Child Support PDF Print E-mail
Written by Robert Stelmock   
Thursday, 13 November 2008 13:36

I.    Overview

     Child support is money paid by a non-custodial parent to the custodial parent for the support of a minor child. In determining the amount of child support, Michigan has adopted a Statewide Child Support Guideline. Under a new federal law, the Judge and the Friend of the Court (FOC) must use the Guideline in setting support levels unless it would be grossly unfair to do so. The Guideline considers the incomes of both parents and the needs of the child based on national statistics showing what it costs to raise a child in a typical family of a similar income level. We will use the Guideline to calculate the amount of child support once a full disclosure of both parent's finances has been made. Child support is not tax deductible to the parent who is paying it and it is not taxable to the parent who receives it.

     Child support is based mainly on the child's needs (in conformity with the lifestyle of the parties), and the ability to pay. The FOC may calculate the amount (and may include a payment for a portion of daycare expenses). If your spouse is ordered to pay child support, an order of income withholding may issue compelling his or her employer to automatically deduct the amount from each paycheck. If a payer failed to pay court ordered support, he or she may be held in contempt of court. This may result in a jail term.

II.    How Much?

The variables that the court considers when setting an amount of child support include but are not limited to the following:

1.    Which party has physical custody of the children?

2.    The number of minor children?

3.    Income for Plaintiff?

4.    Income for Defendant?

5.    Who pays the health care for the children?

6.    Amount of day care expense?

7.    Number of overnights for the non-custodial parent, if more than 78?

8.    Number of overnights for each child?

9.    Whether Plaintiff or Defendant has a second family?

10.  Other support orders that payor is required to pay?

11.  If there day care then amount and who pays it?

III.    Payment of Child Support

     Child support should be paid through Michigan State Disbursement Unit (MISDU). This allows for accurate record keeping and prompt and in-expensive enforcement if an arrearage accrues. If direct support payments are made, record keeping and enforcement are made difficult. Many judges will refuse to grant a divorce unless the judgment requires that child support be paid through MISDU.  Automatic income withholding (wage garnishment) provisions are required in each temporary support order and in the support clause of the divorce judgment. This requires the non-custodial parent's employer (or other source of income) to withhold from his/her paycheck monies owing for child support.

IV.    Arrearage

     If, at the time the judgment of Divorce is entered, there is an arrearage of child support payments, medical expenses, etc. the Judgment of Divorce must contain a provision preserving this arrearage. In fact, if any monies are owing under any temporary order, they must be preserved in the Final Judgment of Divorce, or they are waived.

     In some cases, payment of the cost of a college education is negotiated as part of a final divorce settlement. However, without an agreement between the parents, the court cannot order payment for college expenses. However, once the agreement is made, it can be enforced by the court through its contempt (fines, jail) powers. We will discuss this issue with you in detail.

V.    Modification

     Child support is modifiable upon a showing of "changed circumstances." Support is usually ordered until the minor child reaches the age of eighteen or graduates from high school, whichever occurs last. In exceptional circumstances (such as the child's severe physical or mental disability), support may be continued beyond the age of 18.

     Child support is modifiable on the same basis as alimony, if a change in circumstances occurs. This support is usually ordered, until the minor reaches the age of 18 years, or graduates from high school, so long as the minor child regularly attends high school on a full-time basis with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full time basis with the payee of support or at an institution, but in no case after the child reaches nineteen years and six months of age, or until further order of the Court.

VI.    Enforcement for Non-Payment

     Enforcement of payments is instituted by an Order to Show Cause.  Other enforcement methods include interception of tax refunds, placing liens on the non-custodial parent's property, notification to credit bureaus of past-due support, and holding the non-custodial parent in contempt of court, which could result in a fine, jail, or both.

VII.    Failure to pay support and parenting time

     If a non-custodial parent is denied visitation, it is not the right of that parent to stop making child support payments. Support and visitation are separate issues and should not be played one against the other. If visitation is denied contrary to a court order, or if child support is not paid contrary to a court order, the court will enforce either on behalf of the aggrieved party. A non-custodial parent should not take "the law into their own hands" and withhold child support because he/she has been denied visitation. Conversely, a custodial parent should not deny visitation for the failure to receive child support.

VIII.    October 2008 New Michigan Child Support Guidelines

     In October of 2008 the Michigan Child Support Guidelines changed the way child support will be calculated in the State of Michigan. This formula will be applied to all new or modified orders entered after October 1, 2008.  The following contain some of the highlights of the changes to the October 2008 Michigan Child Support Formula:

1.    Additional children (biological or adopted) is a new 2008 formula term. Additional children include those from a relationship with someone other than the parent in the case in consideration. The old formula treats additional children differently than those for whom the parent pays support. Additional children are considered more fairly. A single way of accounting for additional children gives those in a parent’s household, or those who are a beneficiary to another support order, a similar amount of that parent’s income, and eliminates most of the disparity between support obligations in cases with another parent.

2.    Children-in-common is another new 2008 formula term. Children-in-common include the children the parents in the case in consideration have in common. The old formula treats them differently depending on whether the parents have a single or multiple cases for all of the children. The new formula calculates support for all of the children and prorates it for those in the present case.  This equalizes support for children in one or multiple cases.

3.    Parenting time offset (PTO) is also a new term. It eliminates “parenting time abatements” and “shared economic responsibility” in orders entered after October 1, 2008. The PTO allows the monthly “base support” amount to be offset to reflect some of the cost shifts and savings associated with the children spending time with both parents. The monthly support obligation will consider the time a support payer spends exercising parenting time rights, when establishing a “base support” amount. Base support is the normal day-today costs for raising children, such as food, clothing, and shelter. The PTO doesn’t apply if the children reside with a 3rd party.

4.    Annual ordinary medical (AOM) has increased. In order to reimburse a child support recipient’s qualifying uninsured medical expenses within a calendar year, every support order entered after October 1, 2004 set an AOM amount for the children, and apportioned payment of this amount between the parties according to each parent’s percentage of the family income. The support payer’s portion is added to the base support amount. The support recipient directly contributes as uninsured medical expenses occur.  Uninsured medical expenses that exceed the AOM amount (extraordinary medical) cannot be enforced by the FOC until the support  recipient has spent the AOM amount. AOM has increased from $289 to $345 for one child, from $578 to $690 for two children, from $867 to $1034 for three, from $1156 to $1379 for four, and from $1445 to $1724 for five or more children. The 2004 formula amount set in orders entered before October 1, 2008 will apply, until modified.

5.    Extraordinary health care expenses is a 2004 term that is still relevant. Extraordinary expenses include uninsured medical expenditures that exceed the “annual ordinary medical expense” amount. Extraordinary health care expenses cannot be enforced by the FOC until the support recipient presents receipts showing he/she has spent the annual amount on “ordinary medical expenses”. All extraordinary expenses should be apportioned between the parents according to the medical expense percentages established in the support order, including uninsured medical bills incurred by the payer, while spending time with the children.

6.    Health care premiums are prorated based on the full cost of health care. The new formula determines each parent’s monthly premium attributable to the children by dividing the premium by the number of individuals covered (including the parent) and multiplying that number by the number of children in the case. The formula prorates each parent’s monthly premium attributable to the children by multiplying it and the other parent’s percentage of family income. The formula offsets the prorated premiums attributable to the children by subtracting the support recipient’s share of the payer’s premium from the payer’s share of the recipient’s premium. A positive net result means an additional amount must be paid to cover the payer’s share of the support recipient’s premium. A negative result means a reduction in base support to offset the support recipient’s share of the payer’s premium.

7.    Childcare charges must continue through August 31 following the child’s 12th birthday, unless special circumstances exist. The new formula requires parties to notify each of other of childcare amount changes, and each other and the FOC when childcare stops.

8.    The “minimum threshold for arrearage payments” has changed. The recommended monthly repayment amount is 2% of the total support arrearage at the time of the review, but no less than $50, nor more than ½ of the current monthly support amount.

9.    The shared economic formula will commence at 78 overnights instead of the previous 128 overnights.

To learn more about these and other new changes, please call at 734 927-9782 so we can discuss how the new guidelines will effect your matter.  

The information you obtain at this site is not, nor is it intended to be, legal advice and does not establish an attorney-client relationship. Please consult the Law Offices of Stelmock & Associates, PLLC, 734 927-9782 for individual advice regarding your own situation.
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