The Baroness - Consulting & Mediation, LLC

April 15, 2008

Child Support and Modification

These dreaded words  –  Child Support –  will inevitably pop up when a family calls it quits. We all know of the never ending dispute:   paying too much and receiving too little, but we always forget about the purpose of this legal and financial matter. Child support is supposed to leave the children from a broken home somewhat in the lifestyle they were accustomed to  –  in both homes. Of course, when you divide anything by half and then also subtract available funds for double housing, double utility, double so many other things, the standard of living can rarely be maintained as is. But the system has found a way to assure that a minimum requirement is met.

Agreements can be made privately and included in a divorce decree, just privately after separation or divorce and just written down in an agreement, or going through official channels and using the all mighty DRS, short for Domestic Relations Section, located on the second floor at the Courthouse Annex in Wilkes-Barre for Luzerne County.

The biological parent, who is the primary caregiver, may file for child support as soon as both parents no longer live in the same home, not until then. The paperwork for the initial filing is simple and will be done together with an intake officer at DRS, provided the public instead of private channels are chosen.

The children will be entitled to a minimum of support which will be derived from a standard, published chart and which combines both parents’ net income and then finds the matching amount of children. It stops at six children, anything over will be negotiated. The chart also stops at $15,000 combined monthly net income, anything over that will also be negotiated.

Things are simple when both parents are gainfully employed and have regular paystubs and W-2 forms to show. It’s simple math from there. It gets complicated when one or both of the parents are self-employed, not employed, under-employed, on commission, or working “under the table”.

The support officer assigned to the case will do his best to assess an “Earning Capacity” for the party without a regular paystub based on all the information available to him at that time and then do the math.

Once an initial support order is issued, the parent who needs to pay will receive a court  order to pay a certain amount by a certain date each month, and the parent receiving the support on behalf of the children will receive a PA State issued debit card with a local bank. It is advisable to open a checking account with that bank at a branch near home or work, so that there are no fees for withdrawals. Both parties may sign up for online access so they both can manage their end of the payment process online.

After the initial support order has been issued and signed by a Judge, both parties have the right to contest the amount by filing for so-called Modification. It’s a fairly simple process and forms are available at the court house. It can be done without an attorney filing it or being present for the hearing (Modification Hearing before a Support Hearing Officer), and it certainly should be done without an attorney, if one can’t afford one or doesn’t want to pay for a pricy attorney, but the support being paid or received is off too much, for whatever reason.

Either party may file for modification every six (6) months for numerous reasons, which show a substantial actual or perceived change in income, such as increase in work hours or overtime, change of job, loss of job, significant change in health affecting income, child care and health care issues, a move affecting housing cost and school cost, loss of a free child care provider, career change and continued education cost, etc. It’s for the hearing officer after listening to both parties’ presentations (with or without attorneys) to make a decision as to what figure the child support obligations should be changed to.

Either party now has the choice to accept the new ruling, contest it and request a hearing in front of a Support Master, a court employee who is an attorney and handles a lot of work a Judge ordinarily would have. The filing for a so-called complex hearing costs a filing fee and generally (but not always) requires an attorney. The support master’s findings may be appealed to a Judge, but most those appeals are thrown out. The third possibility would be to wait another six (6) months and file again on the Modification hearing level with better data in hand. In most cases it is much more economical to go that route taking the attorney’s fees into consideration, which could run into the thousands. It’s rare that the amount of extra or reduced support achieved as the result of a hearing, will cover the cost of the attorney, who helped increase or reduce the child support during the first or even second year  (Simple math example: you gained $5o per month in support payments, but you owe $2,000 to the attorney for preparing and representing you in a modification hearing, so not until 3 years and 4 months later will you have an actual net gain from this attempt and your children see an actual increase in funds available to them.). And there is no guarantee that this changed support order will last, since it can technically be modified every six months given changing circumstances. Unfortunately so many disgruntled parents spend much more on their attorneys then they do supporting their own children.

Years ago a party obligated to pay support would quit a good paying job, become officially unemployed for a while, or make an uneconomical career change, in order to be assessed a minimal obligation, but this strategy does not work so well anymore, since the courts have adopted the theory of income potential, i.e. “earning capacity”.  If it looks that you’re not constructively contributing to the financial welfare of your children you will be assessed an amount that you are expected to contribute, and you better figure out where you get this money. On the other side, formerly stay home moms are also expected to re-enter the workforce and given a certain time to do so in order to find a job and daycare.

It’s important that both parents understand that this money called ‘child support’ is exactly that. Punishing the parent receiving this money on behalf of the children by not paying for lengthy periods of time, by paying late all the time or by cheating on the income assessment will backfire for both parties. If the party receiving the payments late can’t pay utility bills, credit card bills and the mortgage or rent on time, it will affect that person’s credit score and now make life much more expensive for the whole family. By the same token, paying late or not at all will affect the payor’s credit score as well.  DRS reports delinquency and this type of delinquency carries a heavy weight, besides being frowned upon by mortgage lenders, future employers, etc. Furthermore, DRS also has the power to have a driver’s license suspended. And lastly, and the one most in the public’s eyes these days, DRS can file for contempt. Contempt is the authority’s last resort and may result in incarceration of the person neglecting to pay for his or her children, a downward spiral which should be avoided under all circumstances.

Unfortunately, there have been numerous parents incarcerated in recent years who got trapped by the system. Parents, who voluntarily had alternate arrangements made with the other party, but the other party never clarified that with the court and had the support obligation adjusted. Parents, who actually had been physically and financially been  taking care of their children and in essence had become the primary care givers, but who never had the support order modified to show that change in circumstances. Tragically, before a support order can be switched from one parent to the other, the law requires that the corresponding custody order be changed first to reflect the changing circumstances, an often lengthy and unfortunately perceived as expensive proposition.

The best defense to unfair financial treatment of either parent and therefore also for the children is simply to file for modification right away. Instead of arming yourself with an expensive attorney and running to court every time, you may want to consider locating a competent mediator in the area who can address more than just the financial issues and help find a mutually agreeable solution which can keep the children’s best interest at heart and also make both parties understand their obligations better and most of all the short and long term impact their actions may have on the whole family, living together in one location or not.

Baroness Juliane von Schmeling, BS, MBA, EJD Baroness von Schmeling personally experienced that the adversarial legal system doesn’t always work so well in resolving custody and support disputes, as well as many other conflicts. As a result she looked for other solutions, and found mediation to be an excellent, user-friendly alternative form for conflict resolution. Things happen, and matters need to be resolved, but it doesn’t have to mean that disputes and divorces get drawn out for years and cost thousands upon thousands of dollars to resolve. She has decades of experience in resolving issues in the business environment and since 2006 has mediated many divorces and custody and support cases as well as other Alternative Conflict Resolution (ACR). She knows from experience that mediation works much faster and in practically all cases and is so much less expensive than the traditional forms of suing each other in a court of law. Best of all, the agreements she has worked out are in the end legally binding and enforceable, just like traditional court orders. But all parties had more of a chance for real input during the process, so naturally these agreements are usually longer lasting and not appealed. Baroness J. von Schmeling strives to create intelligent win-win solutions for all parties and has received many referrals in recent years from satisfied clients and industry professionals alike. She is a trained Mediator with Certificate, and has many other important, pertinent credentials such as an MBA in finance, studies in psychology, mental health, consumer research, and more. She also regularly attends continuing education seminars. Unlike many family law attorneys she has devoted her entire career to becoming a professional, goal-oriented mediator. Credentials Abitur - Wolfgang-Ernst-Gymnasium ’85 BS - Kings College (International Business, Psychology) ’89 MBA - Wilkes University (Marketing, Finance) ‘06 EJD - Concord Law School Mediator Certificate – IMA, AZ Various accreditations in Business, Mental Health, Psychology, Science, Social Media and Finance

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