Category: child support

School’s Out for Summer – What Do We Do With the Kids?

School’s Out for Summer – What Do We Do With the Kids?

The weather is warming up.  You’re firing up the grill.  Maybe you have even taken your first dip in the pool or lake.  Your timesharing schedule is humming along and everyone has fallen into a certain routine.  You know who gets the kids to school, who is going to pick them up.  Things are finally going smoothly and then all of a sudden here comes summer.  What happens now?

Keep in mind that when I am talking about “summertime,” I am talking about how the court usually defines it which is the time between school years.  This usually winds up being June and July as children seem to be staying in school later and going back to school earlier and earlier.  To avoid confusion, it is always a good idea to make sure that your timesharing schedule defines “summertime” to avoid confusion.  It sounds silly, but I have seen many people who failed to do that have to pay to litigate over that definition.

Most visitation schedules have some sort of different provision for the summertime.  Some allow equal timesharing and direct the parties to rotate the children on a weekly basis.  Some spell out a schedule of large “chunks” of time for the parents usually in 2-3 week blocks of time.  If the non-residential parent lives far away and has not been able to enjoy regular parenting time with the child during the school year, the summer is often the time when that parent gets to make up for time lost and that parent will normally have the child the majority of the summer.

With all of that said, there is nothing that requires the parents to change their normal timesharing schedule at all simply because it is summer time.  Many parents adopt an “if it isn’t broke, don’t fix it” attitude.  Even in those situations, some provision should be made to allow each parent to take the children on an uninterrupted vacation for a week or so over the summer if they want.  After all, who wants to deny a child the joys of an hours-long car ride through the sweltering heat of Kentucky in July?

Your schedule should also deal specifically with out the normal “school year” timesharing schedule will resume at the end of summer.  Many judges take the position that you schedule the “school year” schedule for the entire year and then the June/July schedule overlays and supersedes that schedule so that wherever the schedule is as of the beginning of August is where the parties resume.  Sometimes it is as simple as whichever parent had the child last in July, the other parent gets the child the first weekend in August.  Whatever you work out, just make sure it is clear in your schedule.

A question that routinely comes up is the issue of child support over the summer.  The argument goes that the child support obligor has the child more time over the summer and, therefore, the child support obligation should go down.  The courts and the law, however, do not see it that way.  Child support is intended to make sure that the child has all of the necessities as much as possible such as a home, food, utilities, etc.  Those expenses do not stop simply because the child is spending more time at the other parent’s home.

With a little bit of planning and understanding, there is no reason summertime for coparents and their children cannot be full of fun vacation memories, Clark.

Photo courtesy of pjmorse

My Teenage Son May Have Gotten a Girl Pregnant! What Do I Do?

My Teenage Son May Have Gotten a Girl Pregnant! What Do I Do?

Your son walks into the room and you can tell something is wrong. Something is weighing heavily on his mind. After a long pause that hangs in the room for what seems like an eternity, he says, “I need to talk.” He then goes on to tell you that his girlfriend has informed him that she is pregnant. What are you going to do?

Children having children is a real problem in our country. As a parent the thought of a teenager becoming a parent is scary and a very real concern. The time to talk about sex education is over, now we have to deal with this situation.

First of all, no legal obligations actually attach until the baby is actually born. That is not a personal pro-life or pro-choice stance, that is just what the law is. Nevertheless, it doesn’t hurt to open up the lines of communication to determine how the families are going to deal with the circumstances in which they find themselves.

Let us assume for the sake of this article that the mother has decided that she is going to keep the baby. Terminating the pregnancy or placing the child for adoption open up a plethora of other legal issues that we can discuss at a later time. Before doing anything, the putative father should make sure that he is, in fact, the father of this child.  This can actually be done in utero through a process called amniocentesis. Essentially, some amniotic fluid is extracted through a needle inserted into the amniotic sac. Although it is a routine procedure, it is still considered invasive and the greatest risk is the risk of miscarriage. According to the Mayo Clinic the risk of miscarriage is between 1 in 400 to 1 in 200. The much safer alternative is to perform a DNA test once the baby is born. That test involves swabbing the mouths of each parent and the child with a cotton swap.

If little Johnny turns out to be the father, then there are other issues. He is most likely going to be required to pay child support. Since the child is under four years old, the court does not have to impute any income to the mother. The court may impute full time minimum wage to your son. Imputing income means that the court, for purposes of calculating child support, will assume that the father can earn at least that much money. That would work out to over $240 per month in child support and a requirement to pay for work/school related childcare and uninsured medical expenses. If the child is receiving Medicaid, the state will go after him for reimbursement of those benefits. Since he is still a minor, they will most likely come after you.  Further, under the Temporary Assistance to Needy Families (TANF), and the mother may seek through the court to have the paternal grandparent’s income “deemed available” for child support purposes.

In addition to these issues, comes the issues of custody and timesharing with the newborn child which would be determined on a best interest standard. Since the grandparents of the new minor parents will be involved as well, it can create an extremely complex situation. A better alternative would be to have that talk with little Johnny about the birds and the bees sooner rather than later.

Photo courtesy of TipsTimesAdmin

Six Things Your Paralegal Wishes You Knew

Six Things Your Paralegal Wishes You Knew

 

Many divorce and child custody lawyers use paralegals to assist them in their practice and to provide clients with excellent service.  These paralegals are often the unsung heroes of family law litigation.  Clients sometimes do not fully appreciate the role the paralegal plays in their case.  Therefore, here are six things your paralegal wishes you knew.
  • I can save you money – Many law offices bill for their paralegal’s time at a much lower hourly rate than the attorney’s time.  While a paralegal cannot practice law, they can often explain aspects of the process of your case or answer questions without you being charged the attorney’s hourly rate.  Sometimes, they may even be more up to speed on your case than your attorney because they are dealing with the incoming pleadings and discovery as it comes into the office.
  • I can cost you money if you are not organized – Part of the paralegal’s job is to help organize information on your case and help get it ready to be presented to the court.  If you have taken the time to prepare everything requested of you, organize it in an orderly fashion and provided when it is requested, you will save the paralegal a lot of time and keep your fees lower.  Conversely, if you show up with garbage bags full of bills, old shoeboxes of receipts, and folded up, coffee-stained documents, your paralegal will have to spend additional time wading through all of that to make sense of it.  If your legal team cannot make sense of it, there is no way to make the court understand it.
  • I am easier to reach than the attorney – Admittedly, sometimes you just need to hear your attorney’s voice.  However, most divorce and child custody practitioners are in court on an almost daily basis making it difficult to return calls.  The paralegal is almost always in the office.  If they cannot answer your question immediately, they can usually get you an answer fairly quickly.
  • My time is valuable – The paralegal, like your attorney, is here to help you through your case.  Paralegals are trained in a lot of things, but they are not mental health professionals and cannot be your therapist.
  • I am often just as frustrated with the system as you are – Contrary to what a lot of people believe, good law firms try to move their clients’ cases through the system as efficiently as possible.  Coordinating multiple attorneys’ schedules along with a court docket bursting at the seams can make that task extremely difficult.  Moreover, sometimes the law or a ruling is simply not fair, but there may be very little we can do about it.  We understand your frustrations and try to empathize.  Remember, we are on your side.
  • I deserve your respect – Paralegals work very hard at often thankless tasks.  You make it more difficult when you treat them with anything less than the utmost respect and consideration.
How Do I Make Sure My Child Support Comes Out of My Ex’s Paycheck?

How Do I Make Sure My Child Support Comes Out of My Ex’s Paycheck?

When you are a single parent trying to raise a child (or children) on your own, it is vital not only that you receive support from the other parent, but that you receive that support regularly and on time.  Failure to receive timely support payments can cripple your household finances.  That is why it is so important to make sure safeguards are in place to try to ensure that you receive those payments.

As a general rule, child support is supposed to be deducted from the child support obligor’s paycheck.  Sometimes parties agree to bypass the state collection system and some judges are lax on actually requiring the child support to be paid by wage garnishment.  Nevertheless, child support is supposed to be paid by a wage assignment so that the obligor’s employer deducts the support and sends it to the Kentucky Child Support Enforcement at Centralized Collection Unit.

In order to make sure that child support is paid by wage assignment, it is important that the child support order specifically state that “immediate wage withholding shall apply.”  If your order does not say that, a court will grant a modification to include that language if a proper motion is made.  Once your order includes the necessary language, that actual wage withholding form must be completed, signed by the judge and sent to the obligor’s employer.  Additionally, if you are represented by a private attorney, Federal Income Withholding For Support Form OMB 0970-0154 must also be completed and submitted to the court and to the employer.

Once the proper wage withholding forms are completed and submitted to the employer, the next thing to do is make sure that you actually receive the support.  Under Kentucky Administrative Guidelines, the Centralized Collection Unit is supposed to receive the payment, process it, and get it out to recipients within forty-eight (48) hours.  If you want your child support payments deposited directly into your checking or savings account, you can go through the Kentucky Child Support Interactive Website to set that up.  You will also want to contact your local county attorney’s office to apply for services.  Once you apply for services through the county attorney’s office, you will be assigned a caseworker who will keep track of the child support payments that are paid, if the obligor is behind and, if necessary, refer the case to the county attorney for collection efforts such as contempt actions or even criminal charges.  The county attorney’s office provides these services free of charge and have tools at their disposal that private attorneys do not.  The chief among these being the ability to intercept an obligor’s tax refund to go toward child support arrearage.

While your ex may not like it, he or she has an obligation to provide for your child.  The best way to make sure that happens is with a proper wage assignment.

Photo courtesy of Morgan

Does Remarriage Affect Child Support in Kentucky?

Does Remarriage Affect Child Support in Kentucky?

When parents divorce in Kentucky, the non-residential parent usually pays child support to the primary residential parent.  This child support is calculated according to a very specific formula that takes into account each parent’s gross income, payments made for maintenance, payments on prior born children, and the child’s health insurance and childcare costs.  People often ask, “What happens if my ex remarries?”  Does the new spouse’s income affect child support?

The short answer is no.  Kentucky, like most states, follows the rule that the new spouse’s income is not included in a child support calculation.  There may be exceptions in certain extreme cases, but as a general rule it does not matter.

A new spouse’s income is not considered because the new spouse has no legal obligation to support another person’s children.  Hopefully, the new spouse will not turn out to be a “wicked stepmother” and will genuinely love and care for the children, but the law does not impose any such obligation.  The new spouse’s income presumably will help defray the expenses of the household where the child primarily resides and these expenses are the types of things that are covered by child support.  However, it is presumed that the new spouse does so voluntarily and the law does not require the new spouse to continue to support the children.  Therefore, a new spouse’s income, in and of itself, is not enough to justify a modification of the child support order in Kentucky.

Photo courtesy of Jeff Christiansen

Can I Take a New Job and Pay Less Child Support?

Can I Take a New Job and Pay Less Child Support?

The payment of child support is often a source of resentment between two parents.  The person receiving it knows that it is never enough to fully support the child’s needs.  The person paying the support almost always thinks the amount they are required to pay is too high, especially if they feel the support is not going directly to the child.  As a result many child support obligors get the brilliant idea that they will just quit their job and go “flip burgers” for a living.  The logic goes that they will make less money, thus pay less child support, and “really teach my ex a lesson.”  Not so fast.

Although the idea of quitting your job and reducing your income might sound like the solution to paying what one perceives as too much child support, you may find yourself in a much worse situation.  Kentucky, like several other states, recognizes the concept of being voluntarily unemployed or even under-employed.  The basics of this concept are that given one’s training, education, and skills, he/she should be able to find a job making more money than he/she is currently earning.  Kentucky has done away with the requirement that it be proven that the child support obligor intended to lower his/her child support obligation when the obligor changed employment, but most courts will still take into consideration whether the person voluntarily quit their position or were laid off/downsized.

If the court determines that someone is voluntarily unemployed or under-employed, that person’s child support obligation would still be calculated at what he/she was previously earning or using a figure that the court believes the person could reasonably be expected to earn.  If that person is not currently earning that figure (e.g. an engineer who has decided to work at a fast food restaurant), that person is going to start accumulating a child support arrearage very quickly or a large part of the money he/she is actually earning will be going to child support leaving that person very little for his/her own expenses.  While this may sound somewhat draconian, the family court does not appreciate it when it feels that someone is trying to work the system to avoid their obligation to one’s children.

Rather than trying to scam the system (and possibly leaving you with less money to live on), it is better to pay what you are ordered to pay and maintain a close relationship with your children and a civil relationship with your ex so that you can make sure that your child is being cared for appropriately.

Photo courtesy of David Blackwell.

What Does Child Support Cover?

What Does Child Support Cover?

This is a question that plagues couples trying to coparent a child.  One side thinks child support payments should cover everything and the other usually thinks it does not cover nearly enough.

Ideally, child support is supposed to be a base figure that contributes to the basic needs of the child.  It represents the non-residential parent’s obligation to provide for the child’s food, shelter, clothing and other necessities.  As we have previously discussed, the parent receiving the child support is under no legal obligation to provide receipts showing how the money was used.

In addition to the base child support amount, the non-residential parent will also have to contribute to a portion of the child’s health insurance cost, which is usually factored into the actual child support calculation itself.  He or she will also have to pay a percentage of work/school related child care expenses and “extraordinary uninsured medical expenses.”  Extraordinary uninsured medical expenses are defined as any medical expense for the child that exceeds the first one hundred dollars in the calendar year; meaning that the residential parent is on the hook for the first $100 each year but after that the expenses are divided.  Daycare and uninsured medical expenses are divided proportionately according to the parents’ incomes.

There is no requirement that the non-residential parent contribute additional money for extracurricular activities, school clothes, dance lessons or other similar expenses.  Although it is not a requirement, if the parents share a good co-parenting relationship, hopefully each of them will want the child to be able to experience childhood to the fullest and will assist each other in covering the cost of those activities just as they would have had the parents stayed together.  If a particular expense is important to the the parents (for example, college expenses), the parents may agree to share that cost in their marital settlement agreement or joint parenting agreement and the court will generally enforce it.  Absent such an agreement, there is no requirement for additional payments beyond child support, childcare and medical payments.

Photo courtesy of Reuben Ingber

Does a Parent Have to Account for How Child Support Payments are Spent?

Does a Parent Have to Account for How Child Support Payments are Spent?

The short answer is “no.”  (Who says lawyers don’t give clear answers?)

One of the biggest complaints we hear is that “the other parent is not spending my child support payments on our child.”  This can be particularly frustrating when the child support payment is significant and/or when the payor disagrees with the recipient’s spending habits.  For example, I had one client call and was very upset that his child’s mother had sent him an email saying she was using his child support payment to cover the cost of her new SUV.

Child support can be used for anything and there are few, if any, rules on how it is to be spent.  Kentucky’s child support guidelines, as were most other states’, were established in response to the mandate of the Family Support Act of 1988 passed by the federal government.  That act is similarly silent as to how child support is to be spent.  Child support is intended to pay for the child’s basic needs including housing, food, and clothing.  In addition to these basic needs, it may also be used for school activities, extracurriculars, and transportation costs, which would include the new SUV I mentioned in the earlier case.

The parent who receives the child support has broad discretion in how the money is spent.  Although it can be frustrating to the person paying the support, the payor has no real say in how it is used as long as the child is being cared for appropriately.

Occasionally, parties will enter into an agreement to “split expenses” for the child instead of paying child support.  These agreements almost never work out.  It seems invariably that the parties end up disputing what a legitimate expenses or what they agreed to “split.”  This will usually wind up in additional litigation and legal fees while a judge is forced to review receipts for these expenses.  Judge despise being forced into a situation where they are required to review receipts.  When these types of agreements come back before the court, the court will most likely do away with the agreement and order guideline support be paid instead.

Similarly, Kentucky courts will not review or require an accounting of how guideline child support is spent by the recipient.  The best way to ensure the child support is being used to properly care for the child is to maintain a close relationship with the child.

Photo courtesy of ben_osteen

Should I Get a Prenuptial Agreement?

Should I Get a Prenuptial Agreement?

Many people who have felt the sting of a divorce decide to once again take the plunge and tie the know once again.  When they do, they often want to minimize the chance of going through the divorce experience again.  That is where a prenuptial agreement comes in.

Prenuptial agreements are also called antenuptial agreements, premarital agreements, or prenups.  Prior to approximately 1990 they were not even allowed in the Commonwealth of Kentucky because it was believed that they would actually encourage divorce.  A Kentucky Supreme Court case allowed couples to determine how their assets and debts would be divided in the event of a divorce thereby bringing Kentucky into line with a number of other states on this issue.

The issue of whether you should even bother with a prenuptial agreement really depends on your situation.  If either one of the soon-to-be-spouses has significant assets that they wish to keep separate from the other spouse, a prenuptial agreement is a definite consideration.  If neither party is coming into the marriage with any significant financial holdings, there probably is no real need for one.

If you have determined that a prenuptial agreement is something that you want to consider, it is important to understand what can be covered and what cannot.  Moreover, the actual drafting and way the document is executed is important as well.

A prenuptial agreement can cover a number of issues such as:

  • What property is each party’s non-marital property
  • What property will remain each party’s non-marital property
  • How marital property will be determined in the event of a divorce
  • How each party’s property will be divided in the event of a divorce or even death
  • How debts will be divided in the event of a divorce
  • The effect commingling assets will have in the event of a divorce
  • How income and appreciation in value of assets will be treated in the event of a divorce
  • What happens to each spouse’s retirement benefits in the event of a divorce
  • Whether maintenance will be awarded and how much

A prenuptial agreement cannot deal with any issues involving child custody or the payment of child support.  Those issues will have to be decided upon either by agreement of the parties in event of a divorce with approval by the court or the court will have to make the final decision.  The reason for this is that the court is the final arbiter of child custody and, more specifically, the child’s best interest in the event of a couple’s divorce.  That decision cannot be predetermined prior to the marriage even taking place.  Additionally, child support is typically seen as a right of the child which cannot be bargained away by either parent prior to the divorce.  In fact, many judges are loathe to allow child support to be waived absent a showing of good cause in the event of an actual divorce.

In a future post, we will discuss the actual execution and enforceability of a prenuptial agreement.  For now, if you think a prenuptial agreement may be right for you, it is important that you meet with your family law attorney, estate planning attorney and financial adviser to discuss your options.

Photo courtesy of scienceatlife

Overtime & Other Income for Child Support Calculation

Overtime & Other Income for Child Support Calculation

“But, Judge, I am going to be making less money this year!”

It is the cry of every child support paying parent who receives overtime or owns their own business.  Nearly every such parent can find some reason in the midst of a divorce why his/her income is going to go down significantly in the near future.  Generally, judges do not buy it.

If you (or your spouse) have a history of earning a significant amount of overtime on a fairly regular basis, it is going to get included in your income for purposes of calculating child support.  If you get a bonus, it is going to get included in calculating your child support.  Kentucky bases child support calculations on gross income.  Under the child support statute, gross income includes “salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received.”

If you are self-employed and you have managed to show the IRS that you do not make much money through the magic of accelerated depreciation, get ready for a rude awakening.  Although Kentucky will allow you to count depreciation to get to your gross income, you can only use straight-line depreciation which is much less generous.  Additionally, you can deduct expenses that are necessary for the production of income.  However, if you are running a lot of expenses for personal use through the business, they may be added back in as part of your income.  This may include a vehicle, cell phone, and even certain insurance payments.

Although child support in Kentucky is a matter of applying the formula correctly, getting the right numbers to put into that formula can be difficult.

Photo courtesy of Tax Credits