Legal Overview of Child Support
Topics on this page
- What is Child Support?
- When do courts get involved?
- Elements of the Child Support Order
- Child support can be more than just a check.
- Other Responsibilities of the Parents
- Courts can order payment even though the child has reached majority.
- Child support is not tax deductible.
What is child support?
Both parents have a legal duty to support their child based on their ability to provide that support. Since 1990, Maryland has had child support guidelines, which provide a formula for calculating child support based on a proportion of each parent's gross income. These guidelines are applied unless a party can show that the application of the guidelines would be unjust and inappropriate in a particular case. This article discusses the issue of child support when viewed in the context of a divorce or paternity action. Courts often make crucial decisions about how much child support a noncustodial parent must pay.
Read the Law: Md. Code, Family Law Title 12
When do courts get involved?
During a marriage or committed relationship, child support is rarely a concern for the court. But when parents divorce or stop living together with their children as a family, the courts often become involved. The court is often required to decide how much support the non-custodial parent must pay. The custodial parent is the parent who primarily resides with the child. The non-custodial parent does not primarily reside with the child, though he or she may have liberal visitation. Like custody, the amount of support can be decided by agreement or by fighting it out in front of a judge.
You can avoid making child support a contested issue and avoid the legal expense of litigating this issue in court. To do this, both parents can agree to the appropriate amount of child support and make this agreement part of a marital separation agreement. Child support payments, like alimony, may be incorporated into the divorce judgment or included in a marital separation agreement. Note that agreements that waive child support completely may not hold up as enforceable in court if it is deemed not to be in the best interests of the child.
Read the Law: Md. Code, Family Law § 8-103
Elements of the Child Support Order
There are several parts to most child support orders. First, the paying parent will almost always be ordered to make a monthly money payment to the custodial parent. The order will typically read, in part, as follows:
"Father/mother (name) is ordered to pay directly to father/mother (name) for child support of Tom and Mary, the sum of $300 per month per child for a total of $600, payable one-half on the first and one half on the fifteenth day of each month, said payments to continue until each such child shall die, reach majority, become emancipated or until further order of court."
Important points to notice about this portion of the child support order:
- It requires a direct money payment to the custodial parent: Many paying parents resent the child support order because it is made directly to the custodial parent and not the children. Some see it as a form of alimony. Because of this, some refuse to make the payments. However, this is not true. The direct payments are to be used to pay for the vital needs of the children, such as rent, food, and clothes.
- The court keeps the authority (“retains jurisdiction”) to change the order: A child support order is not set in concrete. It can be changed if conditions change substantially in the future. Either parent may later ask the court to raise or lower support.
- The payments automatically end when the child reaches majority, dies or becomes emancipated: The purpose of this language is to automatically end the support obligation when the child reaches majority (age 18 in Maryland except in certain circumstances) or the child dies. However, the issue of emancipation is often in dispute and may require the court to decide. A determination of emancipation is fact specific but usually requires that the child has married or become self-supporting. Note: Child support will continue to be charged against you until you file in court to terminate it, resulting in the accrual of arrears.
Child support can be more than just a check.
The child support decree is not limited to an order of direct money payments to the custodial parent. The order often addresses other needs. Here is some sample language in a child support order:
- "As and for additional child support, father/mother (name) is ordered to maintain his/her children as beneficiaries on his/her health and life insurance policies available through his/her employment. Father/mother is further ordered to pay for one-half of all uninsured medical, dental and ophthalmologic services provided for the children."
- "As and for additional child support, father/mother shall pay directly to the ABC Daycare Cooperative, the full cost of afternoon after-school day care. However, should the children be enrolled in morning day care, such expenses shall be the sole responsibility of the other parent."
- "As and for additional child support, father/mother shall pay the round-trip plane and other reasonable costs of transporting the children for visitation with father/mother, as provided in the visitation provisions of this order. However, during visits of two weeks or more, the father's/mother’s child support payments to mother shall be reduced by $50 per month per child."
These examples show how flexible child support orders can be. The court has many choices in creating a support arrangement it thinks is best for the children. The court will try to maintain the lifestyle the children enjoyed before the divorce if the parents' finances permit. A parent can be ordered to maintain insurance for the benefit of children, pay medical bills, private school expenses, day care costs, transportation bills, music lessons and to pay (or partially pay) for other aspects of a child's day-to-day life. The amount of support can also be reduced if the non-custodial parent has physical custody of the children for at least 35% of the time.
Cases filed on or after October 1, 2020 - For child support cases filed on or after October 1, 2020, the threshold of overnight stays that confers shared physical custody for purposes of child support calculations is more than 25%. There is also a new formula for the calculation of child support obligations when a parent with shared physical custody keeps the child or children overnight for more than 25% but less than 30% of the year.
Read the Case: Payne v. Payne, 132 Md.App. 432 (Court of Special Appeals 2000)
Only the proper court has the power to order child support. In order for a court to have jurisdiction, or legal authority, to force a parent to pay child support, it must have personal jurisdiction over the parent. Personal jurisdiction means that the parent paying the support must have a connection with Maryland. A court that does not have proper jurisdiction does not have the legal authority to order child support.
A state that entered a support order has the power to change it. Once a valid child support order is entered, that state continues to have the power to award child support even though it no longer has contacts with the supporting parent or children.
Read the Law: Md. Code Family Law §1-201
Child Support Hearings
Parties should attend any scheduled hearing on child support. Otherwise, the court may issue an order that assigns income that is not correct. A parent can also be held in contempt of court if they miss a court hearing. The parent does not have to agree to an amount of child support at the child support office. If they do not agree with how much is being recommended at the child support office, they can request a court hearing to determine the correct amount.
Child Support is an Enforceable Order of the Court.
A child support order is as enforceable as any other court judgment or decree. Thus, a parent who is not paid child support can use each and every legal tool available to enforce the order, including wage garnishments, wage assignments, contempt of court decrees, and the seizure of the non-paying parent’s property by writ of execution.
Other Responsibilities of the Parents
The other lawful responsibilities of both parents will also be looked into in determining child support. For example, if the non-custodial parent is paying child support from a previous marriage (a rather common occurrence), the court will take that obligation into consideration. Necessities of life, such as rent and food will also be taken into account by the court. However, the court will not reduce child support payments to make it easier for the parent to pay discretionary obligations. For example, a parent cannot provide for a charity or buy an expensive car at the expense of providing for his or her own children.
To assist the court in determining the proper amount of support, both parties will be required by the court to prepare a financial declaration that is signed under penalty of perjury. Each parent will be required to fully disclose their income (from all sources, frequently including money earned by a new spouse or intimate partner), the nature and extent of their property holdings such as bank accounts, investments and real property and their financial obligations. The court will rely heavily on these documents in making the order. So, it is in the best interests of the children that the declarations are filled out completely and honestly.
Child support hearings are often adversarial. That means that when the parents cannot agree on the support order (sometimes after court ordered mediation), the court will hold a hearing to decide the issue. This is sometimes done in a chambers conference to save time. At the hearing, each spouse (or their lawyer) will have the opportunity to cross examine the other on issues relevant to the support issue and each can subpoena documents and call witnesses to support his or her position as to the amount of child support that should be paid. Child support orders can also be appealed, although the likelihood of success is very slim.
Courts can order payment even though the child has reached majority.
Maryland law requires continuation of child support payments for children who turn 18 while still enrolled in high school.
The court can order a parent to pay for his or her children's college expenses as child support if the parents have made an agreement and that agreement is incorporated into a court order.
Read the Law: Md. Code, General Provisions § 1-401
Additionally, if a child has reached the age of majority but is not able to support themselves due to mental or physical infirmity, a parent has a duty to provide the destitute adult child with food, shelter, care, and clothing.
Child support is not tax deductible.
If you make child support payments, you cannot deduct those payments from your income when you file your taxes.
If you receive child support payments, you do not include those payments as income when you file your taxes.
These tax rules are the same for both federal income tax and Maryland income tax.