Your lawyer has just told you what you are likely to receive for child support and your jaw has dropped because you know the amount comes nowhere near the actual cost of supporting the children. How then, do you get your soon-to-be ex-spouse to pay what you consider to be a fair amount for the children?
In a recent unreported decision, the court ordered an enhanced amount of child support ($50,000) but was then reversed on appeal because the judge failed to conduct an analysis and explain why he deviated from the formula which is used to calculate support for children.
In the vast majority of cases, child support is determined through the use of a formula known as the New Jersey Child Support Guidelines, which are found in Appendix IX-A of the Court Rules. This formula is a rebuttable presumption in both establishing and modifying all child support orders. Under the court rules, the Guidelines have to be applied in all matters whether contested or not. The court rules contain 53 pages of really small print explaining how they work. But generally, the idea is that each parent is responsible for a portion of the cost of raising children and the amount it costs to raise children is based on statistical averages throughout the state, depending on the parents' combined income.
For cases in which the parents' combined income is over the poverty line, and below $187,200 net, the guidelines apply, and the appropriate child support amount is applied to the case. If the combined income is over that amount, then the Guidelines are applied, and an additional amount is added. The amount that is added is based on the remaining family income and the following factors:
- Needs of the child;
- Standard of living and economic circumstances of each parent;
- All sources of income and assets of each parent;
- Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
- Need and capacity of the child for education, including higher education;
- Age and health of the child and each parent;
- Income, assets and earning ability of the child;
- Responsibility of the parents for the court-ordered support of others;
- Reasonable debts and liabilities of each child and parent; and
- Any other factors the court may deem relevant.
When a parent believes that the number under the Guidelines is inappropriate (even when income does not exceed $187,200), the court has discretion to deviate from that amount if circumstances exist such that the guidelines amount is unfair. The court can take the following factors into consideration when deviating from the Guidelines:
- equitable distribution of property;
- income taxes;
- fixed direct payments (e.g. mortgage payments);
- unreimbursed medical/dental expenses for either parent;
- tuition for children (i.e. for private, parochial, or trade schools, or other secondary schools, or postsecondary education);
- educational expenses for either parent to improve earning capacity;
- single-family units (i.e. one household) having more than six children;
- cases involving voluntary placement of children in foster care;
- special needs of gifted or disabled children;
- ages of the children;
- hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of saving;
- extraordinarily high income of a child (e.g. actors, trusts);
- substantiated financial obligations for elder care that existed before the filing of the support action;
- the tax advantages of paying for child health insurance;
- one obligor owing support to more than one family (e.g. multiple prior support orders);
- the motor vehicle purchased or leased for the intended primary use of this child subject to the support order;
- parties sharing equal parenting time; and
- overnight adjustment for multiple children with varying parenting time schedules.
This list is not exhaustive. There are several other reasons why the Guidelines can be deviated from. The important thing is to build a case which addresses any and all reasons to deviate from the Guidelines-up or down. When there are extenuating circumstances, it is critical to compile documents and information which substantiate the claim. While there is certainly no guarantee, the Perry case demonstrates that judges are willing to consider the issue, but have to be given the correct information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.