Ability to Support

States have struggled to determine how to ensure the right amount is paid for child support. State laws vary, but experts agree if the right formula or process is in place to determine child support obligations it can promote reliable, sustained collections of child support. In contrast, if child support is calculated incorrectly it can increase the amount which the state is forced to try to collect in arrears and increases the chance of non-compliance.

With this in mind, child support guidelines have been created to address certain issues prior to determining child support payments. One such guideline is the non-custodial parent’s ability to pay or their ability to support their child. Ability to support can be calculated by determining the parent’s actual income or their imputed income, as determined by the court.

Ability to pay and child support in arrears

A parent’s inability to support is directly related to outstanding past due payments of child support. A study from the Urban Institute for the U.S. Department of Health and Human Services indicates that child support arrears are at an unprecedented level. Experts suggest one way to combat this issue is to ensure that all current support obligations are calculated based on the parent’s ability to pay.

Furthermore, experts argue that if a parent’s ability to pay changes there needs to be an accelerated means to modify the child support order. Critics of the current system also argue that orders based on the non-custodial parent’s imputed income (income the judge presumes they could earn) rather than their actual income can have a detrimental impact on the non-custodial parent’s ability to support or to make child support payments.

What do I do if my ability to support has changed?

If your ability to support your child has materially changed you may request a hearing or schedule a review through the child support review process. In some states, the modification for the child support order can be done if it has been three or more years since the last order and the monthly amount you are currently paying for child support “differs by either 20 percent or $100 from the amount that would be awarded according to child support guidelines.” A modification order can also be requested if you have experienced a material change in your financial circumstances since the child support order was first established.

What is a material change in my ability to support?

A material change in your ability to support can include a substantial increase or decrease in your income, a substantial change in your legal responsibility to care for your children or other additional children, a call to active duty in the military, or a change in medical or educational expenses for your children. Talk to a divorce lawyer or family lawyer attorney if you have questions about your child support order or whether it can be modified.