HOW CHILD SUPPORT IS DETERMINED?

QUESTION: How are child support amounts determined?

ANSWER: Child support is calculated through the use of a formula known as the child support guidelines. The formula is established by state law under New Hampshire Revised Statutes Annotated Chapter 458-C. The two primary purposes of the child support guidelines are: (1) to have a uniform system for determining child support payments and (2) to minimize the economic consequences to children whose parents have separated or divorced. The child support guidelines are used to determine what the proper amount of child support should be in every case where child support is involved. New Hampshire law provides that every child is entitled to financial support. The parent who is not a member of the child’s household (known as the obligor) must pay child support in any case in which the parents have separated, are in the process of a divorce or the family is no longer living together in the same household. The payment of child support by an obligor continues until a child reaches the age of 18 or terminates his or her high school education, whichever is later, or becomes married, or becomes a member of the armed services. The court calculates the amount of support using the child support guidelines according to a percentage of the parties’ combined monthly gross income. Each parent must complete a form required by the court known as a financial affidavit. This is a notarized form that lists a parent’s monthly gross income and expenses. The child support obligation is calculated pursuant to the guidelines which takes into account the respective gross monthly incomes of the parties. The court presumes the child support guideline amount is a just and appropriate order.

In May 1998, the New Hampshire Legislature made several important changes to the child support guideline calculation statute which, among other things, increases the types of deductions parents may take from their monthly gross income in order to calculate the amount of child support. Deductions from income include the payment of another child support order or any other court-ordered support, fifty (50) percent of any self-employment taxes paid, mandatory retirement expenses, actual state income taxes paid by a parent who works out of state, work-related child care expenses and medical insurance paid for the children. The amount of child support will change depending on which parent pays these expenses. If the obligor pays, the child support obligation will be decreased; if the parent who has custody of the children (the “obligee”) pays the expenses, the obligor’s child support obligation will be increased under the guidelines. The amount of child support paid by the obligor may also be different than the amount calculated by the child support guidelines if certain “special circumstances” are found by the court to exist. The court may use its discretion to alter a obligor’s child support payment (or “deviate” from the guideline amount) if it finds that special circumstances warrant a change in the amount of support. Some examples of special circumstances include, but are not limited to: extraordinary medical, dental or educational expenses for the child; significant disparity between the parents’ income levels; the presence of other children including step-children, adopted or natural children in either parent’s home; whether reasonable expenses are incurred in exercising visitation or custody rights; the economic consequences of selling the parties’ home, sold for the benefit of the children; shared custody arrangements; and the payment of post-secondary educational expenses for a natural or adopted child.

If a separated or divorced parent remarries or lives with a significant other, the new spouse or significant other’s income is not used for the calculation of the child support amount. Only the income of the mother and father of the child is used in the formula. The court may consider, however, a new spouse or significant other’s income when making a determination of whether “special circumstances” exist. A new spouse or significant other’s income may be considered as a factor in whether the court orders the full guideline calculation amount of support. For example, if an obligor argues to the court that he or she cannot pay the child support guideline amount of child support because the calculated amount is too high, the court may consider whether the obligor is remarried and if his or her spouse works and contributes to the household expenses. According to New Hampshire law, there are two reasons why a child support order may be modified and adjusted by the court. First, a child support order may be reviewed automatically after three years from the date of the order under RSA 458-C:7. Secondly, a child support order can be modified at any time if there has been a substantial change in the financial circumstances of either parent. A substantial change in financial circumstances may be a significant raise in wages, the loss or reduction of employment, or any other circumstance that significantly increases or decreases a parent’s monthly income. A parent must file a Petition for Modification with the court in order to obtain an adjustment to the existing child support order.

Answered by Attorney Catherine Shanelaris of Shanelaris & Schirch, PLLC, Nashua.

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COMPLIANCE WITH OUT-OF-STATE DIVORCE DECREES

QUESTION: My ex-husband and I were divorced in Ohio in 1988. He has relocated to Indiana, and my daughter and I moved to New Hampshire over a year ago. My ex-husband is not complying with parts of the decree and I would like to go back to court to have the decree enforced. Do I have to go back to court in Ohio or can I go to court here in New Hampshire?

ANSWER: A court order issued by one state is recognized in all other states. This proposition is set forth in Article IV, Section 1 of the United States Constitution which states in part "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial proceedings of every other State." In addition, there is a federal statute which addresses this concept as it applies to child support orders. This statute is entitled the Full Faith and Credit for Child Support Orders Act and specifically states that the appropriate authorities of each State shall enforce a child support order made by a court of another State.

Closer to home, there is a New Hampshire statute which was passed to give guidance to Courts and individuals when there are support orders and the parties are residing in different states. That statute is called the Uniform Interstate Family Support Act (or UIFSA for short). Laws similar to New Hampshire's UIFSA statute have been passed in all fifty states. Under UIFSA, once a State issues a support order, that State's order controls and must be recognized by all courts in every other state.

In order to get New Hampshire to recognize the Ohio order as the controlling order, it must be registered in a New Hampshire court as a foreign order. If there has been more than one order issued by more than one State, UIFSA requires some very specific information to be forwarded to the New Hampshire court where you reside. To register an order under UIFSA, you must file two copies of all court orders to be registered (one of which must be certified by the state where it was issued), including any modification of the order; a sworn statement showing the amount of arrearages (that is, the amount of money the person required to pay support owes; that person is called the obligor); the name of the obligor, their address and social security number, name and address of employer and a description of property in this state, if known, and the name and address of the obligee (the person to receive support) or the agency to whom support should be paid. Alternatively, you could register the Ohio order in Indiana, where your ex-spouse is now residing, which might give you more remedies than registering in New Hampshire (since that is where he resides, and the court would have personal jurisdiction over him). Finally, if you want to modify or change any of the terms of the Ohio order, then the order will need to be registered and modified in Indiana since UIFSA requires that the modification go forward in the state where the "other party" resides.

Any individual may request assistance from the New Hampshire Division of Child Support Services (DCSS). District offices are located throughout the State, and all you need to do is to go to your local office and fill out an application. Services will be provided at no cost. When dealing with agencies and individuals outside the State of New Hampshire, this can often be a cost effective way to get the relief you need, since DCSS is familiar with dealing with all other States and agencies. In this case, a request for registration of the Ohio order would be sent to a similar agency in Indiana, who would then be responsible for registering the Ohio order and enforcing that order.

You should know, however, that this route can be slow, since both agencies have many more cases to handle than people available to do the work. An alternative is to hire an Indiana attorney to assist you in enforcing the order in Indiana (and this may be the best option if the terms that you are seeking to enforce have to do with visitation or property distribution as opposed to payment of support or issues surrounding health insurance). To get the name of an Indiana attorney, I would suggest starting with the Indiana Bar Association.

Information regarding services provided by the New Hampshire Division of Child Support Services may be obtained from your local district office of the Division of Child Support Services, or by contacting client services at (800) 852-3345 x4427.

Answered by Attorney Jane M. Schirch of Shanelaris & Schirch, PLLC, Nashua, June 2004