Recently, I received a very interesting phone call from a young woman who had just had a child with her boyfriend. They were living together and both were working and sharing household expenses. It was their first child. Although both were working, both paychecks barely covered their monthly expenses.
To complicate matters, her boyfriend previously had a child with another woman. He was paying child support and it had not been modified for a few years and his prior child’s mother wanted an increase in child support based upon his new increased income. The question was whether or not he could go to court and claim that he should not have to pay as much child support to his first child because he had another.
Of course, there is never an easy answer and there is never an easy answer to this question. However, I explained that a serial family payer is entitled to a reduction in child support; however, the payer’s first child is always paid the full amount. For example, and to keep things mathematically simple, assume $100 of gross income per week and assuming the father does not have enough placement to qualify for a reduction. Under that scenario, he would pay $17.00 per week in child support (17% of $100 = $17.00).
Assuming the same set of facts, his second child’s mother could request child support and if so, based up-on 17%, she would get 17% of $83 per week or $14.11 ($100.00 – $17.00 first child support obligation = $83.00 x 17% = $14.11).
I had to tell the young woman that she would get less child support than the first mother under the serial family payer reduction. I did tell her that her boyfriend could argue that the court should deviate from the percentage standard because he simply was unable to pay for his expenses including the increased expense of having another child. Depending upon the circumstances the court does have the ability to deviate from the percentage guidelines under certain circumstances of which substantial expenses are one circumstance.
To complicate matters further, her boyfriend has recently been working a substantial amount of overtime and was worried that if they went to court, the court would base child support on his increased income above and beyond his base pay. I told her that was a potential risk and that the court could and often does base child support upon the gross income including overtime. Again, the court does have discretion, under multiple circumstances, to set child support on base pay and not include overtime. Again, it depends upon the income and expenses of the person requesting child support as well as the income and expenses of the person paying child support.
The question was whether they should risk going to court and having to pay more child support or accept the amount that the first mother was requesting which was only set on base pay. Those are difficult questions and risks that need to be thoroughly reviewed and discussed with an attorney after reviewing all of your finances. In the 26+ years of doing these types of cases, I have seen court commissioners and judges go both ways on including or excluding overtime as well as deviating from the percentage guidelines based upon a person’s substantial monthly expenses. Should you have any questions or concerns about divorce, family law, child support, maintenance or any family law matter, please contact the experienced attorneys of Krueger Hernandez & Thompson SC for a free, no obligation consultation.
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