perceived biases in the support system, favoring a balance between party income and overnights with the child, as opposed to perceived gender roles.
As a general rule, if you make more than the other party, there is a good chance you will owe support, whether you are mother or father. If you have a lot more overnights with the child(ren) you are, as a general rule, more likely to receive child support than not. While that may not be true in every case, that is a good general rule of thumb you can follow when trying to make your decisions about child support with your attorney or on your own.
Do I Have To Pay If I’m Ordered To Pay, But I Have My Kids?
The simple answer is yes. If you are ordered to pay support, you must pay support until the order is changed. If you did not have your children for much time when the ordered was entered, and now you have them all the time, you must still pay based on the present order. If you want to stop having to pay child support in such a circumstance, you must file a motion and have the Court modify your present order. If you stop paying support, even if you have your children full time and are still ordered to pay support, you will be in violation.
The arrearages will add up, the State will impose an eight (8) percent charge on the arrearage, which will also have to be paid, as well as additional State mandated fees. The Court can file a show cause against you, which subjects you to the potential of jail time for a violation.
The moral of the story, if there is a change in income or parenting time since your last child support order was entered, you need to consult with an attorney and make sure to discuss your options.
Once you file for a modification, there are positive consequences that may apply to you as well. Those are things to discuss with your attorney when meeting about your individual situation.
If you have questions about your child support, or any other family law situation, give Fowler & Williams, PLC a call.
We can meet with you, discuss your options and try to alleviate your problem.