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December 03, 2020

Deciding Support

How much child support should I receive if I’m separated from my spouse?

There is no set amount that is "enough child support" in any given case. Child support varies according to the needs of the child or children, the incomes of the parents, the parents’ reasonable needs and the accustomed standard of living of the child (or children), among other things.

How is child support set for the children of service members?

Child support is slightly different for service members than civilians because the military has its own guidelines that serve as a minimum. The ways such support could be determined are: by agreements of the parents, by military regulation, or by a court order. If you and your child’s other parent are able to come to an agreement as to support obligations, you should have a lawyer draw up a written agreement and both sign it. (These agreements are often set out in a separation or divorce agreement.) If you can’t agree, you will likely need a court order.

In absence of a court order, the military sets its own regulations that will need to be followed. These will set the minimum amount that a servicemember will owe in the absence of a court order or agreement between the parents.

My ex-husband isn’t paying me anything for our kids. He is in the military—can a legal assistance attorney help me file a lawsuit for child support?

No. Legal assistance attorneys can help you contact a soldier’s commander about nonsupport, but they cannot start court action for you. You will have to hire a civilian attorney, but a legal assistance attorney can help you find one. A legal assistance attorney may also be able to help you fill out the paper work if you want to file the court papers “pro se” (meaning, on your own) if you are unable to afford a civilian attorney. Most courts allow parents to file pro se support actions; ask your legal assistance attorney to find out if this is appropriate for your circumstances and the steps to take.

If the court is going to order support, how will it determine how much to order?

Under federal law, all states have guidelines for determining child support. These guidelines consist of formulas that take into account the income of the parties, the number of children, and some other possible factors. The formulas are based on studies of how much families ordinarily spend to raise children, and aim to approximate the percentage of parental income that would have been spent on child support if the family had not been divided by divorce. Courts plug numbers into the applicable formulas to determine the amount of support that should be paid.

For example, in Illinois, courts use the following guidelines:

Number of children Percent of net income devoted to child support
1 20%
2 28%
3 32%
4 40%
5 45%

When working with guideline formulas, how are the parents’ incomes determined?

Courts use different methods in different states. Some take into account the parents’ net income, while others look at gross income. Gross income is the parents’ income from all (or almost all) sources, including wages, investments, and other sources. Net income is equal to gross income minus taxes, health insurance costs, and perhaps union dues.

Calculating incomes for servicemembers can be challenging because the total amount of pay and allowances change with every military move, which could result in modifications to child support orders. For example, a servicemember stationed in Washington D.C. will receive a rather high housing allowance because of the area’s high cost of living. If the servicemember PCSs to Kansas, which has a lower cost of living, the servicemember’s housing allowance will drop significantly and could lead to a child support modification.

Can the court award more than the guidelines specify?

Yes, the court can order more or less support if special circumstances exist. Examples of reasons for awarding higher support include high child care expenses, high medical or dental expenses for the child that are not covered by insurance, and voluntary unemployment or underemployment of the parent who is supposed to pay support. Examples of reasons for awarding lower levels of support include support obligations from earlier marriages and large debts related to family expenses. Courts can also order a parent to pay, in addition to child support, direct expenses on behalf of the child such as medical insurance and educational expenses.

My kids will be with me during the summer. Will I continue to have to pay child support to my ex during that time?

In most cases, yes. Courts figure that many major expenses for the benefit of the child—such as rent, mortgage, utilities, clothes, and insurance—have to be paid whether the child is with the custodial parent or not. A full support payment is usually due. On the other hand, the parties may agree—with the court’s approval—on payments in different amounts during the vacation periods.

Who pays for our children’s medical care?

Military dependents are entitled to treatment at military hospitals and use of TRICARE health insurance for civilian health care providers. For more detailed information, contact the TRICARE office at the nearest base or online. Military dependents are also eligible for dental insurance; it is a voluntary election that the military member may choose, with the resulting premiums beings deducted from the member’s pay.

For military families, the court usually requires the custodial parent to use TRICARE and military medical facilities as much as possible. If one of the parents has medical insurance, that parent may be required to maintain this as well, in order to keep down the costs of the child’s medical needs. The judge will usually divide the remaining costs—the uncovered health care expenses that TRICARE and private medical insurance don’t cover—between the parents in a way that is fair. Often this means the parents divide these expenses equally or in a proportion to their incomes (for example, 80-20).

When does child support stop?

American law generally provides that child support, without an agreement or court order, ordinarily ends at the child’s eighteenth birthday (or twenty-first), depending on the specific law of your state. Some state laws say that support will continue until high school graduation (if the child will be older than age 18) or even through college. Child support may end earlier if the child is legally emancipated, joins the military, or gets married. If the support order is being entered by a court overseas, how long child support lasts will depend on the law of the country where you are living.

You can also agree to have the support continue for a longer period of time, or end earlier, in your separation or divorce agreement.

Our daughter is about to graduate high school and wants to go to college. My ex-husband says there is no way he will pay for it. I think we should split the costs just like we have split all her other support costs. Who is right?

Part of that depends on where you live. In about a third of states, college expenses are considered part of child support or child support obligations and extend through the child’s twenty-first birthday, which usually covers most of the college years.

If not, you should try to get the other parent to agree in writing—in a divorce agreement or court order—to pay for a specified portion of these expenses for each child who attends college. When doing so, there are a couple of things to consider:

  • How long should the college support obligations last? Four years? Eights semesters? To age 23?
  • What costs will be covered? Does the agreement include room and board, books, tuition, and other fees? What about traveling to and from home and expenses over the summer?
  • Are there any spending limits? Few parents want to agree to finance a college education for a child at any college or university. Consider putting a “cap” on the college costs, such as specifying that the maximum should be tied to the tuition of some nearby public institution.

My ex hasn’t paid child support in three months. What can I do?

The state and federal governments have a variety of techniques for enforcing payments of child support. The most common is wage deduction or garnishment, by which the employer sends a portion of the parent’s wages to a state agency that then sends the money to the parent who has custody of the child. You will need, however, a court order from an American court that sets the amount of child support in order to apply for a garnishment. You should talk to your attorney who can explain the options for you in your state.

If a nonmilitary spouse is having difficulty enforcing support obligations, that spouse may contact the servicemember’s commander for assistance. Depending on the military branch, a commander may have authority to order the servicemember to comply with court orders, separation agreements, or regulations for specific support obligations. However, how the branches go about doing this can vary: a solider may be order to comply with Army support requirements, but in the Navy, a sailor can only be counseled on his “moral obligation” to support his or her dependents. Getting a servicemember’s command involved should always be a last option, though, because such involvement may negatively affect the servicemember’s career and ultimately his or her ability to earn a living and comply with support obligations.

Additionally, the Defense Finance and Accounting Service (DFAS)—the agency responsible for paying servicemembers—has a system set up to process child support orders, which makes enforcement somewhat easier in the military than with civilian employers. The DFAS website explains their systems and provides specific instructions on enforcing support orders against servicemembers.

Can a solider do anything to stop a wage garnishment?

The only way is for the solider to go to the court that issued the support order and ask the court to remove or reduce it. The parent attempting to enforce the order will be notified of any such requests so that he or she can object.

Who gets to claim the child on his or her tax return?

If you’re divorced or legally separated, then the parent who had custody of the child for more than half of the year can claim the tax exemption and any child tax credits. For all other situations, the parent who provided more than half of the child’s support during the tax year can claim the exemption and credit.

These rules can be waived, meaning that you can agree to something else. If you are planning on doing this, it is important to make sure you talk to your attorney that you understand all of your rights and obligations and follow the proper IRS procedures.