Modification of Child Support
The calculation of child support is almost always completed pursuant to what are known as the Indiana Child Support Guidelines. The Guidelines discuss what sources of income should be utilized in calculating support and how certain expenses should be apportioned, among other topics.
The elements of a child support calculation include:
- Weekly gross income;
- The cost of health insurance coverage for the child;
- Child care costs; and
- The number of overnights the non-custodial parent exercises per year.
The Indiana Supreme Court offers an online calculator for non-attorneys if you would like to calculate child support yourself.
Modification of Child Support
It is very important that all modification of support are approved or ordered by the court. DO NOT rely upon an informal agreement with the other parent to pay or receive a different amount of support. As far as the legal system is concerned, child support will continue to accrue at the rate set forth in the most recent order.
The entry of a child support order does not mean it can never change. In fact, it is common for a child support obligation to change throughout the course of a child’s life. Incomes and circumstances will change. The question is when can child support be modified.
Indiana law sets forth two situations when it is appropriate to change child support. The first situation is what can be referred to in shorthand as the 12/20 rule. This law sets forth that child support may be modified if 12 months have passed since the most recent child support order AND there is a twenty percent difference in the child support obligation. The 12 month part of this law is straightforward – one year must elapse since the prior court order. The second part of the statute means that the child support calculation must result in a 20 percent change up or down in the child support number. For example, if the child support obligation is $100 per week, then to obtain a modification, child support must either increase to $120 per week, or decrease to $80 per week.
The second situation when child support can be modified when there is a substantial change in circumstances. What does that mean? Well, the statute in question does not define what exactly constitutes a substantial change in circumstances. However, in practice, this will usually mean that there has been a significant change in the income of one or both parents. The most common situation is when one parent becomes unemployed and can no longer afford the current obligation.
When does child support stop? The short answer is when the child turns 19 years of age. However, this is not an automatic occurrence. It is important to obtain a court order or submit an agreement between the parties to the court which sets forth that the child should be deemed emancipated.
So if your child turns 19, it’s all done, right? No. The obligation to contribute to college expenses survives the emancipation of the child.
An exception to the emancipation age of 19 is if the child is disabled in some fashion. In that circumstance, a court can find that it is appropriate that child support continue.
You paid your own way through college and want your child to do the same. That’s permissible, right? Not if you are a divorced parent or the parent of a child born out of wedlock. It is somewhat of a quirk of our legal system that a child has more of a right to contribution from a parent to college expenses if the parents have divorced or never been married. That is not to say it is wrong – a post-secondary education can be very important – but it is an aspect of the law that can catch some people by surprise.
- So how are college expenses divided?
The most common manner is by agreement of the parties. For instance, the parents can agree to equally divide the total costs, one parent can agree to pay more than 50%, or perhaps both parents and the child will contribute.
If an agreement cannot be reached, then one parent may petition the court for an order as to the division of expenses. A hearing on this issue will typically primarily involve the presentation of evidence as to the parties’ respective incomes and proposals as to how college expenses should be divided. After consideration of the evidence, the judge has the discretion to enter an order dividing expenses.
The most common division of expenses you may hear about is to divide the cost of college in to thirds. This means the child and each parent each pay 1/3 of the total cost. Another commons apportionment of costs is that the child pays 1/3, and the remaining 2/3 is divided between the parents according to their respective percentage of their total gross income.
- What if your child wants to go to a private or out-of-state college? Can you be ordered to pay a share of a $40,000 per year cost?
Generally speaking the answer is no. Many courts will set the maximum amount to be divided by what is informally referred to as the “IU standard.” This means that the total cost to be considered for division will not exceed the cost to attend Indiana University for one year, inclusive of room, board and books. If your child wants to attend a more expensive school and you either do not approve or cannot afford the cost, it will usually be incumbent upon the child and/or the other parent to cover the increased expense.
The above does not mean that under all circumstances you will have to pay for college. Judges are aware of the fact that sometimes there are only so many dollars to go around. If your income is not sufficient to pay for college or you have other unavoidable expenses, a court may find that a contribution to college is not feasible.
Who pays for soccer fees? What if your child wants to take violin lessons? Can both parents be expected to contribute?
Generally speaking the answer is yes. It is expected that a child will participate in extracurricular activities and that both parents should contribute to those expenses. Unless there is a specific activity in question at the time of the agreement or order, it is very difficult to predict what activities in which a child may want to participate. The common language in agreements and court orders is that parents will divide “agreed upon” extracurricular expenses.
So that’s that, right?
Unfortunately it is not always that easy. Situations arise when one parent believes that an activity is too expensive or otherwise objectionable (e.g. too dangerous, too time consuming, etc.). The difficulty arises when one parent refuses to contribute to an activity. Given the vague “agreed upon” language, there is no set rule that a parent must contribute. The choices available are to either shoulder the entire cost or petition the court for an order.