CHILD SUPPORT

 

 

CHILD SUPPORT

 

Child support is designed to support a child’s overall well-being. In Alabama, both parents are required to contribute to the support of their child. When families are in emotional turmoil, support is also an issue that most parents have trouble coming to an agreement on their own. At Charlotte Christian Law, we provide a strong legal advocacy for parents, both mothers and fathers. Our Family Attorney will develop the right strategy to ensure that your child receives the financial support they deserve, that is fair to both parents and the circumstances of the case, regardless of where you reside.

Family Law Child Support Services In Alabama & Out of State

Support is complex. In Family Law, we see child support orders in various stages: initial filings, modifications, enforcement, and out-of-state child support. We also see and advocate for parents in support matters requiring a preliminary paternity determination.

Child Support

The Alabama Court of Civil Appeals stated in 2003 that “Alabama law has long recognized that a parent has a natural legal right to the custody, companionship, care, and rearing of his or her child but that the parent also has a legal obligation to support, care, and train the child,” citing a state supreme court case from 1939.

Alabama courts have said that parental support is a fundamental right of all minor children. “It is a continued right, which cannot become stale until after the child reaches the age of majority. The right of support is inherent and cannot be waived, even by agreement.” In addition, the custodial parent isn’t allowed to agree to forgive the amount due under a child support arrearage, and the parent can’t waive child support due under a court order.

Child support, in addition to child custody and visitation, is a very emotional and legally complex part of a divorce negotiation. Alabama courts typically award full or primary custody of minor children to one of the parents, while the other parent will pay child support. Typically, the non-custodial parent is the party who will pay child support to the custodial parent.

Alabama courts have devised a formula that is generally used to determine the amount of child support to be paid. If the non-custodial spouse is gainfully employed with a stable income, the guidelines make it fairly simple to figure out the amount of child support, since it is based primarily on how much he or she earns. However, if he or she is between jobs or unemployed, additional factors may come into play to determine the amount of support the custodial parent will receive. This is discussed in more detail below under Child Support Calculations.

There are three ways of determining child support in the State of Alabama:

  • An agreement that’s reached between the parents through informal negotiations;
  • An agreement reached between the parents after using an alternative dispute resolution (ADR) process such as mediation; and
  • A court order.

Unfortunately, most parents are unable to sort out their differences when it comes to raising their children separately, so the court must assist in making these determinations.

Child Support in Joint Custody Situations

Alabama courts have stated that the purpose of child support is to ensure the children are given adequately care and support, regardless of where they live. Children have a right to benefit from the income of both of their parents just like they would have if their parents stayed together.

Non-custodial parents are required by law to pay a monthly allowance, or child support. This is to help the custodial parent with their child’s expenses. An order of child support may follow a divorce or a determination of paternity.

There are significant fines and even jail time for a parent who does not keep up with his or her court-ordered payment obligations.

Establishment

The way that you obtain a court order for child support is called establishment.

The court uses the Alabama Schedule of Basic Child Support Obligations as guidelines to make fair and consistent support orders. The first step in the process of obtaining a child support order is to gather financial information from both parents, which will include wages and other income, as well as certain expenses. This is detailed below under the section entitled, Child Support Calculations.

As mentioned above, the simplest and most expedient way to obtain a child support order is in informal negotiations which are memorialized through a voluntary agreement. When the noncustodial parent agrees to the amount owed under the Alabama’s Schedule for Basic Child Support Obligations, he or she will be asked to sign an agreement form. That agreement will be submitted to a child support judge. If and when approved, it is filed with the clerk of the court and is then a legally binding order. Alabama Courts say that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected.

Child Support Calculations

The calculations for child support is formulated by the state courts and agencies in Alabama, however, there are certain federal guidelines that must be heeded the Child Support Enforcement Act.

There’s quite a bit of variation between states in how they calculate child support in light of the fact that each state sets up its own child support system. Alabama, like most states, looks at several specific factors that are based upon the financial needs of the child. These include education, day care, insurance, and special needs, along with the income and needs of the parent with custody of the child, the income and ability to pay of the non-custodial parent, and the child’s standard of living before any separation or divorce (but the courts recognize that it’s difficult to maintain the same standard of living).

Alabama’s Child Support Guidelines were adopted pursuant to requirements of the Child Support Enforcement Amendments of 1984 and the Family Support Act of 1988. The guidelines provide the standard support for children, subject to the ability of their parents to pay, and make awards more equitable by ensuring more consistent treatment of persons in similar circumstances. The guidelines are based on the income shares model developed by the National Center for State Courts and are based on the idea that children should continue to receive the same level of support that would have been available to them had the family unit remained intact.

Split Custody

When each parent has been granted primary physical custody of one or more children, the child support is to be computed in the following manner:

  • Compute the child support the father would owe to the mother for the children in her custody as if they were the only children of the two parties; then
  • Compute the child support the mother would owe to the father for the children in his custody as if they were the only children of the two parties; then
  • Subtract the lesser child-support obligation from the greater.

The parent who owes more should be ordered to pay the difference in child support to the other parent—unless the judge determines based on other child support rules, that he or she should deviate from the guidelines.

The Alabama child support guidelines don’t specifically address the problem of establishing a support order in joint legal custody situations. In that instance, the court may deviate from the guidelines in appropriate situations—particularly if physical custody is jointly shared by the parents. The rules say that shared physical custody, regardless of “legal custodial arrangements,” is an appropriate reason for deviation. Shared physical custody is the situation where the physical placement is shared by the parents in such a way as to assure the child has frequent and continuing contact and time with both parents.

Determination of Recommended Child-Support Obligation

The basic child-support obligation is determined by using the schedule of basic child-support obligations. The category entitled “combined adjusted gross income” in the schedule means the combined monthly adjusted gross incomes of both parents.

“Adjusted gross income” means gross income less preexisting child-support obligations, less preexisting periodic alimony actually paid by a parent to a former spouse.

For combined adjusted gross-income amounts falling between amounts shown in the schedule, the lower value will be used if the combined adjusted gross income falls less than halfway between the amounts shown in the schedule. Where the combined adjusted gross income falls halfway or more than halfway between two amounts, the higher value is to be used. The category entitled “number of children due support” in the schedule means children for whom the parents share joint legal responsibility and for whom child support is being sought. The court may use its discretion in determining child support in circumstances where combined adjusted gross income is below the lowermost levels or exceeds the uppermost levels of the schedule.

Income

For purposes of the child support guidelines, Alabama courts have held that “income” means actual gross income of a parent, if the parent is employed to full capacity, or the actual gross income the parent has the ability to earn if the parent is unemployed or underemployed.

“Gross income” includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment-insurance benefits, disability-insurance benefits, gifts, prizes, and preexisting periodic alimony. It doesn’t include child support received for other children or benefits received from means-tested public-assistance programs, including, but not limited to, Temporary Assistance for Needy Families, Supplemental Security Income, food stamps, and general assistance.

If a spouse is paying child support or alimony from a prior relationship, this amount will be deducted from his or her income before the court determines the amount of child support owed to the custodial parent. This rule allows, in the court’s determination of gross income, a deduction to a parent for a prior child-support obligation if that obligation is pursuant to “an order for support, as well as allowing a deduction to parents in instances where there has been a settlement in place of an order.

Alabama Rule of Judicial Administration Rule 32(B)(6) states that “If a parent is legally responsible for and is actually providing support for other children, but not pursuant to an order of support, a deduction for an ‘imputed preexisting child support obligation’ may be made from that parent’s gross income.”

However, the courts have concluded that the term “child-support obligation,” as it is used in Rule 32(B)(6), doesn’t include a child-support arrearage.

Self-Employment Income

For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce this income, as allowed by the IRS.

“Ordinary and necessary expenses” does not include amounts allowable by the IRS for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business will be counted as income if they are significant and reduce personal-living expenses.

Unemployment and Underemployment

If the court finds that either parent is voluntarily unemployed or underemployed, it will make an estimate of the income that parent would otherwise have. The judge will impute or assign to that parent that amount of income, and will calculate the child support based on that parent’s imputed income. When the judge determines the amount of income to be imputed to a parent who’s unemployed or underemployed, he or she will consider the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, as well as the prevailing job opportunities and earning levels in the community.

In addition, the judge may take into account the presence of a young or physically or mentally disabled child who requires the parent to stay in the home, resulting in his or her inability to work outside of the home. See the section on Disabled Adult Child below.

Health Insurance and Child-Care Costs

Health insurance and required child care costs are also part of the child support obligation. The actual cost of a premium to provide health-insurance benefits for the children is to be added to the “basic child-support obligation” and to be divided between the parents in proportion to their adjusted gross income in the percentages indicated on the Child-Support Guidelines.

Child-care costs, incurred on behalf of the children because of employment or job search of either parent, are to be added to the “basic child-support obligation.” Child-care costs can’t exceed the amount required to provide care from a licensed source for the children, based on a schedule of guidelines developed by the Alabama Department of Human Resources.

Affidavits

In the divorce proceeding, both spouses must complete income affidavits, which state the parent’s place of employment, gross income before taxes, the amount paid for necessary child care and health care coverage, and the amount paid or received from any previous family support obligations.

The appropriate types of documentation of current earnings includes pay stubs, employer statements, and receipts and expenses if the spouse is self-employed. The documentation of current earnings should also be supplemented with copies of the most recent tax return to provide verification of earnings over a longer period or with other documentation as the court requires.

Alabama’s Schedule for Basic Child Support Obligations is applied to the calculations to determine the child support amount that is to be awarded.

 

Other Reasons for Deviation

Alabama Judicial Administrative Rule 32(C)(4) allows the court to make additional awards, in excess of basic child support, for extraordinary medical, dental, and educational expenses if:

  • the parties have in writing agreed to these awards; or
  • the court, upon reviewing the evidence, determines that these awards are in the best interest of the children and states its reasons for making these additional awards

For example, this may come into play when both spouses earn more than the maximum amount stated on Alabama’s Schedule of Basic Child Support Obligations. In addition, the judge may look at the lifestyle to which the child(ren) has become accustomed, as well as their current standard of education.

Alabama rules permit a trial court to deviate from the guidelines to promote the best interest of the child. A court’s reasons for deviating from the guidelines may include, but are not limited to, any of the following:

  1. Shared physical custody or visitation rights that constitutes substantial periods of physical custody or care of children by the obligor parent in excess of those customarily approved or ordered by the court;
  2. Extraordinary costs of transportation for purposes of visitation that are paid for substantially by one parent;
  3. Expenses of college education incurred prior to a child’s reaching the age of 19;
  4. Assets of, or unearned income received by or on behalf of, a child or children; and
  5. Other factors or circumstances that the judge finds contribute to the best interest of the child(ren) for whom child support is being decided.

However, if one or more of the reasons stated above exists, that doesn’t mean that the court is required to deviate from the guidelines. However, the reason or reasons may be considered by the judge in deciding whether to deviate from the Schedule of Basic Child Support Obligations. Furthermore, the court may deviate from the guidelines even if no reason spelled out in this section exists, if evidence of other reasons justifying a deviation is presented.

Finalizing the Child Support Agreement

All child support agreements—whether formed in informal negotiations or with the assistance of counsel— must be submitted to the court for approval. The judge will review the agreement to ensure that there has been no undue influence on any party to sign the agreement and that the agreement is fair. Once the agreement is approved by the judge, it will be incorporated into the divorce decree, if the parents are married. The significance of this is that once the child support agreement is part of the divorce decree, a parent who violates the agreement is subject the court’s authority to enforce the payment of the child support terms. The parent who violates the order is subject to penalties, which are discussed below in the section entitled, Enforcing Support.

Modification of Child Support

After a child support order or agreement is in place and approved by a judge, that amount may be increased or decreased in some situations over time. Only child support installments accruing after the filing of the petition for modification may be changed. Thus, if a parent’s earning ability or a child’s financial needs have changed, it could possibly be sufficient reason to have a modification. After child support is ordered by the judge, that order can be changed or modified when any of the following things happen:

  • One or both of the parents’ financial situation has changed;
  • The judge’s child support order is no longer adequate to meet the child’s needs;
  • There isn’t any provision for medical support; or
  • The situation of either parent or the child have changed substantially.

A party seeking a modification of child support must plead and prove that a substantial and continuing material change in circumstances has occurred since the last order of child support.

Alabama Court Rules state that there’s a rebuttable presumption that child support should be modified when the difference between the existing child-support award and the amount determined by application of these guidelines varies more than 10%, unless the variation is due to the fact that the existing child-support award resulted from a rebuttal of the guidelines and there’s been no change in the circumstances that resulted in the rebuttal of the guidelines.

When working with the state Child Support Agency, parents must note that they will only review orders once every 36 months, unless there’s been a significant change of circumstances. Either one of the parents is able to request that the state review the support order to see if it should be changed. Child support in Alabama typically continues until a minor child reaches age 19 or a pre-established support obligation, like educational expenses, ends. However, Alabama Code § 30-3-1 does not authorize a trial court in a divorce action to require a noncustodial parent to pay educational support for a child who is over the age of 19.

Again, Alabama courts generally will consider these factors when determining the appropriate amount of child support:

  • The number of children in the family;
  • The monthly incomes of the parents;
  • Any daycare expenses;
  • The cost of family health insurance costs; and
  • Time spent with the children (e.g., custody and visitation).

In considering a modification of child support payments, the Alabama Supreme Court has held that a trial court should consider all changes in circumstances since the last decree awarding or actually modifying child support—not just those changes taking place since the last decree that considered the question of modification.

Alabama court rules also state that a trial court has the discretion and authority to modify a child-support obligation even when there’s not a 10% variation between the current obligation and the guidelines…provided that the petitioner has proven a material change in circumstances that is substantial and continuing. In the same fashion, the judge has the discretion to deny a modification even when there’s a 10%—based on a finding that the application of the guidelines in that case would be “manifestly unjust or inequitable.” 

Paternity

Basic family law in the United States stipulates that if a married couple have a child, the legal presumption is that the husband in that family is the father. However, when a child is born outside of marriage, there’s no legal presumption of paternity.

Failing to establish paternity means that an unwed father has no legal standing or right to child visitation, shared custody, or any authority to make decisions about the child’s welfare. In these situations, the judge may order the “putative” or alleged father to submit to genetic or DNA testing if he doesn’t agree to do so on his own. Once paternity is established, the court will issue a child support order in a manner like in a divorce situation.

When a child is born to unmarried parents, a mother will need to show a legal relationship between the father and child prior to any award of child support. A paternity action is a court action to have a man declared the father of a child. This action can be brought by either the mother or the father.

Once paternity is established, the child is eligible to receive medical support, Social Security benefits, inheritance rights, and other forms of support. In many instances, the alleged father will acknowledge paternity and sign a document that attests to that fact. When this is completed pursuant to the Alabama Hospital Paternity Acknowledgement Program, the affidavit must be on a form approved by court rules and include the Social Security number and current address of each parent, a listing of the rights and responsibilities of acknowledging paternity, including the duty to financially support the child, and instruction for filing the affidavit with the Office of Vital Statistics.

If the father does not admit paternity, a court action can be started, and when the case goes to trial, the mother may be asked to testify about the father. The mother, the child, and the alleged father may also be required to undergo genetic tests in order to assist the court in determining the paternity issue. DNA tests include the SWAB Test and DNA Genetic Identity.

A court case for paternity may be initiated at any time prior to the child’s 19th birthday, however, retroactive or “back” support can only be ordered for the two years before the court action begins.

In Alabama, pursuant to the Alabama Uniform Parentage Act, a presumption of paternity arises in favor of the mother’s husband when:

  • a child is born during the marriage;
  • a child is conceived during the marriage;
  • a child is conceived or born during an invalid marriage; or
  • a child is born before a valid or invalid marriage and the husband took some voluntary step to establish his paternity, such as acknowledging paternity, consenting to being named on the child’s birth certificate, or being obligated to pay child support.

Paternity actions are also known as establishment hearings, filiation hearings, or parentage actions.

In Alabama, there is a presumption of paternity outside of marriage:

  • when a man receives the child into his home and openly holds the child out as his natural child or otherwise openly holds the child out as his natural child and establishes a significant parental relationship by providing emotional and financial support; or
  • when a man legitimated the child pursuant to Ala. Code § 26-11-1 et seq.
Revocation of Claim to Paternity

A person who has filed a notice of intent to claim paternity may at any time revoke that notice. Upon receipt of the notification by the registry, the revoked notice of intent to claim paternity is considered null and void.

Enforcing Support

Once the judge has ordered child support, the non-custodial parent is required to send support payments to the custodial parent for the child. However, this sometimes doesn’t happen the way it should. Families can experience late payments, payments that are too small, or the checks may not come at all. This typically means that the non-custodial who is required to pay support isn’t following the court order. As a result, the children suffer.

Experienced child support attorneys like those at Charlotte Christian Law in in Huntsville, Birmingham, and Fyffe, Alabama say that income withholding has proven to be the most effective way to enforce child support.

Ala. Code § 13A-13-4 states that someone commits the crime of nonsupport if he or she intentionally fails to provide support to a minor child whom he or she is legally obligated to support, including a child born out of wedlock whose paternity is admitted or established in a civil suit. There are many ways to collect support, including the following:

Income Withholding. Child support payments can be taken directly out of the non-custodial parent’s paychecks, unemployment benefits, workers’ compensation awards, and retirement checks. The state law requires that all child support orders have withholding orders so that this type of action can be initiated. When income withholding orders aren’t applied immediately, withholding can be started if the parent’s payments fall 30 days behind or equal the total of one month’s obligation.

Civil Contempt. If the non-custodial parent doesn’t comply with a child support court order, he or she may be found in contempt of the order. The non-custodial parent can be held in contempt if he or she is 30 days late in support payments or does not comply with the medical support order. The parent must receive the court papers in accordance with Alabama law in order to be properly served. If the parent is found in contempt, it means he or she did not obey the support order on purpose, and jail time is a possibility.

Failure to Appear. The judge has the ability to order the arrest of the non-custodial who receives proper notice of a court hearing if he or she doesn’t attend.

Income Tax Refunds. If the non-custodial owes back support, the state agency can report the parent to the IRS and the Alabama State Department of Revenue. Those government agencies can then deduct the support payment from the parent’s federal or state tax refund to pay to the family (or to the state). However, the non-custodial parent can contest this action.

Credit Bureau Reporting. If the non-custodial parent falls behind in support payments by a certain amount, he or she can be reported to the consumer reporting agencies (otherwise known as credit bureaus). Once reported, the non-custodial will find it difficult trying to borrow funds to purchase a home or an auto. Prior to the non-custodial parent’s name being sent to a credit bureau, he or she is notified and given an opportunity to contest the action.

Liens. In the event that the non-custodial parent owes a certain amount in back child support, and the parent’s total arrearages and interest equals at least three months’ current support obligation, a lien can be placed on real or personal property. A lien is a legal hold (encumbrance) on property, and that debt must be paid before the property can be sold or refinanced. Typically, an attorney can collect on the lien when the non-custodial wants to sell or refinance, or when another creditor is trying to foreclose. After a lien has been executed, the non-custodial must be notified and given the opportunity to pay or contest the action.

Financial Institution Data Match (FIDM). If a noncustodial parent owes back child support of a certain amount, he or she is subject to a data match system that occurs between the Child Support Enforcement Program and financial institutions. This identifies financial accounts that belong to noncustodial parents who are delinquent in their child support obligations, and when ID’d, these accounts are subject to liens and levies issued by the Child Support Enforcement Program.

Other Enforcement Remedies. Garnishments, federal prosecution, criminal non-support, and IRS full collection are other means of enforcing a child support order. The State can also revoke personal and professional licenses and deny the non-custodial parent’s ability to renew or obtain a passport if the case meets certain criteria.

Interest – Child support judgments entered after September 1, 2011 accrue interest at the rate of 7.5% per year.

A provision for medical support must be included in new and modified orders for child support. Medical support is also included in all voluntary support agreements.

In order to strengthen enforcement, the State has developed the Alabama Location, Enforcement, and Collection System (ALECS). This system tracks payments and amounts owed, links government agencies, and speeds up the process. The system automatically sends notices to parents and flags problem cases for child support workers.

Past Due Payments

Payments that become due before the filing of a petition to modify are not modifiable; and a trial court has no power to forgive an accrued arrearage. A court having jurisdiction over proceedings to enforce an earlier child-support judgment doesn’t have authority to “waive” the imposition of statutorily-imposed post-judgment interest on these child-support judgments.

Alabama law holds that it is the child who possesses the inherent and fundamental right to support from the parent, so the court will strongly enforce the payments for child support. A parent may face civil or criminal penalties for a failure to discharge the responsibility to support his or her child. The courts in Alabama construe Rule 32(B)(6) in favor of protecting the welfare of the children involved in child-support cases.

Alabama courts have held that a custodial parent cannot agree to forgive the amount due under a child support arrearage, and the parent cannot waive child support due under a court order.

Parents Who Live in Different States

When the parents reside in different states, a child support case can be initiated where one of the parents lives. The Uniform Interstate Family Support Act is a federal law that instructs the courts on how to make and enforce child support obligations when the parents don’t live in the same county or state. Federal law mandates that states to cooperate with each other to establish and enforce support orders.

If the noncustodial parent isn’t living in Alabama, the State may ask the other State or country where the non-custodial parent resides for assistance in obtaining a child support order. If there is already a support order issued by Alabama or another state, support can be pursued support based on that order.

If there isn’t an order in the other state, the other State or country can be petitioned to issue a support order based on its own guidelines. In addition, paternity can be established across state lines.

Disabled Adult Child

In order to require support for a disabled adult child, the court must find a causal relationship between the adult child’s inability to support himself and that child’s mental or physical disability.

In addition to the court’s expanded interpretation of the term “children” in the Alabama child support statute (§ 30-3-3), state courts recognize a duty imposed on parents to support their children who continue to be disabled beyond their minority.

When To Call A Family Attorney For Help To Collect Support
  • Have your circumstances changed? Do you need a support modification?
  • Are you having trouble paying support? Or, paying too much support?
  • Do you need help with support enforcement? Or, are you receiving too little?
  • Is your child support case out-of-state?
  • Are you in the military paying support for your child or children? Or, the ex-spouse of a service member?
  • Does your support order need to be terminated?

Need additional Support information? Be sure to check out our Child Support Articles.

Contact us

Contact us

With Charlotte Christian Law, you’ll have our unwavering support from the beginning of your divorce and child support action to the finish of the legal process. We will answer all of your questions, candidly and honestly assess your objectives, and be available to address any of your concerns.

We have offices in Huntsville, Birmingham, and Fyffe, Alabama and welcome the opportunity to speak with you and help with child support issues of with any other family law issue.

For an in-person or phone consultation with a family lawyer, please call us at (256) 859-7277. 

Alabama Family Law Office Locations

We are conveniently located in Huntsville, Alabama and welcome the opportunity to speak with you and help in any way that we can. For an in-person or phone consultation with a family lawyer, please call us at 256-859-7277.  Our team of dedicated professionals are able to assist you with any questions that you may have about child support, enforcement, out of state cases, and more. Give us a call and see the difference that we can make in your life.