Child Support Facts for Low-Income Parents
A child support order is based on a child support worksheet and the Basic Child Support Schedule. The court may decide not to follow these guidelines based on certain factors including:
special needs of the child,
other court-ordered payments,
extended parenting time,
significant in-kind contributions; and
other relevant factors.
The calculation of child support is based on the combined gross income (before deductions) of both parents.
Gross Income does NOT include:
means-tested government benefits such as OWF, SSI, or veterans disability and other assistance based on low income or assets;
SNAP (food stamps);
adoption assistance or foster care maintenance.
Persons who are unemployed but able-bodied may be found to have ‘potential income.’ They may be voluntarily unemployed or underemployed (working below their skill level, by choice). The court decides the amount of potential income. It can be based on past employment, education, earning ability and other factors.
The minimum child support order is $50 per month. However, the court can order less or no payment based in certain circumstances. Such circumstances include the nonresidential parent’s medically verified physical or mental disability. It can include other appropriate circumstances.
Either parent can seek to modify a child support order. There must be a substantial change in circumstances. A ‘substantial change’ is one where more than a (10%) ten percent change in the current amount of child support. Substantial change can be that the current support order is unjust or inappropriate and not in the best interest of children.
Either a court or the Child Support Enforcement Agency (CSEA) can modify a child support order. CSEA must use the child support guidelines. Only a court can decide to make an order different from the child support guidelines, this is called a deviation.
All modifications must be made either in a court or by CSEA – the parties cannot make a “handshake” agreement to modify an order. All modifications must be in the best interest of the children.
When a party is receiving benefits
The Department of Job and Family Services (DJFS) requires anyone who receives OWF to assign their right to child support to the department. The person receiving support cannot agree to reduce or waive current child support arrears. If past due child support is collected, it is to be sent to the person owed support, usually the custodian, unless the right to support was assigned to DJFS.
For example: assume the person owed support is the custodian. DJFS claims past due support. The funds are to be paid as follows:
current support is paid to the person owed support;
any past due support from a time period after the household stopped receiving public assistance is paid to the custodian;
any past due support from a time period before the household started receiving public assistance is paid to custodian;
any past due support owed to DJFS is paid to DJFS from remaining funds, if any.
If the person paying support is receiving social security benefits based on a wage record, the minor child is entitled to dependent benefits as well. Many courts will modify the child support order to reflect a credit for the amount of the dependent benefit. No dependent benefits are available if the party is receiving SSI.
The CSEA has a number of options to enforce payment of child support. CSEA can withhold income or assets; require a cash bond if a work situation makes withholding impractical; issue a seek-work order; withhold from unemployment compensation, prisoner earnings,and other payments; and deduct from accounts at financial institutions. CSEA has additional enforcement options to collect past due support. CSEA can seek payment by doing the following: execute on a certified pay-off statement; restrict access to a financial account; refusal, non-renewal or suspension of occupational or professional license; non-renewal or suspension of driver’s license; lien on real estate or personal property; collection from federal and state income tax refunds; notify consumer reporting agencies; and publication of photo and information on a poster. A person not paying child support can also be criminally charged for nonsupport (failure to pay support for more than 26 out of 104 weeks or who owes arrears in excess of $5,000).
Driver’s license suspension
CSEA can send a notice to the Bureau of Motor Vehicles (BMV) seeking to suspend driving privileges after:
A court or CSEA makes a final determination that there is a default; or
The person paying support fails, after receiving notice, to comply with a subpoena or warrant from the court or CSEA.
The BMV cannot hold a hearing on this issue. The BMV may remove the disqualification ONLY if it receives notice from CSEA. CSEA may send a notice to BMV to remove the disqualification if the obligor makes full payment; that an appropriate withholding order has been issued and the obligor is complying; or a new or modified child support order has been issued and the obligor is complying.
CSEA or person owed support may file in court to enforce the order. Either may seek a finding of contempt of court. If so, the person paying support may have the right to an appointed lawyer because, if found in contempt, the person could go to jail. The court will decide if the person is financially unable to afford to obtain a lawyer.
This article is meant to give you general information and not to give you specific legal advice.
Prepared by Community Legal Aid Services, Inc.. Reviewed/Verified 2018