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CHILD SUPPORT IN MARYLAND
Introduction to Child Support
An unfortunate fact of economic life is that a family cannot live as
cheaply divided as it can together. Thus, after a divorce, the living standard of the
entire family is often lowered and the court often finds itself in the unenviable position
of having to divide a scarcity of resources. Then too, there is the problem of changing
the child support order to meet changing needs of children and enforcing court orders
against fathers and mothers who either refuse to make court ordered child support payments
or who cannot do so due to circumstances beyond their control. These problems, when added
to the issue of custody, visitation and the division of property in a divorce , keep the
family law courts of the country packed to capacity.
Both parents have a legal duty to support their child according to
their ability to do so. Since 1990, Maryland has had child support guidelines in effect,
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
application of the guidelines would be unjust and inappropriate in a particular case. This
section discusses the issue of child support when viewed in the context of a divorce or
paternity action. Just as courts must often make the crucial decision as to child custody
and visitation, so too must it often determine how much child support the noncustodial
parent will be ordered to pay. [fn.1] This section will
describe the considerations that a court will take into account when deciding the issue of
child support, whether in a divorce or a paternity case. [fn.2]
It will also describe the methods by which child support orders are enforced by courts [fn.3] and how to modify an order for support. [fn.4] The Child Support Calculator can be used to calculate
your child support obligation.
Establishing Child Support Payments
During a marriage or committed relationship, such issues are rarely
a concern for the court. But when parents divorce or cease to live together with their
children as a family, the courts are usually required to establish by decree the amount of
child support a noncustodial parent must pay. Like the issue of custody, this can be
reached by agreement or by fighting it out in front of a judge.[fn.5]
Child support payments, like alimony, may be incorporated into the divorce judgment or
may be provided for in a marital separation agreement. You can avoid making child support
a contested issue, and the legal expense of litigating this issue before a Master or a
Judge by both parents agreeing to the appropriate amount of child support and making this
agreement part of a marital separation agreement.
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The Nature of the Child Support Order
There are several parts to most child support orders. First and
foremost, the paying parent will almost always be ordered to make a monthly money payment
to the custodial parent. [fn.6] The order will typically read,
in part, as follows:
Father (name) is ordered to pay directly to mother (name) as and
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.
Notice the following about this portion of the child support
order:
It Requires a Direct Monetary 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. Because of this, some refuse
to make the payments because they see it as a form of alimony. However, this is not true. [fn.7] The direct payments are to be used to pay for the vital
needs of the children, such as rent, food, and clothes.
The Court Retains Jurisdiction to Change the Order.
A child support order is not set in concrete but is subject to
change should future conditions warrant. Thus, either parent may petition the court to
raise or lower support should conditions warrant (see below).[fn.8]
Payments Automatically Terminate When the Child Reaches
Majority, Dies or Becomes Emancipated.[fn.9]
The purpose of this language is to provide for an automatic end to
the support obligation when the child reaches majority or dies. However, the issue of
emancipation is often in dispute and may require a court determination.
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 nonpayor's property by writ of execution. [fn.10]
The child support decree is not limited to an order of direct money
payments to the custodial parent. Other areas of providing for the children's needs are
also usually addressed. The following language is an example of a typical child support
order:
As and for additional child support, father (name) is ordered to
maintain his children as beneficiaries on his health and life insurance policies available
through his employment. Father is further ordered to pay for one-half of all uninsured
medical, dental and ophthalmologic services provided for the children. [fn11]
As and for additional child support, father 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 mother. [fn.12]
As and for additional child support, father shall pay the
round-trip plane and other reasonable costs of transporting the children for visitation
with father, as provided in the visitation provisions of this order. However, during
visits of two weeks or more, the father's child support payments to mother shall be
reduced by $50 per month per child. [fn.13]
These clauses illustrate the flexible nature of child support orders
and the wide latitude a court has in creating a support arrangement it deems in the best
interests of the children. (The court will try to maintain the lifestyle the children
enjoyed before the divorce if the parents' finances permit.)
[fn14] Thus, 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, activities and upbringing. The amount of support can also be reduced should the
noncustodial parent have physical custody of the children for at least 35% of the time.[fn.15]
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How the Court Determines the Amount of Child
Support
Generally, child support payments are for the ordinary expenses of
food, shelter, clothing, education and medication needs for the children only. In
determining an award of child support, a court will look at all relevant facts upon the
following issues:
The Needs of the Children.
For example, a sickly or developmentally disabled child will often
require a higher level of support than a healthy child. [fn.16]
The Age of the Children.
Infants and younger children often cost less to support than older
children.[fn.17]
The Ability of the Noncustodial Parent to Pay.
The court is limited in awarding child support by the ability of a
parent to pay based on income from all sources, often including a new spouse's earnings. [fn.18]
The Earning Capacity of the Custodial Parent.
Both parents have the duty to support their children, not just the
paying parent. Thus, the earnings or earning capacity of the custodial parent which are
available to provide support for the children, and perhaps that of their new spouse, will
also be considered when determining child support levels.
[fn.19]
The 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 noncustodial 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. [fn.20]
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.(See financial forms). Each parent will be required to
fully disclose their income (from all sources frequently including money earned by a new
spouse or live-in-lover), 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 and thus it is in the best interests
of the children that the declarations be filled out completely and honestly.
[fn.21]
Child support hearings are often adversarial. That means that when
the parents cannot agree on the support order, (sometimes after compelling mediation), the
court, through a Master's hearing, 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.
In 1990, the Maryland General Assembly passed a law making it
mandatory for the courts to use Child Support guidelines in all cases in which child
support is sought.[fn.22] Although use of the guidelines is
mandatory and there is a presumption that the guidelines amount is the correct amount to
be awarded, the presumption is rebuttable.
The reason for the implementation of the Guidelines is that the
General Assembly has decided that "the law and policy of this State is that the
child's best interest is of paramount importance and cannot be altered by the parties. A
parent has a legal obligation to provide support for the child [in proportion to their
gross earnings]." [fn..23]
The mathematical computation to determine the Guideline amount is
fairly simple. The Legislature provided a form which must be followed[fn.24]:
There is a separate form for situations where the parents share
physical custody of the children. [fn.25]
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Other Child Support Issues:
There are other issues that parents need to understand regarding
child support.:
Only the Proper Court Has the Power to Order
Child Support.
A court that does not have proper jurisdiction (power) does
not have the legal authority to order child support. In order for a court to have
jurisdiction to compel a parent to pay child support, it must have personal
jurisdiction over the parent. Personal jurisdiction means that the parent from whom
support is sought must have sufficient contacts with the state in which the suit is
brought. [fn.26]
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A State that Entered a Valid Support Order
Continues to Have the Power to Modify Child Support.
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.
Parents Can Agree On the Level of Support.
Parties frequently settle divorce or paternity cases between
themselves without going to trial. Parties may include in their settlement agreement an
amount of child support to be paid by the non-custodial parent to the custodial parent.
However, even when the parties agree to an amount of child support the trial court is
required under the guidelines to determine the guideline amount, compare it with the
amount of support agreed upon by the parties, and not make an award less than the
guideline amount unless convinced that award of less is in the best interest of the child.[fn.27] There can be no variance of the guideline amount if the
court does not give its reasoning on the record in accord with the requirements of the
law.
Hugh and Lucy divorced. In a marital settlement agreement, they
agreed that Lucy would have custody of the children. However, Hugh would only agree to pay
$50 per month in child support, despite the fact he earned $2000 a month. Rather than
fight Hugh, who had threatened a custody fight if she would not accept the deal, Lucy
agreed to the low support level. When Lucy and Hugh brought their "agreement"
before the Master, the Master refused it because the support level was too low.
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Courts Can Order Payment of College Expenses
Even Though the Child Has Reached Majority.
At one time, majority was reached at age 21. When it was reduced by
law to age 18, a new problem was presented: Could the court order a parent to pay for his
or her children's college expenses as child support, despite the fact that they would be
over 18 when the payments were made? In most states, that question has been answered in
the affirmative - if the parent has sufficient resources - although the courts are not
required to make such orders. [fn.28]
Child Support Is Not Tax Deductible
Unlike alimony , payments of child support cannot be deducted from
the payer's income taxes. However, you pay more than 50% of the actual costs of child
support, you can claim the child as a dependent to save money on taxes. [fn.29] Parents often agree on the issue of the dependents
deduction so that both don't make the claim which could trigger an IRS audit.
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Modifying Child Support
The court that makes the original child support award is said to
have continuing jurisdiction to modify the order as conditions warrant. That being
so, either parent may request the court to change the order throughout the duration of the
child's minority. Modifications will not happen automatically. One of the parents must
request the change by a formal motion to the court.
Child support orders cannot be changed on caprice or because a court
thinks that "it is time." It must be based on evidence proving that sufficient
grounds exist to make the change. This usually requires a showing of changed
circumstances from the facts as they existed at the time that the last order was
entered. (In the many years a child support order remains effective, the parent's
circumstances may change many times and thus so may the child support order.) [fn.30] In Maryland, changed circumstances, means that a
party's income has changed (either gone up or down) by at least 25%.
Many different scenarios can create changed circumstances. For
example, if the paying parent has had a large increase in income, the court can order the
child support increased. Or, if the child's needs grow, such as if the child becomes ill
or disabled, the amount of support can be ordered raised. Sometimes the mere passage of
time creates the changed circumstances. For example, as a child grows older, it becomes
more expensive to buy clothes, food and other necessities. These increased expenses can be
enough to justify a raise in the support order.
Support can also be reduced upon a proper showing. For example, if
the custodial parent inherits money, gets a large raise or otherwise has an increased
ability to support the children, support payments may be reduced. Or, if the paying parent
loses his or her job, the court can be asked to reduce support during the period of
unemployment.
A mistake many parents make is to reach informal oral agreements
modifying child support. This often provides the seed for future discord. For example, the
following scenario is very common:
Peter paid his former wife Alice $400 a month to support their
son. When Peter was laid off, he called Alice and said, "I just got laid off. I can't
afford to pay $400 right now." Alice responded, "Okay. Pay $100 for
now."
Ten months later, Peter was rehired and raised his support
payments back to $400. During his layoff, Peter had made 10 payments of $100. Alice called
and told Peter she expected him to pay the $3000 he had not paid during the layoff. Peter
replied that he did not owe the money because they had agreed to the child support
reduction during his layoff. Alice disagreed. She claimed that she had not given up the
right to $400 a month but had merely permitted Peter to defer full payment until he was
rehired.
When Peter refused to pay, Alice took him to court. The judge
ruled that the evidence did not support Peter's claim that he was excused from $300 per
month of his support during his layoff and he was ordered to pay the $3000 to Alice at the
rate of $100 a month, in addition to the usual payments of monthly support.
The problem with oral agreements is that they are often vaguely
worded and the memories or understanding of the parties may often differ. Thus, any
agreement by parents to modify child support should be put in writing so that there are no
misunderstandings later on. It is also a good idea to have a judge sign a court order
based on the agreement. (Your local library will have form books illustrating the proper
forms of a stipulation and court order to modify child support.)
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Enforcing Child Support
A major headache for custodial parents, children and society is
created when a parent refuses to pay his or her court ordered child support. This is a
serious problem of national dimensions. A recent study found that less than half the
parents awarded child support receive payment in full. In 1989 alone, $4 billion
dollars that was owed in child support was not paid. This failure on the part of
noncustodial parents - usually but not always fathers - is a major cause of poverty in
children. This not only affects the families but has an indirect impact on the society who
must finance poverty programs to assist those in need.
In Maryland, each county has established a child support enforcement
agency that can assist you in collecting child support from your spouse. This agency has
responsibility for collecting child support for families receiving public assistance, and
also, upon application for non-public assistance families. Applicants for public
assistance in Maryland must assign child support rights to the state and must help locate
the parent absent from the home. Failure to cooperate may result in the denial of public
assistance.
Services are available to Non-public assistance parents by the
payment of a non-refundable $20 fee. If you are representing yourself, and you are not on
public assistance, applying to the child support agency in your county for assistance is
an excellent method of obtaining legal representation at minimal cost (payment of $20.00
fee).
The custodial parent has many tools available to enforce child
support orders, all of which should be considered if payments are not being made:
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Use the Government's Parent Locator Service
Nonpaying parents often hide from the custodial parent in order to
avoid their child support obligation, often going so far as to move out of state to avoid
their responsibilities. Such abandonments have caused many parents to go on welfare.
In order to remedy this problem, the federal government has created
the Parent Locator Service, which allows the resources of the federal government
including the Social Security Administration and the Internal Revenue Service, to be used
to locate a nonpaying parent's employer. Once found, the custodial parent or the state can
enforce the child support order and collect unpaid support. The law also permits the IRS
to pay child support arrears from tax refunds the nonpaying parent may be owed by the
government. (The law also requires the states to establish a Parent Locator Services.) For
more information on the Parent Locator Service, contact the local office of the
Department of Health and Human Services.
Obtain a Wage Assignment
Many states allow the court to order an employer to make direct
payments to the custodial parent from the wages of the supporting parent. This procedure
is known as a wage assignment. The wage assignment can be issued upon proper application
by the court and served on the paying parent's employer. Once implemented, the employer
will deduct child support like any other deduction from the paying parent's paycheck and
send the money directly to the custodial parent. This is a very valuable tool - if the
nonpaying parent holds a steady job. [fn.31]
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Request a Writ of Execution
Notwithstanding the methods of securing a wage lien offered in the
Maryland Rules, the General Assembly has passed laws to assist recipients of support to
collect the funds due them from spouses ordered to pay child support. See [fn. 32.]
Bring a Civil Contempt of Court Action.
If a person willfully disobeys a lawful child support order, he or
she can be jailed for contempt of court. The civil contempt action is brought by the
custodial parent. The court clerk will have the proper forms. After that, the nonpaying
parent will have to be served with process since he or she has the Constitutional right to
appear at the hearing and present a defense. If the nonpaying parent is served with
process and does not appear, the trial court will order a bench warrant issued for his or
her arrest.
If the court finds beyond a reasonable doubt that the parent has
willfully failed to pay pursuant to a valid child support order, the court can order the
nonpaying parent jailed. (A parent who can show that they did not have the ability to pay
will not be found in contempt of court, even though he or she will continue to owe the
money.)
Often, the mere threat of jail is sufficient to pry open the
recalcitrant parent's pocketbook. However, in severe cases, parents will be jailed and
often the jail sentence will be open-ended, terminating only when the proper payment has
been made. [fn.33]
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Seek a Criminal Prosecution
All states also have criminal statutes on the books to punish
parents who refuse to pay their child support. If the custodial parent complains to the
district attorney's office, it may seek an indictment against the nonpaying parent in
criminal court. If the defendant is found guilty, he or she may be jailed. Or, the guilty
parent may be put on probation and allowed to remain free if he or she pays all back child
support and makes all future payments in a timely manner. [fn.34]
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§12-204 Determination of child
support obligation: Family Law Article
(a) Schedule to be used; division among parents;
maintenance and alimony awards.-(1) The basic child support obligation shall be
determined in accordance with the schedule of basic child support obligations in
subsection (e) of this section. The basic child support obligation shall be divided
between the parents in proportion to their adjusted actual incomes.
(2) (i) If one or both parents have made a request for alimony or maintenance in the
proceeding in which a child support award is sought, the court shall decide the issue and
amount of alimony or maintenance before determining the child support obligation under
these guidelines.
(ii) If the court awards alimony or maintenance, the amount of alimony or maintenance
shall be considered actual income for the recipient of the alimony or maintnance and shall
be subtracted from the income of the payor or the alimony or maintenance under § 12-201
(d) (2) of this subtitle before the court determines the amount of a child support award.
(b) Voluntarily impovrished parent.- (1) Except as provided in paragraph (2) of
this subsection, if a parent is volunarily impoverished, child support may be calculated
based on a determination of potential income.
(2) A determination of potential income may not be made for a parent who:
(i) is unable to work because of a physical or mental disability; or
(ii) is caring for a child under the age of 2 years for whom the parents are jointly and
severally responsible.
(c) Income between amount in schedule.-If a combined adjusted actual income amount
falls between amounts shown in the schedule, the basic child support amount shall be
extrapolated to the next higher amount.
(d) Income above schedule levels.- If the combined adjusted actual income exceeds the
highest level specified in the schedule in subsection (e) of this section, the court may
use its discretion in setting the amount of child support.
(e) Basic child support obligation.-Schedule of basic child support
obligations:
Endnotes
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