Divorce - Terms and Explanations 3

Chapter 1

Custody, Child Support, and Visitation:

Custody, child support, and visitation are separate issues.

In some States, if the parent receiving child support interferes with the other parent’s visitation for any reason that does not have to do with the child’s safety, then the parent interfering can be charged with a crime.

You cannot deny or interfere with visitation, even if the other parent is late or behind in child support payments. This is one of the main reasons why we believe that it would be best for both spouses to have all child support payments go through your State’s child support agency.

Having all child support payments go through your State’s child support agency helps to protect both spouses. Because the State agency keeps track of all payments, one spouse cannot claim that they did not receive any child support when they did, and the other spouse cannot claim that they made the payment when they did not.

It is a lot easier for your State’s child support agency to collect any missed child support payments than it would be if you attempted to collect the missed child support payments. In addition, if you did miss a payment, it is a lot easier to talk to your State’s child support agency about it and let them handle it.

Custody

There are several types of custody, but the main ones are the following:

Physical custody is the right to have the child live with the parent.

Primary Physical custody is the right to have the child live with one parent for more than 70% of the time.

Legal custody is the right to make major decisions relating to the raising of the child.

Sole custody gives one parent Physical custody and Legal custody.

Joint custody or Shared custody is where both parents share the major decisions regarding upbringing the child. Joint or Shared custody, one parent can have Physical custody, but both parents will have Legal custody.

Divided custody, Alternating custody, Split custody, and Joint-Physical custody all basically mean that the child will be split between the two parents. For example, the child will live with one parent for 6-months and then live with the other parent for 6-months. Most courts do not like this kind of arrangement.

Taxes & Child Support

If you are paying child support, you cannot deduct the amount that you pay in child support on your taxes. The one who is receiving child support payments does not report the payments as income.

However, you and your spouse will have to work out some kind of agreement as to who will get to claim the children on their taxes at the end of the year.

According to the IRS publication 504, the parent that has the children most of the year, regardless of who is paying the child support, is the one that usually gets to claim the children on their taxes.

Every State or county usually has its own’s child support department, and we suggest that before or when you file your divorce papers to ask the clerk where you should go to attain a child support ORDER and have it enforced.

Child Support

Obligor: is the person paying child support.
Obligee: is the person receiving the support on behalf of the child.

You only have to pay child support for your biological and adopted children.

If one parent has Physical custody of the child, then the other parent will pay child support. The only way around this fact is if the other parent has no income.

If the other parent has never paid any child support, and the child is now 30-years old, the child can go after the parent who has never paid any child support. The child will receive all the back-child support for all the years that were never paid.

If you die, the child might still be able to get the back-child support from your estate or social security. Unlike taxes, where you stop paying after you die, with child support, you might still be paying it even after you die.

When it comes to child support and divorce, every State can be different.

Some States require that all child support payments go through the State’s child support agency or be directly deposited.
Some States determine child support based on the parent’s gross income, and other States determine child support based on both parent’s net income.
Some States require you to go through the divorce process first and have custody officially determined before you can pursue child support.
Some States require you to attain a child support ORDER separate from the divorce ORDER; this means having an independent child support hearing.
Some States will allow you to combine the child support ORDER with the Divorce Decree or Judgment.

We recommend that no matter what your State will allow you to do, contact your State’s child support agency before you file for divorce and follow their procedure.

Your State’s child support agency will be able to instruct you on your State’s child support guidelines, which have to be followed. Your State’s child support agency will be able to help you file for child support.

If you attain child support through the divorce proceedings, you should know that the court or Judge only provides an ORDER or a Judgment for child support.

The court does not enforce the ORDER for child support, and it will be up to you to enforce the child support ORDER or Judgment.

However, if you attain child support through your State’s child support agency, they will ensure that the child support ORDER is enforced.

If you go through your State’s child support agency, the one paying child support might be responsible for paying child support from the time you two were separated. This means that the one paying child support might also have to make back child support payments.

How Child Support is Calculated:

schedules, tables, or a formula

One method used to determine child support is the percentage of income method, which is based on the percentage of income of one or both parents, such as:

20% of income of one parent for the first child
30% of income of one parent for two children
38% of income of one parent for three children
43% of income of one parent for four children
47% of income of one parent for five children etc.

For some States, the percentage of income amounts stated here will be lower, which is another reason to contact your State’s child support agency before you file for divorce. Your State’s child support agency will help you calculate the correct amount.

combine income method

Another method is the combined income method, where child support is based on the income and expenses of both parents.

Child Support Payments Are Causing You Financial Hardship:

If the Judge issues an amount of child support that will cause you or your spouse financial hardship, then bring this to the Judge’s attention.

However, the Judge might not consider reducing the amount of child support during the divorce proceedings. Yet, the Judge will consider raising the amount of child support during the divorce proceedings if the Judge believes that the amount you are paying is too low.

The Judge and the courts do not like people attempting to reduce the amount they pay in child support.

If you need to have the amount you are paying in child support reduce, we recommend getting a lawyer. In fact, some States do not allow a reduction in child support unless your income has dropped to being close to or at the poverty level.

If you cannot afford a lawyer, some States have free family law help clinics, and they will be able to help you draft a motion and prepare you to present your case in court for a reduction in child support.

Paternity:

Paternity means, are you the biological father of the children?

In this age of talk shows, we now know that some women can and will lie. Even if you believe that the child is not your biological child, the court will still assume that the child is your biological child. Because of this, you will be responsible for child support until you prove to the court that the child is not your biological child.

If you are not sure the child is your biological child, call the State’s family helpline. You can also petition or file a motion asking the court for a DNA test, which is 99.99% accurate, or an HLA Test (Human Leukocyte Antigen Test), which is 90% accurate.

Visitation:

The children live with the custodial parent, and the non-custodial parent is the one that receives visitation.

Many divorce agreements have the terms reasonable visitation or liberal visitation.

When it comes to visitation, you want to leave out the word reasonable visitation or liberal visitation, or all combinations of reasonable and/or liberal.

These two words give all the power when it comes to visitation to the parent with physical custody of the children.

The terms reasonable and liberal are so open to interpretation that when you attempt to have the visitation order enforced by the court or the police, both might say “reasonable visitation? What does that mean“?

All child visitation agreements should spell out and be extremely clear what the visitation schedule will be, including holidays. It is because people can seem very reasonable during the divorce, but as soon as one spouse gets a new girlfriend or a new boyfriend, then things can change very quickly.

You should also leave out the term every other weekend, because who is the one that decides which weekend is every other weekend.

The person who decides which weekend is every other weekend is the same person that can decide to make it mean “not during the school year, or not during the months that has holidays.”

If you pick up the children during the weekend, when does the weekend start?
Does the weekend start on Friday, or does the weekend start on Saturday?
Are you supposed to wait around all day on Saturday for the other parent to pick up the kids?
On Saturday, the other parents show up at 1:00 in the afternoon, and the next Saturday, the same parent does not show up until 10:00 pm to pick up the kids.

There should be a clause that punishes the parent for being late or not being available regarding visitation. Such as,

If the non-custodial parent failed to follow the agreed date and time of visitation and without a reasonable explanation, then visitation will be postponed until the next agreed date and time of visitation.

If the custodial parent failed to follow the agreed date and time of visitation and without a reasonable explanation, then the non-custodial parent has the right to set the next date and time of visitation. Plus, the non-custodial parent will be granted an additional date and time for the visitation missed.

F.Y.I - D.I.Y

Divorce Chapter 1 – English Version.