Child Support: Your Questions Answered

by Jill Chancey | Oct 18, 2024 | Alabama, Child Support, Children, Custody, Divorce, Family, Family Law

Child Support: Your Questions Answered

We get a lot of questions about child support here. It tends to be one of the most contentious elements in a divorce. We also help unmarried parents when they come to us looking for a fair arrangement for both child support and custody. Unfortunately, there are no quick, easy, or universal answers. Most of the initial answers to general questions are “it depends,” but given the facts of the case, an attorney can provide you with a more specific answer.

A brief history of child support

In the United States, laws governing and mandating child support were initiated around 1950 as an effort to reduce the number of children living in poverty. This mission has expanded to all parents, not just those living in poverty. Essentially, our government has deemed it a public good that all children have sufficient food, shelter, health care, and the necessities of life. This is the primary mission of all agencies involved in child support, from the federal to the state level. Currently the federal Office of Child Support Services cooperates with state agencies and oversees the national child support system. Their mission is to ensure that children receive support from both parents, even when they live in separate households.

At the international level, the 1992 United Nations Convention on the Rights of the Child is a binding convention signed by every member of the UN, including the United States. In short, it declares that the upbringing and development of children is the common responsibility of both parents, and an adequate standard of living is “a fundamental human right of children.” One might be surprised that this was codified into law so recently; it seems like a matter of common sense that children need someone to care for them, and an adequate standard of living.

Child support in Alabama

In Alabama, the Department of Human Resources offers assistance with child support issues, such as locating non-custodial parents, support orders, and the collection of child support payments. Although DHR’s mission has evolved over the years, it was initially founded in 1935 and continues to administer programs that aid families, such as ALL Kids health insurance, Child Protective Services, and Food Assistance. For most of our clients, their primary interaction with DHR is the Alabama Child Support Payment System, a program under the umbrella of DHR. That program facilitates the payments and disbursements for each parent that pays through their office. We always recommend that our clients pay through this system so that their payments are officially documented and the records are easy to access.

Okay, but how much will I pay?

Well, it depends. The guidelines for child support calculations rely on several figures: the income of each parent; the cost of childcare; the cost of health insurance; and the difference between each parent’s income. When all parties are totally transparent about their income and expenses, the answers are pretty straightforward. We often find ourselves, however, having to subpoena income and employment records for people who are uncooperative. We help both married, formerly married, and never-married parents get the information needed to get a correct answer.

That said, sometimes there are special circumstances that require a deviation. In some states, child support payments end upon the child’s turning 18. Here, the support continues until the child turns 19. However, if a child is disabled and will require lifetime support, that support may be extended indefinitely. There may be other mitigating circumstances, such as one parent being in prison and lacking income entirely. If one parent incurs significant travel expenses to exercise their visitation, this may result in an approved deviation from the standard. These deviations are usually negotiated by the parties’ attorneys and have to be approved by the judge. If you have unusual circumstances, this is certainly something to discuss with your attorney.

Anyone who has watched the cost of living increase knows that a child support payment that would have been sufficient in 2010 would likely not be nearly enough here in 2024. In addition to the overall changes in cost of living, one or both parents may see a significant change in income. If this happens in your situation, you can request the courts made a modification to your child support (either paid or received). We can help you assess whether the change is significant enough to go to court for a modification. We frequently assist clients with this process so that the numbers align more closely with the incomes and expenses of each parent.

What if I don’t pay my court-ordered child support?

If you are not paying your court-ordered support, you will find yourself in arrears. A person in arrears is facing not only interest charges, but can be taken to court for contempt. Many people who owe support have it automatically deducted from their paychecks and sent to the Alabama Child Support Payment Center to be sent to the other parent. This is a relatively easy, no-conflict way to make those payments. If you are in arrears, a portion of your pay may be garnished to go towards your debt. This can even happen if you move out-of-state. Your tax refund may also be garnished by the IRS, or a lien placed on your property. You will stay in arrears for as long as it takes to pay your debt, even if your children are grown and over 19.

In Alabama, parents who refuse to pay child support and have the ability to do so can be charged with criminal “nonsupport”, which could result in fines or a jail sentence. This is pretty uncommon, but it is on the books. Just something to be aware of!

At the federal level, there are circumstances in which a person in child support arrears may be sent to prison. There are several conditions on this; mainly it involves refusing to pay child support for a child who lives in another state. Being past due for a year or for more than $5000 is a criminal misdemeanor; being past due for two years or more than $10,000 is a criminal felony. In other words, if you are thinking of leaving the state to avoid child support? That turns your situation into a federal case.

However, this is only applicable in specific cases; the child support enforcement must be addressed at the local or state level before concerns are raised to the federal level.

How much can raising a kid actually cost?

Frequently, non-custodial parents will be angry and resentful that they are giving money to their child’s other parent. It may seem unfair, or like they’re providing money to the ex-partner for luxuries. However, it’s important to remember that raising children is very expensive. How much does it cost to raise a child born in Alabama this year? The estimates vary, but range from about $200,000 to $375,000. It’s easy for a non-custodial parent to not have a firm grasp on the day-to-day costs of raising a child, but the numbers don’t lie. Your child needs support from both parents to survive, and thrive.

If you’re feeling resentful about paying your child support, try to reframe the expense as feeding, clothing, and educating your child. Additionally, the best estimate right now is that the cost of replacing a full-time parent with a professional cook, cleaner, tutor, chauffeur, nanny, and nurse is estimated at around $115,000 a year. Raising children is expensive, and the primary caregiver is doing a lot of unpaid work. Truly, the way child support is calculated here is not unreasonable.

It may be hard to do this, but separating your child’s needs from your emotions about the end of your relationship with the other parent is going to lead to a better attitude about sharing expenses with them. We always recommend therapy or counseling to our clients going through difficult times, and this is certainly a topic to raise with yours. It’s best for everyone to approach the issue with an eye to what is best for your child.

As always, we are here to help. Whether the other party is an ex-spouse, ex-partner, or merely a co-parent, we know what steps to take to get an equitable child support and custody order in place. Give us a call at 251-432-7909 or request a consultation here on the website and we can get started.

Author: Jill Chancey

Jill Chancey is a New Orleans native who has called Mobile home since 2019. She attended Trinity University in San Antonio, majoring in Art History and English. She also has an MA and a PhD in Art History. After earning a certificate in Paralegal Studies, she pivoted to the legal profession after several decades as an art historian. In her free time she enjoys science fiction, art museums, and collecting and reselling vintage design.

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Preparing for Divorce: Essential Steps

by Jill Chancey | Sep 23, 2024 | Divorce, Family Law, Mobile

Preparing for Divorce: Essential Steps

Consult an Attorney

Do it sooner, rather than later. Don’t wait until you’re at a crisis point. You don’t have to hire one at the consultation, you can get our legal advice and then reach out to hire when you are ready. You don’t even have to be entirely sure you’re ready to divorce, but if you’re considering it, it’s a good idea to be prepared.

In a consultation, you’ll talk about your case, your options, and how our fee structure works. You can ask questions about child support and custody issues, for example. Start making a list of questions to ask your attorney, and bring something to take notes with. You’ll be getting a lot of information quickly, it’s a stressful time in your life, and taking notes will help you remember everything.

Please note that we practice in Mobile County and Baldwin County. If you live elsewhere, you can search the Alabama Bar Association website for attorneys who practice in your area.

Gather your community

It’s a really good idea to find a counselor or therapist for yourself; having someone neutral to help you talk through the process can be beneficial. Some people will attempt marriage counseling when they reach this stage. If it’s an amicable decision, having someone to talk both of you through the process may be helpful. If your situation is high-conflict, putting yourself in the way of more conflict may not be the best idea. Some couples appreciate help negotiating the exit process. If you try it and it feels counter-productive, you don’t have to continue. As with all counselors, your first one may not be a good fit. You can always interview several counselors to find someone you are comfortable with.

There is no shame in getting a divorce; don’t be too embarrassed to let your closest friends or family in, particularly those that you know will be supportive and loving. You don’t have to do this alone. Even if you feel like you made bad choices, or should have known better, or whatever self-blame you might be feeling, those people who love you will be on your side.

Don’t forget self-care. This may sound trite, but you need to take care of your mental and physical health. You may prefer exercise, meditation, knitting, or pickleball. It doesn’t matter what it is as long as it gets you out of your day-to-day and lowers your stress level. Keep those doctors’ appointments and do your best to eat well and get enough sleep.

Financial Preparation

We understand that sometimes one spouse will withhold financial information from the other. Do what you can here, but don’t let a lack of access to financial data stop you from planning. You’ll want to gather basic information from all of your bank accounts and your credit cards – know your account numbers and how to access all of the information. Do you and your spouse have retirement accounts? Those will be important, too. Do you have debts, such as a mortgage, student loans, or a credit card? Be able to lay your hands on those details as well. It’s a good idea to know who exactly is on the deed to your home, and whose names are on the mortgage. You can pull a credit report at this point if you want to be sure you’ve covered all your bases, and you can freeze your personal credit at this point if you feel you need to. You can also get copies of any jointly filed tax returns directly from the IRS if you do not have copies.

Do you and/or your spouse own a business? You’ll want to have information about the value of those businesses, tax returns if you can get them, and who exactly owns them. The more we know about your financial situation, the better we can advise you on your steps moving forward.

Do You Share Children?

Think about what kind of custody agreement will work for you and your children. Who is the primary caregiver? Who takes the children to doctors, school, and sports? Who will make decisions about school, extracurriculars, and religious practices? These are all issues that will need to be considered.

Be aware that permanently moving more than 60 miles away from your home may not be allowed by the court. Except in cases of verified neglect or abuse, both parents are entitled to time with and regular access to their children. We also get a lot of questions about grandparents’ rights to children in divorce cases; these will not be addressed in a divorce agreement.

It’s best to stop drinking and using any recreational drugs altogether while you are going through this process, as these can be used against you in a custody case. Be aware that even legal cannabis products will result in a positive drug test. It is not uncommon for a judge to order a drug and/or alcohol test if the other party requests it. Hair and fingernail tests are the most common types ordered.

Do not discuss your marriage or divorce plans with your children except in the most general terms. Do not say bad things about your spouse to your children. Try to remain neutral, loving, and supportive. This will be difficult, but this is also why you have found a counselor and gathered a supportive community of friends and family. The adults in your life should be your sounding board.

Seek counseling for your children, as this will be a difficult transition. They probably know that all is not well with their parents, and in many cases may be relieved that they don’t have to live with the stress of unhappy parents anymore. As with your own counselor, don’t hesitate to interview a few counselors or therapists until you find a good fit.

Take Some Precautions

You should change passwords for your financial accounts, your email, your phone, and icloud (if you share a family data plan). However, you cannot lock your spouse out of joint accounts by changing the password or taking them off of the accounts. Consider getting a new email for the purpose of communicating with your attorney and any other professionals involved in your case. This can make it easier to keep track of your conversations with your team.

This may be painful, but here goes: lock down your social media – Instagram, Facebook, everything. Change your settings to “friends only” and then have a look at your friends list and consider whether someone knowing about your day-to-day life during this period will put you at a disadvantage, or cause unnecessary drama. You can, for example, create a smaller friend group for certain posts. It’s really best to not discuss your case on social media at all. You may want to consider deleting your account altogether if you cannot resist the urge to post!

If your spouse is being confrontational, aggressive, abusive, or otherwise behaving badly, document this as well as you can. Save the evidence in a separate, cloud-based account. Screenshot text conversations (make sure the date is visible). Pro Tip: Alabama is a one-party state, so you can record conversations without your partner’s permission if you are a part of that conversation. You cannot, however, hide a recorder to record their conversations with other people. That is illegal. Some people think about hiring private investigators if their spouse is cheating or doing anything illegal. It’s probably best to ask an attorney’s advice on whether this is a good idea and will be worth the expense.

Are You in Danger?

First and foremost: call the Domestic Violence hotline for help with a safety plan (1-800-799-7233). In Mobile County, you can call the Penelope House (251-342-8994). They are best equipped to help you exit safely.

If you are in danger, do not tell your spouse of your plans until you are ready to move out or have actually left. In an abusive relationship, this is a particularly dangerous time. Check your vehicle for tracking and recording devices – or ask a mechanic to do so. You can remove these. It’s a good idea to change your phone settings so you cannot be tracked with the phone’s GPS. You can also get a pay-as-you-go phone for your own use, so you have a phone that is not on your family phone plan.

We often hear that a spouse has told a client that if they move out, that’s considered “abandonment” and they will lose all right to their house, property, and children. This is a common misconception. Your safety is paramount, and you are allowed to take your children and move out. Your safety plan may include limiting the list of who can pick up your children at school. The other parent is generally allowed to be on that list unless a court order is in place. This is a little bit of a tricky area and a good topic to seek legal advice on.

Things to Remember

The great Russian novelist began the novel Anna Karenina by saying, “All happy families are alike; each unhappy family is unhappy in its own way.” You can’t expect your divorce to be like anyone else’s. Everybody’s marriage is different, and so everybody’s divorce is different. Recruiting legal and personal counsel to help you through these troubled waters will help you come out the other side in a better place.

Author: Jill Chancey

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What is a No-Fault Divorce?

by Jill Chancey | Sep 3, 2024 | Alabama, Child Support, Custody, Divorce, Family, Family Law, Mobile

What is a No-Fault Divorce?

Simply speaking a no-fault divorce is one in which the parties are not required to give the court specific reasons for getting divorced. A couple can get divorced if they simply cannot get along anymore, rather than having to prove that one spouse did something wrong.

The no-fault divorce does not have to be an uncontested divorce, however. The law applies whether you are going to court or not. Here at Herlihy Family Law, we normally do not name any reasons other than incompatibility and breakdown of the marriage when we file a divorce complaint or agreement.

Understanding No-Fault Divorce

One concern people have when they come to us is whether they have to prove they have a legally approved reason to get divorced. In Alabama, you simply need to state that you’re incompatible, so there’s no need to give details to the court. In the past, some courts required proof that a marriage had failed for specific reasons to grant a divorce.

This might have consisted of providing proof of infidelity or abuse, for example. Luckily the law has determined that divorce is a personal decision and you don’t have to convince a stranger to let you get one.

A Brief History of No-Fault Divorce

Some people are concerned that no-fault divorce is a new idea that is contributing to the divorce rate. The first no-fault divorce law in the Western world was enacted in Prussia in 1757. In the modern era, no-fault divorces date back to the early 20^th century. And in the US, the first no-fault divorce law was enacted in 1969, over 50 years ago. Within ten years the no-fault option was nearly universal in the United States. The divorce rate in the US has actually fallen since the 1970s.

Regardless, one of the main advantages is that these laws can decrease the adversarial nature of a divorce. The previous model tended to increase conflict and even resulted in perjury and false accusations. For example, judges now do not need to determine whether a party has been unfaithful.

In the United States, every state permits no-fault divorce, although the requirements may vary. Some require a specific period of separation, for example. In Alabama, this is not the case. Alabama does require a six-month residency for at least one party. Fortunately, the pre-Civil War Alabama law that required the approval of both houses of the state legislature to grant a divorce is no longer on the books!

Benefits of a No-Fault Divorce

The no-fault option allows the parties to separate the negotiation process from the emotional desire to assign blame or be proven blameless. We know that both parties may be angry, or hurt, or feel betrayed. This doesn’t have to carry over into the divorce negotiation. The emotional side of divorce is better handled by experienced and trained counselors and therapists. Your attorneys are only qualified to handle the legal side of the matter.

If both parties are ready and willing to get divorced, they can choose an uncontested divorce. This is a great option for couples who are low-conflict and able to negotiate in good faith. If it’s possible to negotiate an agreement without going to court, it is far less expensive and time-consuming than a contested divorce through the courts. It’s also likely to result in less ongoing conflict.

Does a No-Fault Divorce Mean I Can’t Even Mention My Spouse’s Faults?

Not necessarily. In an uncontested divorce, your spouse’s faults are irrelevant and do not come into play at all. If the parties are not in agreement and choose a contested divorce, the court may consider bad behavior, such as domestic violence and drug or alcohol abuse, when the case comes to trial. No-fault divorce means neither party has to prove the accusations to actually get divorced.

They do, however, have to provide evidence to back up any accusations if they choose to bring these to the attention of the court and are asking for a decision based on these behaviors. This is most likely to come into play when children are involved, as the safety and well-being of the parties’ children come first in making custody decisions.

If there is evidence of mental illness that endangers the children, this could also become part of the case in a contested divorce. It is not enough to say the other party is being treated for a mental illness, though. Many people find themselves in need of help with depression and anxiety, for example, especially when they’re in a failing marriage.

What matters is that they are getting the help they need and are capable of being good parents. Simply seeing a therapist is not grounds for losing custody.

The Uncontested No-Fault Divorce

Why would you need an attorney to help in a no-fault uncontested divorce? There are two main parts to the process. We start by helping you negotiate your divorce agreement with the other party or their attorney. Once the agreement is in place, we then generate all of the documents required by the court and file them for you.

Sometimes both parties will be in perfect agreement about everything, so we don’t have to help negotiate at all. We draw up the documents, everybody signs, and we file them with the court. After 30 days, they will go to the judge for approval.

You might think (or hope!) that it’s as simple as filing one signed agreement, but several other documents must be filed. This can be up to 7 or 8 documents, depending on your circumstances.

At Herlihy Family Law we have many years of experience handling divorces in Mobile and Baldwin Counties and know exactly what the state, county, and individual judges require.

The Contested No-Fault Divorce

If the parties are not in agreement, your attorney will file a divorce complaint, or respond to your spouse’s. We then guide you through the whole process up to and including a court trial if it comes to that.

Even in the case of a contested divorce, you do not have to persuade a judge to allow you to get divorced. The judge’s job is to determine a fair and equitable agreement based on the law and the facts presented to him or her.

What if I Really Want an At-Fault Divorce?

It’s really not necessary to name and blame in most divorce cases. Consider whether you truly want all of your faults exposed as well, and whether you want all of the unpleasant details of your marriage on the record.

Playing the “blame game” is going to distract you both from the legal issues we are here to assist with. It’s also going to end up costing more money if your attorney has to get involved with proving (and defining!) infidelity, for example.

We do understand the desire to tell the world about your spouse’s terrible behavior; however, fault does not typically affect the outcome of the divorce as much as you might think it should.

Since I Don’t Have to Prove I Deserve a Divorce, What Do I Need to Consider to Move Forward?

The most difficult parts of a divorce agreement are often child custody and child support. You can search our blog for more information about these issues. Some agreement terms can be entirely individual, whereas others must conform to the statutes and standards.

For example, some statutes determine the amount of child support. This is based on a formula that takes into account both parties’ incomes, the cost of healthcare, and the cost of work-related childcare. The amount determined can be altered by agreement, but the judge will need a reason for the deviation from the formula.

The rest of the agreement covers property, assets, and debts. The goal here is an equitable distribution, which doesn’t necessarily mean a 50/50 split. Determining factors include the length of the marriage, what assets and debts a party brought into the marriage, and the income of both parties during the marriage. Pensions and retirement accounts are taken into consideration as well. This can also be very contentious, but we are experienced negotiators and handle this every day.

We also ensure that both parties come to an agreement about the division of personal property, cars and other vehicles, and their pets. (Yes, you can put your pets in your divorce agreement!).

Ready to Talk to an Attorney?

Call the office at 251-432-7909 to schedule a consultation, or go to the homepage of our website and click on “request a consultation.” We are open five days a week and can offer both in-person and Zoom meetings. In a consultation, you will discuss your case, your options, and our fees.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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