Support for Children and Spouses FAQ
Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.
Parties often separate without contemplation of divorce. One of the spouses and children may be in need of financial assistance in these circumstances. Also, parties who have never married but who have had children together may need financial assistance in raising the children. Of course, the need for child support may also arise in the context of a divorce action.
What is support?
Support is generally defined as financial assistance that one person may be compelled to pay for another person which is used to provide the ordinary and reasonable necessities of life. It may also include a requirement to provide medical insurance and to pay a portion of a recipient’s medical expenses that are not covered by insurance. Support may also include a share of the parent’s child care expenses that are incurred to permit that parent to work. Examples include child support and alimony.
Who is required to pay support?
1. Married persons can be compelled to support their marital partners in accordance with their financial ability while they remain married;
2. Parents are liable for the support of their children until their 18 birthday or until they graduate from high school, which ever occurs later. This obligation is enforceable regardless of whether or not the parents were ever married; and
3. Parents may be liable for the child support for their children who are 18 years of age or older under special circumstances.
Are there defenses to a claim for support?
In the case of alimony, it is a defense to the claim if the conduct of the spouse/claimant would constitute grounds for a fault divorce.
How do I start a legal action for support?
An action is commenced by filing a complaint with the domestic relations section of the county court or a count for child support may be included in a divorce pleading.
Who can file an action for support?
Any of the following persons or agencies can file a support action:
1. The adult person (or married person under 18 years) to whom the duty of support is owed;
2. A person having custody of a minor child for whom support is sought;
3. A public body or private agency that has an interest in the care or maintenance of a person for whom support is sought; and
4. The parent of a child who is older than 18 years if the support is for that child and the child gives written consent for the parent to file the action.
Where should I file my complaint for support?
A complaint for support is properly filed in the county:
1. In which the defendant resides;
2. In which the defendant is regularly employed; or
3. In which the Plaintiff resides and that county was the county in which the family residence was maintained and the plaintiff has continued to live there.
How will my support case be processed by the court?
Pennsylvania permits courts to utilize one of two separate procedures. Under the first alternative, the parties are required to attend a conference before a conference officer (a lawyer appointed by the Court).
The parties are required to exchange income information (tax returns, pay stubs,) and budgets. If the parties agree to a support amount, a Consent Order is prepared and signed by the parties. If there is no consent agreement reached, the conference officer prepares a summary of the proceeding and makes a recommendation to the Court. The Court then has the option of entering an Order of Support which will become final within ten (10) days if neither party requests a hearing before the court. If the Court chooses not to enter an order based upon the conference officer’s recommendation, or if a hearing is requested, the parties appear before a Judge where all relevant information is presented to the court.
Under the second alternative, the parties appear for a conference before a Domestic Relations Counselor (usually not an attorney). At the conference, the income information is exchanged. An effort is made to reach a Consent Order. If agreement is made, the order is prepared and signed by the parties. If no agreement is reached, the parties are given a date for a hearing to be conducted by a hearing officer.
In many counties, the case is usually heard the same day as the conference. The hearing officer takes testimony and makes a recommendation as to the amount of support to be paid. If neither party files written exceptions to the recommendation within ten (10) days, it becomes an Order of Court. Under this procedure, the parties do not have the right to a new hearing before the judge if exceptions are filed. Instead, the parties or their lawyers file briefs with the Court explaining why the recommendation may be incorrect, and an oral argument on the issue is conducted by the judge. No other testimony or evidence is presented at that time.
What happens if one of the parties decides not to appear at this conference or hearing?
The Court can order that the party who failed to appear be arrested. If proof of the defendant’s income can be made in the defendant’s absence, the Court may also enter an order based upon that information. If the claimant fails to appear, the action may be dismissed.
I am not married to the mother of the child. I do not believe I am the father. How can I contest paternity?
The issue of paternity may be raised in a non-mandatory answer filed to the support complaint, or it may be raised at the support conference. If the issue is raised at the conference, the proceedings are suspended, and the parties and child(ren) in question are compelled to submit to genetic testing. Genetic tests that indicate a 99% or greater probability that the alleged father is the father of the child limits the defense to a showing by clear and convincing evidence that the genetic tests are not reliable. If the genetic tests indicate a less than 99% probability that the man is the father of the child and a trial becomes necessary, the case will be listed for an expedited trial before a judge.
How is the amount of support to be paid determined?
Support Orders in most cases are determined by reference to support guidelines published in the Pennsylvania Rules of Civil Procedure. The net monthly incomes of each of the parties are added together to determine the “combined monthly net income”. Reference is then made to a chart that indicates the usual amount of the “combined monthly net income” that is spent for the support of one to six children. The amount the payor will be ordered to pay is determined by multiplying the indicated support amount by the percentage that is the payor’s share of the “combined monthly net income”. The charts do not apply where the “combined monthly net income” exceeds $20,000.00. In such cases, resort is made to a support calculation methodology set forth by the Pennsylvania Supreme Court. However, the highest support number applicable under the guidelines will be the minimum amount presumed to be due.
What is net income and why is it important?
Support Orders are determined from the uniform guidelines by applying “net income” figures to the so called grids. Net income is not necessarily the same as take home pay. Net income is determined by a two-step process. First, at least a six month average of your gross income from all sources is calculated. This includes such things as wages, salaries, commissions, income from a business, interest, rent, retirement benefits, social security, worker’s compensation and unemployment compensation. Second, a limited number of items are deducted from your gross income to arrive at net income. These deductions are federal, state and local income taxes, social security and medicare taxes, non voluntary retirement deductions and union dues. The difference is your net monthly income.
The payor in my case has just decided to quit his/her job. Will this effect the amount of support to be paid?
No. A person will not usually be relieved of a support obligation by voluntarily quitting work or for being fired for good cause.
My spouse is laid off several months each year. How will this effect my support order?
The fact that a person’s work may be seasonal is taken into consideration when the order is first made. The payor’s net income in such cases will be averaged over a period of a year. The order will be based upon that average. Payments are then required, regardless of layoff status. Of course, adjustments can be made if the layoff status becomes permanent.
Who has to make the mortgage payment?
The guidelines are premised upon the assumption that whoever occupies the marital residence is responsible for paying the mortgage, real estate taxes and homeowner’s insurance. The rule is generally applied. Exceptions will be made if the mortgage is unusually high. Specifically, if the mortgage payment is to be paid by the recipient of the Support Order and that payment is greater than 25% of the recipient’s net income (including amount of spousal support, alimony pendente lite and child support to be paid) the Court can require the payor to pay as additional support an amount up to 50% of the excess mortgage payment. The term “mortgage” includes first and subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.
I have custody of our children. In order to work, I have to pay day care or other child care expenses. Can the other parent be made to contribute to these expenses?
Yes. Reasonable child care expenses paid by the custodial parent, if necessary to maintain employment or appropriate education, the goal of which is to secure income, are the responsibility of both parents. These expenses shall be allocated between the parties in proportion to their net income and the payor’s share shall be added to his or her ordered payment. In calculating the expenses, the actual amount spent may have subtracted from the number the federal child care tax credit available to the custodial parent regardless of whether or not it is actually claimed on your return.
Our children have traditionally attended private or parochial school. Now that we are separated, who is responsible to pay these tuitions?
The support guidelines do not take into account expenses that may be incurred for private school tuition. If it is determined that such expenses are reasonable, the responsibility for payment will be allocated on a fair basis between the parties. The payor’s monthly share is added to his/her support obligation.
I spend money on the child(ren) every time I am with them. Shouldn’t I get credit for this concerning how much support I am ordered to pay?
You will not receive credit for these expenditures. This is because the guidelines are calculated in such a way that they already presume you have regular contact with your child(ren) and that you make expenditures on their behalf at those times.
My former spouse has remarried and has a new child. How will that effect the amount of child support I receive for our child(ren)?
Every effort is made to treat all the children of a payor fairly. In such a situation, calculations are made as to what the current support amount is for your child(ren) and what the guideline figure would be for children from the new relationship. If these two figures added together do not exceed 50% of the payor’s net income, no adjustments will be made to the child support received by you. If the combined figures do exceed 50% of the payor’s income, an adjustment may be made.
Our children were here first. The payor should have taken this into consideration when he/she started his/her new family. Therefore, isn’t it right that the new family’s child support should be adjusted first?
No. The courts are not permitted to give preference to either first or later families. If an adjustment must be made, reductions will be made proportionately.
Our kids need health insurance. Who has to provide it?
Under state law, the non-custodial parent bears the initial responsibility of providing health care coverage for the children if it’s available at a reasonable cost through an employer or other group basis. The premium that person pays for the health insurance will be taken into account in setting the support order. The total insurance premium is allocated between the parties in proportion to their net income. So, if you are the payor of the support order and you pay for the health insurance, your Order will be reduced by the percentage of the insurance premium that corresponds to the percentage that the recipient’s income is of your combined monthly net incomes. There is no reduction if the employer pays the premium.
Our health insurance does not cover all medical expenses incurred for our child(ren). Who pays for the unreimbursed part of those expenses?
The first $250.00 of unreimbursed medical expenses per child per year are built into the basic Order. Additional uncovered medical expenses are divided between the parties in proportion to their net incomes. The Court may place an annual cap on the amount of these expenses that must be paid by the payor. Medical expenses do not include charges for cosmetic surgery, psychiatric or psychological or chiropractic services, unless these expenses are brought directly to the attention of the Court and addressed in the Order. If you anticipate incurring such expenses on behalf of your child(ren), make sure that you bring this matter to your attorney’s attention.
We have been separated for several months, and my spouse has not paid any support. When I obtain a support order, can I get retroactive payment for those months?
No. The Support Order is retroactive only to the date you filed the complaint.
Can my existing support order be changed?
Yes. Either party may file a petition to modify an existing Support Order, if there has been a permanent and substantial change in the circumstances of either party. In such event, a new guideline support figure will be calculated. Additionally, the law requires that an order must be reviewed at least one time every three years and apply the current guidelines.
How is the order paid?
For all orders of support which are either entered or modified after July 1, 1990, the support payment is collected by the issuance of a wage attachment directed to the payor’s employer. The employer sends the payment to the court, and the court then sends payment to the recipient.
Wage attachment will not issue if the payor is behind less than thirty (30) days, and if the Court finds good cause not to require it, or the parties provide for an alternative arrangement in writing.
If the court order for support is disobeyed, how will it be enforced?
There are several ways to enforce an order for support:
1. A wage attachment may be issued if one is not already in effect;
2. Contempt proceedings may be initiated. This involves filing a petition, an appearance before a court officer, and possible appearance before a judge. If it is found that the payor has the ability to pay the order and is willfully failing to do so, the payor may be found in contempt of court. Such contempt may be punishable by imprisonment for up to six months and/or a fine of up to $500.00 and/or probation up to one year.
3. If a court finds that the payor did not have a good cause for failure to make child support payments on time, the payor may also be compelled to pay the other side’s legal fees and costs.
4. All overdue payments are treated as a judgment and it can be enforced like the judgment of any other creditor against assets of the payor.
5. Additionally, if the payor holds a professional license in Pennsylvania and is in arrears for more than 3 months of support payments, that person’s professional license may be suspended or not renewed. This action is not undertaken until appropriate notice is given to the payor, along with an opportunity to contest the action if there has been a factual mistake made.
6. Suspend the driver’s license of anyone who is in arrears for more than three months of support.
7. Have the Pennsylvania Game Commission or the Pennsylvania Fish and Boat Commission Issuance or Renewal of recreational license of anyone who is in arrears for more than three months of support.
I had a significant change in circumstances several months ago that should serve to reduce the amount I must pay as support. As a result, arrearages have built up against me. Can I have retroactive modification of those arrears?
Generally, no. Unless you were unable to file a timely petition because of a mental or physical impairment or misrepresentation by the other side, any relief you can receive will be retroactive only to the date that you file your petition. Therefore, if you have been subjected to a significant and ongoing change in circumstances, consult your attorney promptly.
Do I have any obligation to the court if I change jobs or move after the support order is entered?
Yes. Any party to a Support Order must notify the Court, in writing or by appearing in person, of a change in employment or change of address. This must be done within 7 days of the change.
My former spouse is remarried. His/her new spouse has a good job. Do the new spouse’s earnings figure in our support order?
The new spouse has no obligation to contribute to the support of your child(ren). However, his/her income is relevant in determining how much of your former spouse’s income may be available for child support.
There is no formula for factoring this into the guidelines. But, the existence of such income may be the basis for deviating from the usual recommended guideline amount.
If I don’t have a job, the court will apply the 0 income figure for me on guidelines, right?
Not necessarily. Even though you do not currently have income from employment, it may be determined that you have an earning capacity, or in other words, an income figure that may be assigned to you in calculating support. This determination is based upon a number of factors such as your educational background, your employment history, how long it has been since you last worked, whether there is any valid reason why you cannot work, such as a physical malady or the need to care for small children, your age, health and the job outlook in your area.
Sometimes, the Court will not assign you a current earning capacity, buy may require you to begin an earnest search for employment which can later be documented for the Court.
We have small children. I do not currently work. Will an earning capacity be assigned to me?
Not necessarily. Our courts have recognized that in appropriate circumstances, the so-called “nurturing parent” should not be expected to find employment in order to further the child’s economic welfare at the expense of the child’s emotional welfare. You need to explain your particular circumstances to your attorney.
My spouse receives substantial bonuses. How does this impact on the support order?
Bonuses received over the past 12 months are calculated, and usually 1/12 of the annual amount received after taxes is added to other monthly net income. The Court, however, does have discretion to prorate this lump sum over a shorter or longer period depending upon the circumstances of the case.
The other parent constantly frustrates my ability to visit with our child(ren). Therefore, I intend to withhold support payments. Can I lawfully do this?
No. The duty to support is in no way dependent upon the right to visit. You have separate legal remedies to enforce your right to visit. If you withhold payment, you will be adjudged in contempt of court and subject to the punishments discussed in this book.
We still live in the same house. Can I obtain a support order?
Generally, no. In order to obtain an order, you must demonstrate either a physical or financial separation. If the regular expenses of the household continue to be paid by the potential payor, the Court will usually not enter a support order when the parties continue to reside in the same household.
What legal obligation do parents have to contribute to the post high school educational expenses of adult child(ren)?
None according to the most recent pronouncement of the Pennsylvania Supreme Court. For decades, it was understood as the law in this state that parents could be required to pay for the post high school education of their child(ren) in accordance with the ability of the parents to pay and so long as it did not work an undue hardship on the parents. This concept was turned on its ear by the 1992 decision of the Pennsylvania Supreme Court in the case of Blue v. Blue. In that case, the Supreme Court ruled that a parent does not have a duty to support a child after the child turns 18 or graduates from high school, whichever event occurs later. The decision caused a proverbial uproar. The legislature responded by quickly enacting a law designated as Act 62 of 1993 most commonly referred to as the Anti-Blue Statute.
This law became effective on July 2, 1993. It provided that parents who are separated, divorced, unmarried or otherwise already subject to a Support Order, may be compelled to contribute to the post secondary educational expenses of their child(ren). This statute was challenged on constitutional grounds, as it was argued that the law did not apply equally to intact family units as well as those mentioned above. In October 1995, in the case of Curtis v. Kline, the Pennsylvania Supreme Court ruled that the law was unconstitutional and struck it down. Therefore, as the law currently stands, a parent cannot be compelled to contribute to the college education expenses of an adult child. However, the parent can legally obligate himself/herself to contribute to such expenses if the parent executes a marital settlement agreement requiring same. In such circumstances, the Court will enforce the legally binding contractual obligation of the parent.
I have so many bills that I can’t pay them and child support too. What am I supposed to do?
This, unfortunately, is a very common lament. There very often is simply not enough money to go around. You should be aware, however, that our courts require that you give your support obligation top priority. You may need to make adjustments with regard to other expenditures or change payment plans. Remember, your general creditors cannot have you held in contempt of court and punished accordingly or have other sanctions imposed upon you as discussed earlier in this chapter. Your attorney may be able to help you in working out satisfactory payment plans with creditors that will enable you to comply with the Support Order and keep the other creditors satisfied.
The other parent has excess withholding taxes taken from his/her pay so as to reduce his/her net income for support purposes and then gets a nice refund. What can be done?
Excess withholding can be added back to the payor’s net income. If the refund was already received, 1/12 of the preceding year’s refund will be added to the payor’s net monthly income.
I pay alimony to my former spouse. How is this taken into account in calculating child support?
The alimony is included in the recipient’s net income calculation and deducted from the payor’s net income.
I spend a great deal of time with the child(ren). Should my support obligation be reduced to reflect that?
It’s possible. But the amount of time you spend with the children must be substantial. Specifically, the guidelines will provide for no adjustment until you have at least 40% of the overnights with the child(ren), i.e. 146 nights per year. The standard formula is a bit complicated but goes like this. Subtract 30 from the total percent of overnights the children spend with you. e,g, 40% – 30% =10%. That remainder is then subtracted from your % share of the child support. Under our example, if you were responsible for 62% of the child support, that percentage would be reduced to 52%.
If you actually share equal time with the children your support order will be adjusted so that the recipient’s net income and child support do not exceed 50% of the parties’ combined monthly net income.
I do not yet have a support order, and the prospective payor lives in another county or state. How do I proceed?
If you continue to live in the county in which the marital residence was maintained, you can still file for support in the county in which you reside. Otherwise, you can go to the county or state in which the defendant currently resides and file a complaint against the potential payor. If that is not practical, or if you no longer reside in the county of the marital residence, you may proceed under the provisions of the Revised Uniform Interstate Family Support Act or the Intrastate Family Support Act. The law in this area is complex and you will need to consult your attorney concerning your particular circumstances.
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