The Time and Money Conundrum
** Disclaimer – I had not intended this post to be this long, but once I was writing it all had to be said. I also intended to have a personal aspect to it, but I will right the personal side to this post in a separate post. **
Anyone who has been through the divorce process has had it explained that the issues of child support and parenting time are decided separately. In theory this seems like a good thing. You are addressing the needs of the children separately, and this makes sense, because they are different needs. Anyone who has been through the divorce process also knows that this is all a bunch of crap. The two issues are so intimately tied together, that you cannot discuss one without discussing the other. It simply is not possible.
For those that have not been through the wondrous experience of a divorce that includes court rooms, lawyers, GALs, and lots of journal entries, have no fear, I can share how some of that works. My experience covers a large number of the potential issues that arise. If this is your first time at my blog, then let me explain. I have gone from super-dad to dud. I have gone from involved in my kids every moment to observer of the few that I am allowed to see. This didn’t happen because I changed in some dramatic way, but because the court chose a course for us to take, and it was necessary for me to play my part. If you wonder about how court works, take the time to watch “Divorce Corp.” It is a mind-blowingly accurate depiction of the things that you are going to face in divorce court if there is any kind of battle at all.
The parenting plan is officially the first thing that has to be decided for custody. The legal principle in play is “the best interest of the child.” It will be applied to determine how much time and the schedule of that time that the children will spend with each parent. In most states the children have no official say in this process. They are talked about, and may seemingly receive representation through a GAL, but the truth is that they have little or no say in the decision. This is because the parents under the law have the say, but somehow this is twisted and the court gets to decide. The GAL doesn’t actually represent the children, but the legal principle of “the best interest of the child.” This is not the same thing at all, and the children have no say in this. This does not mean that court and GAL won’t go through the motions of interviewing and discussing things with the children, but ultimately they are children and thus are considered to have poor judgement. There are only two possible routes for this to go. One is the parents agree to something, and the court will approve it. The other is the parents can’t agree, and the court will decide. Both of these can go poorly. I will discuss them separately below. The thing you have to know and understand is that the parents are no longer actually in charge of their children’s future. The court is, and thus the state. Once parents involve the courts, and it’s impossible not to when going through a divorce, then the children’s future is largely determined by the state. The process is not that different than if your kids were subject to a CINC (child in need of care) investigation. Every detail of your capabilities as a parent can be called into question, and some rare cases the courts have taken the kids from both parents. When it is all said in done, legally there is very little difference between a custodial parent and a foster parent.
This is usually the easy path. The judge will typically agree with anything the parents come up, so long as they don’t believe that you will be back in court later to fix the strange decisions that you made in the original plan. It won’t ever be submitted exactly as you intended. There are some unwritten things that have to be in any plan. There has to be a custodial parent. This is typically determined by which parent has the largest time share with the kids. In an equal parenting time or shared parenting agreement, this will typically be the parent who earns the least. These things are important, because they come into play later when child support is discussed. There are some other key things that will need to be in the plan to meet the state’s standards regarding a complete parenting plan. These include things about military service and the decision making process that will be used when the parents disagree. You can look up what your state has in it’s “boiler plate” for custody agreements. Some counties go a little farther with things, so you the best place to check for this information is your county’s court house, or it’s website.
If there isn’t some sort of state legislature to encourage shared parenting agreements, the court tends to be reluctant to award them. There are a few misconceptions about them that the court seems to accept as truth. One is that the parents rarely actually divide their time with the kids equally, and that the actual arrangement will be something more traditional. The other is that they increase conflict, because neither parent has the veto power over the other parent. This really just plays into the problem of handling domestic matters in court to begin with, because every case is viewed as a conflict that needs resolving. The courts don’t want to be bothered with every little dispute that comes up in raising kids, so it is easier to ensure that one parent has absolute power when it comes to making decisions. This presents a problem with shared parenting agreements, because they are rooted in the idea that both parents have a veto on pretty much all decisions that matter, and in small decisions the parent who has the kids generally makes them (which is logical).
I am grouping a number of different things into this. It includes decisions by agreement that come after the court has already indicated how it was going to rule as well as decisions fully made by the court. These situations often involve a guardian ad litem or GAL. You will know what a GAL and/or judge thinks is the right decision. At that point you are negotiating for better than is likely to happen in court, and not for what you want. This leads to agreements that are mostly one sided, and the other parent is just glad it’s not as bad as it could have been.
The court likes these decisions. They are the type that are rarely changed. Even if the couple come to court often, the ruling is almost always in favor of the custodial parent. If you pay attention to what’s going on. Custodial parents get charged with contempt of court for moving across the country with their children without court aproval. The remedies are as far reaching as they have to pay for long distance travel for visitation to they have to move back. It generally favors paying extra for travel, but with no enforceable clauses to make it happen. If a non-custodial parent runs off with the kids, then we get amber alerts and parental kidnapping charges which carry jail time. There is a huge difference in how the parents are treated from this point on. The custodial parent will have very few limitations on how they behave, and the only remedy for them not behaving well is to have a hearing to “show cause.” The judge has wide leeway on how to handle these types of hearings. The custodial parent usually is admonished at worst, unless they are directly defiant to the court.
There are a lot of factors to child support. The how, the why, and the realities are what I am going to try to cover here. For purposes of this discussion, child support is the money mandated by the court to be transferred from one parent to the other, and is legally defined as income that belongs to the children. That last part is important. It affects how taxes are handled, and it affects what the judge is willing to rule regarding child support. Even though you were allowed to budget how money was spent while married, once you are divorcing that money is by statute allocated to the children and handled in a specific way, which is generally an income transfer from one parent to the other. Below we will cover the different aspects of child support from the different layers of policy that govern it. This will include Federal policy, state policy, and local court policy. The layers come down to what is going to happen to you in court, and it affects how you can defend your position, and why it all seems the same, but is different from jurisdiction to jurisdiction.
The federal government has impacted child support in multiple ways. The most daunting of which is they have made it a Federal crime to not pay child support. They use the word willfully in the law, but try and explain the difference between willfully not paying child support, and not being able to pay child support to a judge. Judges have been known to rule that people are willfully unemployed or underemployed, which by extension would equate to willfully not paying child support by extension. They have also made it illegal to travel outside the state or the country in an effort to avoid paying child support. This again is trying to crawl in the head of the person. The actions aren’t illegal, but the reasons behind them. Without third party testimony of conversations that indicate your state of mind, the court is left to judge your intentions. Hearsay is generally not allowed in criminal court, but it seems when it comes to child support those rules aren’t enforced. The real issues is the courts will generally judge intent by results. So not paying child support will imply the intent to not pay child support. A whole lot of this relies on the court to use their judgement to determine your intent. Also remember that most people who don’t pay child support, and haven’t actually done so intentionally, don’t have money to hire an attorney that has much talent. Winning your arguments against a seasoned Federal prosecutor is going to be an uphill battle.
The Federal government has played a significant role influencing state polices as well. They have mandated that states work together to collect interstate child support ordered. They have empowered state courts to suspend drivers and professional licenses even when the ruling is in a different state than the one that the license is held. This is a direct attack on the ability of the license holder’s ability to earn income in the immediate future. The philosophy behind this and a number of the other tools used in the recovery of child support is that these “dead beats” have money or have access to money through friends and family to pay the child support, and this is leverage to get them to take advantage of those resources. Again this is not going to be the case for the truly poor person who owes child support, they simply aren’t paying, because they don’t have any way to pay.
Yet another way that the Federal government has made an impact is in what child support actually is. First it defined as money that belongs to the children. A concept that currently only applies when the parents are not married. This is not to mean that the parents have no say on how it is spent. It actually means that one parent has no say in how it spent, while the other parent has all the say. Their responsibility is to insure that the child is taken care of, not that the money received has any role in it. Now that definition plays an interesting role when it comes to taxes, because the children are your dependents, the money given to dependents isn’t a change in income for either party. This is a key difference between child support and alimony. It also plays a role in how high child support is, and the increasingly lower alimony payments. The end result is that typically there is a higher combined tax rate between the two parents, because the child support payer is normally the higher earner of the two. The IRS and other tax agencies have done studies, and found that alimony has a net loss in taxes, but child support has no impact on tax revenue. This is known as a policy driver. The tax code itself has no impact on how child support policy is developed, but the results or impact on taxes becomes a driving force in how to handle child support or alimony, because the same policy makers are responsible for taxes and spending taxes.
There are two things that could provide relief for the non-custodial parent that have been closed off. The first is that accrued child support cannot be forgiven. The custodial parent cannot go to court and ask for the child support obligation that has accrued be reduced or removed. Federal law has taken away the courts ability to do so, and the rational is that the money belongs to the children. Lets not forget that the money is going to other parent even if the children are long grown. The other is any form of bankruptcy. The child support debt is not considered a debt by the bankruptcy courts. For many non-custodial parents, child support is the greatest debt that they have, and its the very thing that is holding them back from being able to stand on their own. This avenue is taken away from them with no other alternative for seeking relief.
The final thing that the Federal government has done that affect child support is provide matching funds for child support recovery. The original intent looked like it was going for actual “dead beats,” but the end result is the states have forced most non-custodial parents to pay child support through their state dispensaries, and that it is behoove of them to force the parent who makes the most money to pay the child support, because they will pay more. This in the end has them “recovering” more, and get more funds for success from the Feds. The states did not have the intense need to assign child support to every case before they were getting paid to do so.
As you can see the Federal government have put most of the key pieces in place to either force or encourage the states to have policies that will have child support assigned to every case, and to enforce the payment of the support with all of their bureaucratic might. These laws are largely rolled up in the social security and welfare act, and the driving force is the expense of single mothers on the system being softened by having income from the fathers. The massive machine that has been put behind it isn’t justified by the savings. You can follow the politics and realize that there is a far larger agenda in play, and that agenda isn’t good for fathers in general, and specifically it isn’t good for the bread winner of any family in the event of a breakup. Know and understand that the Federal government has made your family a political token in the pursuit of votes.
The states have a number of responsibilities in all of this. Some of the biggest ones are edicts from the Federal government, and are enforced through the matching funds mentioned above, and of course by threatening to take away highway funding (the go to threat for Feds). They are required to have a state child support dispensary, and they are required to have a child support schedule or guidelines. There is some direction on how these operate, but for the most part things are left to the states. That doesn’t change the fact that the mechanisms that the states have chosen are remarkably similar due to the fact that it was easier to copy what other states have implemented to receive those special funds from the Feds. The states do have some leeway to make decisions on how to implement Federal guidelines, and how aggressively they pursue “dead beats,” but they have little discretion in how aggressively they assist other jurisdictions in pursuing “dead beats.” When you are unable to pay the full amount of child support, the state and county that your case is in has more to do with the consequences than the state and county that you live in.
States are held accountable to pursue child support in all cases where a single parent is getting assistance that is Federally funded. Some states take this really seriously, and others allow mothers (yes this is mostly mothers) to claim “absent father” and move on. There are a number of times that the custodial parent wasn’t taking anything from the other parent, because they knew that they couldn’t afford it. This is the case in poor families where the parents respect each other. The state will pursue child support to reimburse for aid. The custodial parent doesn’t receive much if any of the child support in these cases. The state rarely cares if the non-custodial parent can afford the child support, and their is very little aid for a “single” person who can’t make ends meet.
To get the matching funds mentioned above the states have to have a child support dispensary for collecting child support. The mandates don’t require the states to put all child support through these agencies, but they encourage it by calling all money that moves through it “recovered” child support. Which is what is needed to get matching funds from the Feds. Most states have made it compulsory that all child support go through the dispensary, and if it doesn’t, then it will be classified as a gift by the court. The legal machinations are dubious, but try to beat the system, and you will lose. The dispensary has the legal means to pursue unpaid child support using all the tools that government has provided, even though a large number of the states have privatized this aspect of child support. They usually get a cut of the child support. The courts will usually attach a fee to the child support to cover the charges from the dispensary, raising the child support paid by as little as a few dollars per month to 10% of the total amount paid. I will write about the history of how most of these agencies were started in another post, but just know that there is one man who has become very rich off of this system.
The other major responsibility of the state is to create a child support schedule and guidelines. These of course have a number of Federal requirements to meet for them to be complete. The states do have a wide leeway on the actual numbers that are used. The end results seem to vary dramatically. I am actually working on a generic calculator to show an estimate of what you would pay in each state. Its a long process, but the results so far have shown me just how far apart the states are in the final numbers that the non-custodial parent is obligated to pay. So like all good politicians, the legislatures in most states have found ways to remove themselves from this political hot potato. Most have made the state supreme courts responsible for creating the guidelines. They then simply approve them without any discussion. This gives them a fair amount of distance from the discussions that happen regarding child support. Most states use the USDA cost for raising a child tables to use as a baseline for child support, and then do magical math on it to make it look more complicated than it really is. Check your numbers out here https://www.cnpp.usda.gov/tools/crc_calculator/. They have become politically biased as they have become the standard for child support calculations. At my income with four children, it shows that 100% of my income is used for the children. None for anything else. This is a ridiculous position, but it greatly affects how much child support is taken from me and probably you, if you are reading this post.
The state have taken a number of things that used to require court orders, and given bureaucratic agencies the ability to take action without a judges approval. Suspending professional and driving licenses is one of these. Increasing the order temporarily to catch up for back child support is another. Many states have provided other “administrative” remedies that don’t require the court’s approval to execute. Child support collection is so important in our nation that due process is not necessary in the process. Many in the legal fields will try to explain how this is due process, but if you don’t get your day in court or have agreed to the the action, you have not had due process.
When it is all said and done, the states take every opportunity to receive the matching funds from the Federal government. Its free money, and who doesn’t like free money. Your fearless leaders have chosen to pass the buck of responsibility to the supreme courts of the state, and they in turn use boards to decide on the guidelines that will be followed. The politicians are able to hide behind the Federal guidelines for their actions. So far no one has to take responsibility for the pain caused by the system.
There isn’t a lot to say here. The general policy is for them to execute the state guidelines and statutes in the court. Most states provide a fair amount of the money from Federal matching funds back to the county, and to encourage the courts to act in the counties best interest, the counties give the courts a cut of that money. The more money raised through child support, the more money the courthouse has to spend. They become the tail end of the money funnel, but they are the leader
Larger counties will add their sets of rules or guidelines to extend or clarify what the state has done with their policies. Often these are presented to those entering the family court in a class and a pamphlet. The first thing you will notice is that there is an assumption that the results will look a certain way. This is your first clue of what your court results are likely to resemble. The common terms used are “standard visitation” and “minimum parenting time schedule.” The rest of the pamphlet will focus on how child support and visitation are not connected, and you are obligated to pay even if you are being denied visitation.
The courts are generally required to have a divorce class. It focuses on paying child support and getting along. It is generally a wast of time, because you are either already wanting to get along, or you don’t give a fuck. Either way, its a waste of time, and doesn’t change how people will behave at all.
All the things above come to play in court. The ultimate ends are the court whenever possible will use conflict to increase child support, because this increases the amount of money that comes their way. The state guidelines give many ways for the court to make child support higher than the calculator says. Ultimately the best way to increase child support is limit the access to the children for the party that makes the most money. If you review cases that have a trial, you will see that the end result is typically the same regardless of the path that is taken. Don’t believe a lawyer who tells you that each case is fact specific. You will find that most cases end up with the parent who earns the least having the kids most of the time, and the parent who earns the most will have them between 4 and 8 nights a month. The reason for this, is money. This is will generate the maximum child support, and thus the most money that is paid back to the court through the Federal matching funds to the states.
No one likes it except the non-custodial parents and the children. It has the least amount of child support, and the lowest amount of conflict years down the road. If it were the default situation, there would be far fewer conflicts to begin with that are worthy of the court’s attention. This is bad for lawyers, bad for the courts, and bad for selfish custodial parents. The laws as they are now, still have child support, and the custodial parent is defined as the parent who earns less money. If that isn’t transparent, than I don’t know what is. It is bad for the business of divorce for parents to be allowed to figure out how to raise their children together.
Who is it not bad for? Society is better off when both parents are raising kids. There are fewer unwanted pregnancies by young women and teens, there are fewer criminals. The end result of shared parenting is the next best thing to two parents staying together in one household. There are fewer suicides from parents who couldn’t live with the results of court. There are fewer murders of former partners and children. The only losers are the government. Even the custodial parent makes out better, because finances are negotiated between the parents, and the burden is shared more fairly. The custodial parents do not become as reliant on income that isn’t theirs. Custodial parents tend to have financial crisis as the children age out of child support.
It is time for us to fight for more shared parenting legislation. The type that makes it hard for a court to go with traditional rulings. Time for states to be forced to use the matching funds to support increased involvement by non-custodial parents, instead of funding the machines that keep parents from their children. It is time to hold our elected officials accountable for their decisions. This includes the decisions to pass the responsibility to non-elected bodies, so that they may not have to face the political consequences of such decisions.