Child Support

If we each have the kids 50% of the time, is it true that neither of us will have to pay child support to the other?

No, this is not always true. The courts determine child support, at least in Arizona, based on two factors: income and time with the children. The special needs of the child or children may also be taken into consideration.

In terms of ability to pay, the courts look at overall income, not just the paycheck. For instance, if a person is living for free in a parent's condo, has a large inheritance, is drawing down in principal on an asset, or has a hefty stock portfolio, the court may also view these as sources of income and use them to calculate child-support awards. Sometimes, the court may look at a party's earning capacity and impute that income to that party.

Let's assume, in a case where time is split 50/50 between the parents, that the husband is making $200,000 a year and the wife nothing. Does that mean he will be forced to pay child support? Probably, but if the wife has traditionally worked and contributed to the family's financial "pie" instead of staying home to raise children, the court may consider the wife's earning capacity.

There is no one clear answer when it comes to child support; every case is uniquely different. This is so even in Arizona where, typically, child-support awards are based on a formula as set forth in the Arizona Child Support Guidelines.

How is child support calculated?

Child support in Arizona is determined by the Arizona Child Support Guidelines. These guidelines are located in Arizona Revised Statutes ?25-320. They can also be found at www.supreme.state.az.us.

Child support is based on the gross income of each of the parents. Income includes money from all sources including employment, retirement, disability, investments, businesses and so forth. The income of both parents is combined, then the basic child support is determined, and each parent is assessed a part of the child support based on the percentage his or her income is of the combined income.

Additions are made to the child support for health insurance for the child or children, daycare expenses, children over the age of 12, and extraordinary expenses. After the child support is determined, the parent paying the child support is given an adjustment based on the amount of time spent with the child (costs associated with visitation). If there are transportation expenses because a parent lives out of state, these are also allocated.

The judge also determines which parent is entitled to the dependency deduction on his or her taxes for the child or children. This is generally based on the percentage of the child support that is being paid by each parent. Deductions for the child or children can be alternated between the parents, based on the percentages of the child support paid by each parent.

An Order of Assignment is entered in most cases. This Order directs the employer or payer of income to deduct the child support from the salary, wages or other payments to the parent ordered to pay child support and to pay it directly to the Child Support Clearinghouse. The payments are forwarded from the Clearinghouse to the parent entitled to receive the support.

Every month, my ex-husband is late with his child-support, or the check bounces, or he gives me half the amount saying he'll give me the rest later. I am considering withholding visitation from him until he complies. Do you have any suggestions?

This problem typically occurs at a time when communication between the parties is either about to break down or has already collapsed. Lack of communication can lead the parties to misinterpret each other's motives or actions, resulting in an escalating spiral of retaliatory behavior, which in turn will only generate litigation.

We suggest that the ex-wife attempt to meet with a mediator, who can help you focus on what is best for you and the children in order to get on with your lives. True financial problems, resulting from supporting two households, may be contributing to this dispute. Or it may be that the parties are trying to push each other's buttons.

In Nirenstein Garnice PLLC's role as either an attorney or mediator, we strongly recommend, for a variety of reasons, that this woman not withhold visitation. First and foremost, it would be contrary to the children's best interests. Children need the stability of ongoing, predictable contact with both parents, especially at this stage when their lives are in a state of flux. It is crucial that the children not be exposed to open hostility between their parents or used as pawns.

Secondly, it is not in this woman's own interest to withhold visitation. Certainly in Arizona, a court or custody evaluator will not look kindly on a parent who, especially for financial reasons, violated a pendente lite (a temporary, pending the litigation) order, agreement, or the status quo concerning visitation. If she violates a visitation order, she may be guilty of interfering with custody, an act that can carry substantial criminal penalties. Further, escalation is a dangerous game, not only due to the uncertain judicial response, but also to the unpredictable spousal reaction. The spouse may "counter-punch" by seeking custody or assuming an intractable position on other issues important to her. And, the more litigation escalates, the less money there will be for the parties and their children after the divorce is over and the attorneys are paid.

We would advise this woman to deal with her husband in a very straightforward manner by approaching him directly to rectify the problem. If he refuses to go to a mediator, she would be better off taking him to court to enforce his support obligation than interfering with his visitation.

If Nirenstein Garnice PLLC represented the father, or if Nirenstein Garnice PLLC could confer with the parties as his mediator, we would suggest to him that it is not in his self-interest to use non-payment of child support as leverage. Not only does his wife have remedies through litigation, but in Arizona, he might be compelled to pay her attorney's fees (as well as his own) for enforcing his obligation. Further, the more polarized they become, the more she will oppose whatever he seeks out of the divorce settlement, even terms she might otherwise agree to, in retaliation and for whatever leverage it gives her. Nonpayment of his support obligation may lead to the judge developing a negative opinion of him.

We also encourage him to recognize that his failure to fulfill his child support obligations -- which might be subject to modification -- is not the way to express his dissatisfaction with the arrangements.