4 Facts About Child Support and Garnishment

If you’ve been ordered to pay child support, you probably have a lot of questions. How did the court determine that you should pay this amount? What happens if you fall behind on payments? Could you go to jail or lose your license for not paying child support? What can you do if you can’t afford to make the payments you’ve been ordered to make? All these questions and more are covered in this article.

How Child Support Is Calculated

State laws determine how to calculate child support orders. Different states use different methods to calculate child support obligations. The state law that applies will be the law of the state where you live.  This only applies to the initial establishment of the order. If you move to another state after receiving a child support order, the order from the first state will still be applicable. If both parents leave the state that initially entered the order, it's more complicated, and it's possible for a new state to modify the order.

Don't confuse the calculation of a child support order with child support enforcement. Title IV-D of the federal Social Security Act requires every state to have a child support agency. Any state agency for child support will enforce the child support orders of any other state. The federal government requires every state to publish its child support guidelines. Federal law also requires every child support order include a medical support provision.

States use one of three methods to calculate the required child support payments:  

• The flat percentage method, 

• The Melson method, or

• The income shares method

All the methods consider the number of children the non-custodial parent (obligor) must support. All states base their calculation on disposable earnings. Earnings are compensation from any source. This includes workers' compensation, bonuses, commissions, and other lump-sum payments. Disposable earnings are what's left after legally required deductions such as taxes are withheld. The flat percentage method considers only the non-custodial parent's income. The income share method considers both parents' income. The Melson method is the same as the income share method, except it includes a standard of living adjustment based on increases in the income of either parent. The Melson formula is more complex than the other methods.

Even within states that use the same method, there’s some variance in the factors considered. For example, California is an income share state that considers the time each parent spends in the act of "parenting" in its calculation formula. 

Many state child support agencies have calculators on their websites. The following calculators and guidelines are good examples of each formula states use: 

• The Texas child support calculator is an example of the flat percentage method.

• The California child support calculator is an example of the income shares method.

• Only Delaware, Hawaii, and Montana use the Melson formula. This guideline worksheet from Hawaii shows how Hawaii applies the Melson formula.

Your state might have an informal dispute resolution system. These systems allow you a hearing before a county caseworker to modify your child support payments. This is much simpler than court hearings. 

Minnesota is one state that has such a system. When you need to modify your child support order, it's usually best to seek legal advice from a local attorney with experience in family law. These attorneys know the law for your area as well as the local practices. This is important since law and procedure can vary so much across the nation.

Your Wages Can Be Garnished if You Don’t Pay Child Support

Some states default to using income withholding orders to collect child support payments. California is a state that assigns withholding orders by default. These orders provide withholding for child support just like your taxes are withheld. These income withholding orders can usually be "stayed" if the custodial parent agrees to direct payments. 

There's an important technical difference between these income withholding orders and wage garnishments. Wage garnishment orders are only used to enforce payment when child support is in arrears.

This difference is important because it affects how much is taken out of your paycheck for child support. Take Texas for example. That state uses the percentage of income of the non-custodial parent (the obligor) to calculate child support. If there's only one child to support, Texas only takes 20% of the disposable earnings of the obligor. But, Texas would take a higher percentage if it has to collect a child support arrearage. 

Unlike most wage garnishments where federal garnishment law caps the maximum amount at 25% of disposable earnings, the Consumer Credit Protection Act at 15 U.S. Code § 1673(b)(2) caps garnishments for child support in arrears at 60%. The law adds another 5% (for a total of 65%) if you're more than 12 weeks behind. 

The good news is child support garnishments come before any other income is garnished. There's an exception if the other garnishment is a federal tax garnishment from the IRS or a bankruptcy court order. The 65% limit is an aggregate amount. A private (non-government) creditor can't collect its 25% garnishment causing a 90% (65% + 25%) garnishment. That private creditor's garnishment can't start until the child support garnishment is paid in full.

Job losses or other changes in income happen all the time. For this reason, every state has procedures to modify child support orders. It’s better to attempt to modify the order than to allow child support debts to pile up. Child support collection occurs much quicker than most debt collections. Many states allow their child support agencies to garnish your wages without having to get a court's garnishment order. Other creditors don't have this luxury. Child support agencies may also intercept your tax return refunds if you’re behind on payments.

Other Consequences of Not Paying Child Support

Different states have different laws. For purposes of enforcement, Texas will be used as an example. The Texas attorney general's office has many tools to collect child support. They can revoke your driver's license, professional license, hunting license, fishing license, and passport. It may be difficult to get to your job without a driver's license. If you're a doctor or lawyer, you could have your professional license revoked. 

Some of these "enforcement methods" make it more difficult to make your child support payments.  Texas will report your failure to make child support payments to the credit bureaus. Texas will also put liens on your property and intercept any lump sums such as lottery winnings.

All states have laws providing for jail sentences for those who don't make their child support payments. Most states make nonpayment a felony under certain conditions. In some states, failure to pay child support is only a misdemeanor. 

In Texas, not paying child support is a felony for which the defendant will spend no more than two years in jail. The Texas law allows no less than 180 days of jail. Texas limits fines to no more than $10,000. Texas also may pursue civil contempt of court charges. This is when a judge orders a fine or days in jail for every late payment or for every day a payment is late. Texas may pursue criminal contempt against the defendant. This allows the defendant to be kept in jail until a certain amount of child support is paid or until the arrearages are completely caught up.

Bankruptcy Won’t Affect Child Support Obligations

Bankruptcy will not discharge your child support obligations. But, bankruptcy can do a lot to make child support payments easier. A Chapter 7 or Chapter 13 bankruptcy can eliminate other unsecured debts.  This leaves you more money to pay your child support obligations. 

If you file a Chapter 13 bankruptcy, you can catch up on the amount you’re behind on child support through the Chapter 13 Plan. You're still required to make your regular child support payments while in your Chapter 13. If you enter a Chapter 13 repayment plan to catch up child support arrearages, states usually return your licenses. It's best to talk to a local bankruptcy attorney to find out how much bankruptcy can help with child support payments where you live. 

After you complete your Chapter 13 Plan, but before the case is discharged, you’ll have to file a statement with the bankruptcy court certifying that you have made all your regular child support payments while you were in the Chapter 13 bankruptcy. Without this certification, you won't receive a Chapter 13 discharge for any debts of any kind.

Let’s Summarize...

If you can make your child support payments, you should make every effort to do so. If for some reason it’s impossible for you to continue to make your child support payments, consult with a local attorney to go over your options. Child support arrearages are some of the most difficult debts to deal with. 

If you’re already behind, bankruptcy can help, but it can’t eliminate child support debts unless they’re fully paid. The law requires you to support your children when you don’t live in the same household just like you would if you lived in the same house.