Dying Without a Will

Child support plays a huge part in family law. Hopefully, this post will banish some of the mystery surrounding the child support process and give a clearer understanding of what to expect if child support becomes part of your case.

Child support can originate in a few ways, including:

  1. A mother can ask for child support through Mississippi’s Department of Human Services (“DHS”).
  2. DHS can, on its own, demand child support if the custodial parent (the parent the child lives with) receives government assistance.
  3. An individual with a child born outside of marriage can initiate a custody proceeding.
  4. A divorce action.

How is the payment amount set?

By law, the child support amount is deducted from the non-custodial parent’s (the paying parent’s) monthly adjusted gross income at the following percentages:

1 Child = 14% of Adjusted Gross Income

2 Children = 20% of Adjusted Gross Income

3 Children = 22% of Adjusted Gross Income

4 Children = 24% of Adjusted Gross Income

5+ Children = 26% of Adjusted Gross Income

Note: The adjusted gross income from your tax return (divided by 12 to give a monthly value) often gives a good estimate of your adjusted gross income subject to withholding under child support law, but be aware that the formula used to calculate each AGI amount is different – in some cases this difference can cause dramatically different outcomes.

The Court can consider other factors and even dramatically alter the payment amount if the paying parent’s adjusted gross income amount is less than $10,000 or more than $100,000 annually. Self-employed individuals or individuals with irregular income can be held to an estimate of what they might make in a year, even if they actually end up making less.

How is child support paid?

Generally speaking, child support is either paid through DHS (which withholds from the paycheck of the paying parent and transfers to the custodial parent), or by automatic debit from the paying parent’s bank account to the custodial parent’s bank account. If a suit is filed by DHS, you won’t have a choice – the payments will go through DHS.

Can the payment amount be changed? How?

The child support obligation can be modified, usually by the request of a party or by the request of DHS. Successful modification usually requires showing that circumstances have significantly changed in a way that couldn’t be anticipated at the time of the original payment determination. (Think: unexpectedly getting laid off, becoming disabled and unable to work, etc.)

Keep in mind that it’s important to move quickly on a child support modification. Child support vests as it becomes due, which is a fancy way of saying, “don’t expect the judge to make any change retroactive.” Any amount that has already accrued is due and payable, many times without recourse.

When does child support end?

Child support responsibilities usually terminate in three ways:

  1. Termination of parental rights – usually done either to allow an adoption or to take children away from an unfit parent.
  2. Disestablishment of paternity – this suit to terminate child support obligations is filed when a payor finds out he is not the father of a child. Note: he usually won’t get back the money he has paid in.
  3. Emancipation of child – this usually occurs when a child turns 21 or is married, although in certain cases support can be discontinued by a judge when a child moves out of the parent’s home, obtains full time employment, and discontinues schooling. Note: if you agreed at any point with the other parent to continue paying child support beyond the child’s 21st birthday (say, to the end of college), you may be obligated to do so.

The most important thing to keep in mind when dealing with child support is that each situation is unique in terms of case history, facts, circumstances, and location. That’s why it’s important to sit down with a qualified attorney to discuss the specifics of your case.