By William Laufer, Esq. and Jennifer L. McInerney, Esq.
If you are a parent, presently involved in a divorce litigation, or in the alternative, contemplating filing for divorce against your spouse, the issue of child support has surely crossed your mind. The concept of child support is generally simple; the non-custodial parent paying to the custodial parent support in consideration for the custodial parent providing for the child’s basic needs such as food, shelter, and clothing. However, as simple as that idea may seem, there are many factors which affect the actual calculation of child support.
The Guidelines were adopted for the purpose of establishing a uniform method of calculating fair and adequate child support. The Guidelines are based on the following premises:
- Child support is a continuous duty of both parents,
- Children are entitled to share in the current income of both parents, and
- Children should not be the economic victims of divorce or out-of-wedlock birth.
New jersey has adopted the “income shares” approach to sharing child-rearing expenses. This approach provides that each parent contribute a pro rata share of child support, based upon that parent’s net income.
Net income is defined as gross income minus income taxes, mandatory union dues, mandatory retirement, and previously ordered child support payments. Additionally, alimony payments are added to the receiving spouse’s gross income and subtracted from the obligor spouse’s gross income.
While an emphasis is placed on income, the fact that a parent is unemployed may not be dispositive. If the Court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it will impute income to that parent according to the parent’s potential earning capacity based on work history, qualifications, education or based on the parent’s former income at that person’s usual or former occupation.
The criteria for determining whether income should be imputed to a parent is as follows:
- What the employment status and earning capacity of that parent would have been if the family had remained in tact;
- The reason and intent for the voluntary under-employment or unemployment;
- The availability of other assets that may be used to pay support;
- The ages of the children in the parent’s household and child care alternatives.
It is interesting to note that the Court, in imputing income to a parent who is caring for young children, will deduct from the imputed income, that parent’s share of child care costs necessary to allow that parent to work.
The Child Support Guidelines apply to families with one to six (1 to 6) children, with combined net weekly incomes of $170 per week to $2,900 per week. The Guidelines provide a table outlining each potential combined net weekly income figure, and a corresponding child support award based on the number of children in the family. These tables were developed based on the amounts spent on children by parents of intact families. Once the appropriate child support award has been determined, each parent’s share of said award is calculated based on that parent’s pro rata share of the net combined income.
The Child Support Guidelines are intended to apply to children who are younger than eighteen (18) years of age, or older than eighteen (18) but still attending high school. The Guidelines are not intended to apply to children who are attending college. The reasoning behind this is that many costs associated with college attendance, including room, board, transportation, are included in the Child Support Guidelines award. Thus, a parent who is ordered to pay a Guidelines based child support award and a portion of the child’s college expenses is forced to make duplicate expenditures for the child. As a result, the level of total spending on the child would exceed that of intact families in a similar economic situation and would undermine the theory of the Child Support Guidelines.
It must also be kept in mind that a Child Support Guidelines award represents child rearing expenditures averaged over the entire age range of a child from 0 through 17 years old. This averaging means that the awards for younger children are slightly over-stated due to the higher level of expenditures for older children. Accordingly, if an award is entered when a child is very young, and said award continues through the child’s eighteenth (18th) birthday, the net effect is negligible. However, initial awards for children in their teens are underestimated by the averaging and are therefore adjusted upward to compensate for this effect. Accordingly, an initial award made to a child between the ages of 12 through 17 will be adjusted upwards.
Child support awards include the child’s share of expenses for housing, food, clothing, transportation, entertainment, un-reimbursed health care up to and including $250 per child per year, and miscellaneous items. More specifically, the category of housing includes the child’s share of the mortgage, interest payments or home equity loans, property taxes, insurance, repairs, maintenance, rent, parking fees, expenses for vacation homes, lodging while out of town, utilities, all domestic services, repairs on the home, furniture, major appliances, postage, laundry or cleaning supplies, household and lawn products, all furniture, floor coverings, miscellaneous household equipment, including clocks, luggage, light fixtures, computers and software and decorating items. It is also interesting to note that the net purchase price of a home in mortgage principal payments are considered savings and are not included as expenditures in this category.
The category of food includes the child’s share of all food and non-alcoholic beverages purchased for home consumption or purchased away from home, including vending machines, restaurants, tips, school meals, and catered affairs. Obviously, alcoholic beverages and cigarettes are not included in this category. With respect to clothing, all children’s clothing, footwear (except special footwear for sports), diapers, repairs or alterations to clothing and footwear, storage, dry cleaning, laundry, watches and jewelry are included.
The child’s share of transportation expenses include all costs involved with owning or leasing an automobile including monthly installments towards principal cost, finance charges, lease payments, gas, oil, insurance, maintenance and repairs. Parking fees, license and registration fees, towing, tolls, and automobile services clubs are also included. However, the net outlay for a vehicle purchase is not included.
Un-reimbursed health care expenditures up to and including $250 per child per year are included in the child support schedule. Such expenses are considered ordinary and may include items such as non-prescription drugs, co-payments or health care services, equipment or products. However, the parent’s cost of adding a child to a health insurance policy is not included in the schedule and may be added to the basic obligation if incurred.
Entertainment expenses cover the child’s share of fees, memberships, and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, radios, pets, hobbies, toys, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.
Miscellaneous items include the child’s share of personal care products and services, books and magazines, education (tuition, books, supplies), and in cash contributions.
While the above list is not intended to be inclusive of every expenditure included in a Child Support Guidelines award, same is set forth above for reference purposes. In addition to the expenses set forth above which are included in the child support award, there are other expenses that may be incurred which may be added to the basic child support obligation. The following child related expenses represent large or variable expenditures and are not incurred by typical in-tact families. Accordingly, they are not included in a basic child support award. However, if a particular expenses is incurred by a particular family, then that expense should be added to the basic child support obligation. For instance, child care expenses, the parent’s marginal cost of adding a child to a health insurance policy, and predictable and recurring expenses in excess of $250 per year per child are not included in a Child Support Guidelines calculation.
Additionally, the Court has within its discretion the ability to include other predictable and recurring expenses in a child support award. For instance, private school educations, special needs of gifted or disabled children,, and visitation transportation expenses may be added to the basic child support award if same are approved by the Court. It should also be noted that any expenses that are not predictable and recurring should be shared in proportion to the parties’ relative income.
There also exist several factors which may require an adjustment to the basic child support obligation. The Guidelines include a mechanism to proportion a parent’s income to all of his or her legal dependents regardless of he timing of their birth or family association. More specifically, if a divorced parent remarries and has children, that parent’s income should be shared by all children born to that parent. Accordingly, an adjustment of the Child Support Guidelines may be warranted. Similarly, when one individual is obligated to pay child support to multiple families, it may be necessary to review all past Orders for that individual. It may then be necessary to either average the Orders or formulate some other equitable resolution to treat all supported children fairly under the Guidelines. Another adjustment to the child support award may be required if the child receives government benefits based on a parent’s earnings record, disability, or retirement. Since such payments are meant to replace the lost earning of the parent, the benefits must be deducted from the basic support obligation.
