Divorces by Mac :: Child Support

In Louisiana, parents are obligated to support a minor child until the child reaches the age of 18. Minor children, those under the age of 18, are entitled to the same level of support they would have received if the two parents had stayed together. Child support may continue past the age of 18 if the child is unmarried, attending full-time secondary school, and is dependent on one or both parents. Additionally, a developmentally disabled child is entitled to ongoing child support beyond age 18, in certain circumstances, as ordered by the court.

After divorce, when one parent is awarded sole physical custody or domiciliary status, the other parent usually is required to fulfill his or her child support obligations by making payments to the custodial parent based on Louisiana State Legislature’s child support guidelines. The custodial parent is not typically required to pay child support because he or she meets his support obligation by virtue of custody itself. The non-custodial parent or non-domiciliary parent shall owe his or her total child support obligation as a money judgment of child support to the custodial or domiciliary party, minus any court-ordered direct payments made on behalf of the child for work-related net child care costs, health insurance premiums, extraordinary medical expenses or extraordinary expenses provided as adjustments to the schedule.

In cases of joint custody, the court shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time. If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy- three days, the court may order a credit to the child support obligation. In determining the amount of credit to be given, the court shall consider the following:

The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
The best interests of the child and what is equitable between the parties.

When parents have joint physical custody, child support is based on Louisiana State Legislature’s child support guidelines using worksheet B of LA R.S. 315:20. The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent.

A trial judge can deviate from the guidelines at any time; however he or she must give specific oral or written reasons why the deviation is in the child’s best interest. In addition, child support could include each parent’s respective portions of medical insurance, medical costs not covered by insurance, private school tuition and extracurricular expenses.

A court in Louisiana uses several criteria to determine an appropriate child support amount during a child support hearing. The first is income of the parties and the following are non-exclusive list of sources of income the court will consider: Salaries, Commissions, Bonuses, Worker's compensation, Disability, Pensions, Annuities, Spousal support received from an existing spousal support order. In addition to child support payments, a Louisiana court may order a parent to add a child to a parent's health insurance coverage, contribute to child care costs and/or contribute to extraordinary medical, dental, or educational expenses.

In the exceptional event that a court chooses to deviate from the child support guidelines, the following factors will be considered by the court prior to the deviation: combined gross income of the parties, debts of both parties, support obligations for other children, extraordinary medical expenses of either party or medical expenses for which either party is responsible, permanent or total disability of one of the parents which may render support impossible, any other relevant factors.

Child support amounts may be modified at a later date by the court if one party is able to show that there has been a material change in circumstances since the last setting.

About Modification of Child Support

Circumstances change. Modification of Child Support is the way a court can change the court order that says how much must be paid in child support. Whether you need the adjustment to be short-term or permanent, here's what you need to know about asking for a child support modification in court:

Generally, the courts will only consider child support modification when there is a substantial change in either the obligor's income or the child's need. If you're the parent who owes child support, you might be considered eligible for a child support modification following a job loss or change in income. On the other hand, if you're the parent who receives child support on behalf of your child, you might be eligible for a child support modification if your child's education costs or extraordinary medical expenses have gone up considerably in recent months.

The side asking the court to change the amount of child support must show a "material change in the circumstances of one of the parties between the time of the previous award and the rule for modification of the award." That means the person asking for child support to go up or go down must show that something happened to one side or the other that relates to how much should be paid to support the child or children. That person must also show that this situation happened since the last time the court made a decision on child support. Warning: you need a valid reason to seek a change in child support. Louisiana Revised Statutes 9:311 says: "If the court does not find good cause sufficient to justify an order to modify child support or the motion is dismissed prior to a hearing, it may order the mover to pay all court costs and reasonable attorney fees of the other party if the court determines the motion was frivolous." La. Rev. Stat. 9:311(E).

Temporary vs. Permanent Child Support Modification

The court may either grant a temporary or permanent modification of child support. A temporary modification is a large one-time expenditure for the needs of a child, such as the cost of braces or school uniforms. A permanent modification reflects a substantial change in the needs of a child. For example, if a child has special needs, the associated expenses would most likely increase permanently.

Child Support and Visitation: Why the Courts See Them Separately

From the court's point of view, child support and child custody are two separate issues. Child support is a parent's obligation regardless of his or her visitation schedule, parenting experience or ability. Child custody determinations, on the other hand, are based on protecting the child's best interests. The courts view the opportunity for minor children to maintain as much contact with both parents as possible post-separation or divorce with the utmost importance. Therefore, the courts may recommend generous visitation or even shared custody regardless of whether the parent required to pay child support is actually up-to-date on his or her payments. This is often a shock for parents who've been waiting in vain for child support payments that have yet to arrive.

The Impact of No-Show Visitations

Here's another common point of frustration: no-show visitations. What is a parent supposed to do? Continue to set aside the time and endure painful post-no-show tantrums and breakdowns?

When a non-custodial parent chooses to not adhere to a court-ordered visitations schedule the custodial parent can attempt to learn why he or she is not participating in scheduled visitations, and if that fails, take the other parent back to court and request a revised visitation schedule.

Visitation Refusal

The custodial parent is held to the visitation schedule order by the court; however, a parent may refuse to allow the other parent to exercise his or her visitation rights if there is a legitimate fear of imminent harm to the child such as suspected abuse or neglect of the child. Just be prepared to explain that reasoning to the judge if the opposing party files a Rule for Contempt and to accept the consequences, if any.

There can also be legal ramifications to upholding a child's insistence on visitation refusal. Anytime your child refuses to participate in a planned visit with your ex, you should talk with your child about why he or she does not want to participate in the visit and assure your child that you both love him or her. You can also try to explain the concept of visitation and why it's important to spend time with both parents or speak with your ex about allowing your child to take a break or shortening the length of the visit.

Unemployment and Child Support

Unemployment can have devastating effect on a parent's ability to continue to pay child support. It can be very difficult for both the domiciliary and non-domiciliary parents to handle. However, parents should note that a child support order remains in effect, even if a parent is unemployed. A child support order will only be altered if a parent seeks modification.

A recently unemployed parent should check with the state to find out whether he/she is eligible for unemployment benefits. If so, notify the unemployment office of the outstanding child support order. The unemployment office will deduct the child support payments from the parent's unemployment wages.

The unemployed parent should document his or her ongoing job search. When the parent secures a new job, he or she should pay their child support via check, until the payments are taken directly from their wages. In addition, he or she should prepare for a slight increase in child support payments to cover the period of unemployment.

Child Support and Incarcerated Parents

Incarcerated parents can still be held responsible by the courts for outstanding child support payments. The determination of whether a court will agree to a child support modification during a parent's incarceration is at the judge's discretion. For more information about incarcerated non-custodial parents and child support obligations, call the office for a consultation.

Disability and Child Support

In general, the obligation to provide child support does not cease when a parent becomes disabled. However, it's easy to see how the inability to work will have a negative impact on one's ability to provide reliable financial support. It is critical to file for a modification and not to just stop paying as unpaid child support will continue to accrue until a modification is requested.

If the disabled parent receives disability insurance benefits, which may automatically be provided by his or her employer, then it's reasonable to expect the disabled parent to continue to pay child support. However, it's also important to note that disability payments will very likely be less than his/her regular pay, and because the child support formula is based on parental income, the disabled parent may be able to seek a modification of child support for the duration of the disability.

Typically, if the disability is temporary, the court will usually order a temporary modification of child support. The court may decrease the child support amount for the expected duration of the disability, and if the disability continues longer than anticipated, the disabled parent may go back to court and request that the modification of child support payments continue for a longer period of time or even indefinitely.

The court will generally order a permanent modification of child support if a parent's disability is medically considered permanent. The court will base the modified child support payments on disability payments, as well as any additional income received by the disabled parent. In some cases, this may result in significantly less child support being owed and/or received.

Garnishing Disability Benefits for Child Support Payments

In some cases, disability benefits may be garnished to pay current or back child support payments. While this may seem unfair to the disabled parent, the state takes very seriously the need to maintain regular child support payments.Therefore, parents who owe child support and who receive disability benefits should be aware that the courts can dip into those benefits in the form of formally garnishing them before they even get to you. This makes it virtually impossible not to pay at least part of your regular child support payments, but it can also make it extremely difficult to get by on the remaining amount, especially if you are out of work temporarily. A lawyer can help you decide if a modification would be reasonable under the circumstances.

Disability and Child Support for Parents Receiving Supplemental Security Income (SSI)

Supplemental Security Income (SSI) is a government program for lower income, disabled individuals. If a parent’s wages are paid directly by SSI, then they cannot usually be garnished for things like taxes and debts. However, there is one clause: social security disability (SSD) benefits can be garnished for child support non-payment.

FREQUENTLY ASKED QUESTIONS ABOUT FILING FOR CHILD SUPPORT OR A MODIFICATION OF CHILD SUPPORT IN LOUISIANA

1. What is child support?

This is money to help the domiciliary parent raise the child(ren) and to pay for everyday living expenses for them.

2. Who can get child support?

A married, unmarried or divorced parent (who has physical custody of a child) can get child support. This is the parent who takes care of a child -the primary care taker or domiciliary parent. As long as the other parent is the biological parent of the child, you can get child support from him or her. Nonparents such as grandparents may get child support from the biological parents if they have legal custody of a child.

3. How do I get child support?

You can always get child support if the other parent agrees to pay you money to help raise a child, however should that not be the case, a domiciliary parent or custodian may also get child support from that parent by filing papers with the court.

4. When should I try to get child support?

When you need the money to raise a child, and when you are separated or live apart from the other parent.

5. How much child support can I get?

It depends on the number of children you have with the other parent, your income, the other parent's income, and the kind of custody you have of the child (shared or not), and any other relevant factor such as child care, health insurance costs, etc. A lawyer can help ensure that you are receiving the full amount you are entitled to under the law.

6. How do I get the amount of child support changed?

You may modify the amount of child support if there is a material change of circumstances (this is when the custody arrangement is changed, yours or the other parent's income has changed, or there have been other big changes in your family life). A lawyer can help you determine if the facts of your case warrant a material change in circumstances.

7. What if the other parent is not working and does not have any income, can I still get child support?

Yes. The law requires a non-domiciliary parent pay a minimum amount of child support. That minimum amount is $100.00 a month for any number of children. But if your custody arrangement is shared or split custody, then there is no requirement. The law also requires that at least minimum wage be counted as the other parent's income absent some sort of disability not including substance abuse issues.

8. Can I get child support from the other parent if he or she is disabled or cannot work and is receiving SSI, or SSDI?

No, you will not be able to receive child support if the other parent is receiving SSI, and can prove that he cannot work. But you may be able to receive child support if the other parent is receiving SSDI (disability insurance).

9. What if the father of my child claims not to be the biological father?

Paternity will have to be established through DNA by asking the court to order or require him to take a DNA test. A lawyer can help you to establish paternity and a child support order.

10. Do I have to go to court to get a custody order before I can get the child support order?

No. At your child support hearing, you will be asked where the child lives and who is living with the child and many other questions about your and the other parent's income.

11. The father or mother of my child has not paid child support since they were ordered to do so. What do I do?

A lawyer can help you file a Rule for Contempt. The other parent will be called back into court for a contempt hearing and can be put in jail for not paying child support since the last court date.

12. My child's mother/father is not paying child support. I live in a different parish now. Do I have to go back to the court which gave me the child support order to try to get him or her to pay now?

You don't have to go back to the other court if you register the child support order or other judgment with the court in the parish where you are living in now. A lawyer can help you register the child support order with the court in the parish where you are living now. If you don't want to register the order with the new court, you have to go back to the first court.

13. Now the parent of my child does not work and does not have any money. How do I get them to pay for child support?

You take the other parent back to court by filing papers with the court with the help of an attorney. The court will order the other parent to pay child support based on the minimum wage or based on their past earning capacity or potential earning capacity (that is, what he or she used to earn or is capable of earning.

14. If I choose to remarry, will my children receive less child support?

Providing child support is the responsibility of a child’s birth parents. Therefore, the courts will not reduce an obligor’s child support payments due to a domiciliary parent’s decision to remarry.

15. My new spouse wants to legally adopt my children. If the adoption goes through, will my children continue to receive child support from my ex?

Louisiana will not approve step-parent adoptions unless the non-custodial parent has relinquished his or her parental rights - which rarely happen in cases where non-custodial parents are actively involved in their kids’ lives and are paying child support.

16. After I remarry, can I informally opt not to receive child support on behalf of my children, since our collective incomes will be sufficient?

This is not advisable, for you or for your ex. Instead, you should consider saving the money in a Section 529 Plan or Trust for your children's education if you do not need it for day-to-day expenses. In addition, your ex should continue to keep clear, accurate records of each child support payment made in the event that there is ever any question as to whether he or she has remained current on those payments.

17. My ex recently remarried, and she and her spouse have more than enough money. Why should I continue to pay child support, when they enjoy a much higher standard of living than I do?

You should continue to pay child support on time and in full because doing so is your legal obligation. If you fall behind on child support, the state can charge interest on the unpaid amount and can choose to garnish your pay, refuse to issue you a passport, intercept unemployment compensation and tax refunds, and even enforce jail time.

18. I currently pay child support. If I choose to remarry, will the courts expect me to pay more child support since our collective incomes will be greater than the income I was making when child support was established?

No. The courts do not consider providing financial support for pre-existing children to be the legal responsibility of a new spouse.

19. If I remarry and we have children together, can I request a modification of the child support that I currently pay?

Grounds for child support modification, as well as the impact of subsequent children on existing child support payments, are dependent upon a material change in circumstances. A good rule of thumb to evaluate if a material change in circumstance exists is if a strict application of the child support guidelines would result in at least a twenty-five percent change in the existing child support award. A material change in circumstance does not exist if the amount of the award was the result of the court's deviating from the guidelines and there has not been a material change in the circumstances which warranted the deviation.

Generally speaking, the courts are reluctant to reduce child support for existing children due to the birth of subsequent children. If a parent can show that overall household expenses have increased significantly, however, or that the obligor’s income has significantly decreased, the courts may consider a modification of child support.

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