Regardless of how much latitude judges are given, the guidelines in effect in most states specify factors which must be considered in determining who pays child support, and how much. These factors usually include:
When a court sets child support, it often considers the family's pre-divorce standard of living and attempts to continue this standard for the children, if feasible. Courts, however, are aware of the difficulty of maintaining two households on the income that formerly supported one home. Maintenance of the same standard of living is therefore more of a goal than a guarantee.
Courts are supposed to strive for fairness to the parents in establishing the dollar amount of child support obligations. When setting child support, a court normally considers the relative income and assets of both spouses. If the custodial parent earns more than the noncustodial parent, child support may be a small or nominal amount.
Both fathers and mothers have the right to ask for child support. Each parent has a duty to support his or her children, and that duty doesn't discriminate between genders.
Courts typically refuse to retroactively modify a child support obligation. In fact, judges in most states are prohibited by law from retroactively modifying a child support obligation. This means if a person becomes unable to pay support, she or he may petition the court for a reduction, but even if the court reduces future payments, it should hold her or him liable for the full amount of support due and owing. For this reason, if a parent with a child support obligation starts falling behind because her or his income has decreased or her or his debts have increased, she he should immediately seek a temporary modification.
Bankruptcy does not cancel back child support.
Federal laws permit the interception of tax refunds to enforce child support orders. Other methods of enforcement include wage attachments, seizing property, suspending the business or occupational license of a payer who is behind on child support or, in some states, revoking the payer's driver's license. Your state's D.A. may employ any one of these methods in an attempt to help you collect from your ex.
If you and your ex live in different states, you may use the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) to seek payment. Under that law, the court in the state where you live contacts a court in your ex-spouse's state, which in turn requires him to pay. This procedure will be provided to you free of charge. Unfortunately, however, it often falls short of its stated goals due to the complexity of the process and the low priority frequently assigned to these cases by the courts and law enforcement officers.
In 1992, Congress passed the Child Support Recovery Act (CSRA) which makes it a federal crime for a parent to willfully refuse to make support payments to a parent who lives in another state. This statute has been challenged on constitutional grounds (beyond the authority of Congress), and its enforcement is spotty.
As a last resort, the court that has issued the child support order can hold your ex in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term. This contempt power is exercised sparingly in most states, primarily because most judges would rather keep the payer out of jail where he has a chance of earning the income necessary to pay the support.
If you and your ex can't agree on a change, you must request the court to hold a hearing in which each of you can argue the pros and cons of the proposed modification. As a general rule, the court will not modify an existing order unless the parent proposing the modification can show changed circumstances. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that frequently support temporary modification orders are:
A permanent modification may be awarded under one of the following circumstances:
My ex-spouse is late with the child support, the check bounces or I'm only
given half the amount. Can I withhold visitation?
So what are your options? First trying dealing directly with your ex-spouse. Try to find out what the problem is - has she or he lost her or his job, downsized, or other financial problem *not* directly caused by her or his behavior?
If that does work, then go back to court. Ask the court to enforce the support obligation. The court can order a wage garnishment which requires the ex-spouse's employer to deduct the child support from the paycheck. In fact, due to problems with child support, there are jurisdictions who automatically go this route unless the parties decide otherwise.
Be aware that in certain states, if you withhold visitation and your ex-spouse takes you to court, you could be compelled to pay attorney fees and other expenses associated with the court case.