In Utah, in a divorce proceeding where there are children from the marriage, the issue of child custody and child support is of prime importance. Generally, one parent will be given custody of the children (except in case of a joint custody order) and the other will have visitation rights. The parent who does not get custody will generally be required to pay child support to the parent with custody. Even in case of joint custody, one parent may be ordered to pay child support. If you are seeking child support from your spouse or your spouse is seeking child custody from you, an experienced Utah child support attorney is your best friend.
Child Support Guidelines
Utah has a set of guidelines for deciding child support. These guidelines are part of Utah Code section 78B-12-204 through 205. Amongst others the guidelines require the court to consider the following:
• The standard of living of the spouses
• The income and wealth of the spouses
• The earning ability of the non-custodial parent
• In case of an incapacitated adult child, the ability of that child to earn or the benefits received by such adult child
• The needs of the parties – the child and both the parents – custodial and non-custodial.
• The age of the parents
• Support if any provided by either spouse to the other
Need for Child Support
Because married men usually earn more than women, the payment of child support when the mother becomes a single parent is vitally important to her well-being and that of her children. In some cases (though a statistically smaller number), payment by a noncustodial mother is also vitally important. Child support has become a cause célèbre. Advocacy and support groups throughout the country, such as Fathers United for Equal Rights, often target legislators for child support and custody reform. “Deadbeat” dads have been a target of legislators for years as denial of paternity by some fathers and lack of child support payments by others have caused many mothers to spiral down into poverty. Child support is needed to help stop the financial drain.
In the eyes of the law, both parents have an absolute legal obligation to provide financial support to their children. A mother and a father may love, hate, or not care at all about each other; the quality of the relationship between parents does not affect their joint obligation to their children in any way. Child support is, has been, and will be a primary parental responsibility whether a child’s parents are rich or poor, sick or well, together or estranged.
When children’s parents live together as a family, child support rarely becomes a concern of the courts. When parents separate or divorce (or have a child out of wedlock), a family court attempts to enforce children’s rights to financial support by ordering parents (or a parent) to pay specific sums of money either to the children’s other parent or to a third party (a school, a day-care center, an insurance company, a counselor, a trust fund manager, and so on). Parents often are also required to secure medical and/or dental benefits for their children. Child support obligations begin when children are born and continue until the children reach the legal equivalent of adulthood. Courts typically require parents to provide life insurance or some other funding vehicle to guarantee that support payments will continue after the death of the parents.
The law is clear in its insistence that both parents share financial responsibility for their children, although the enforcement of the law often places a greater burden on fathers due to gender bias. In cases where one parent has sole or primary custody of a couple’s children, custody itself frequently satisfies all or part of the custodial parent’s support obligation. Support funds contributed by the noncustodial parent, when combined with the custodial parent’s day-to-day support, must be sufficient to cover all normal child‐ rearing expenses (housing, food, clothing, medical care, education, and recreation).
A child’s support entitlement is not limited to the funds needed to meet basic needs. Almost all support statutes now mandate support awards large enough to maintain the “standard of living the child would have enjoyed had the marriage not been dissolved.” When a divorcing couple’s income and assets are substantial enough to make such awards feasible, family courts require parents to continue to pay for the same kinds of “luxury” items they gave their kids prior to the divorce.
Most domestic relations courts are extremely vigilant in protecting the support rights of children. In fact, many family court judges believe that their court’s most important function is to ensure that child support is sufficient, appropriate, and consistent with the law.
Support statutes always make “the interests of the children” the main component of court-ordered support allocations. In divorces ending in settlement, the courts carefully review the support provisions of the settlement agreement to ensure that children’s needs and entitlements haven’t been compromised. It is not unusual for a family court judge to summon independent financial experts to evaluate the adequacy of support arrangements. Countless court orders have overturned or modified support settlements deemed insufficient.
Courts rarely allow a parent to waive child support. This protective attitude prevents parents from “trading” a child’s support rights for other benefits to themselves or to the child. A court will generally consider the standard of living the child would have enjoyed had the marriage not been dissolved. A court’s commitment to the maintenance of a child’s standard of living is the consideration most often cited in unusual support awards. Often, this factor is also the issue most hotly contested by divorcing parents.
The Physical, Emotional, and Mental Condition of the Child
Special needs of children beset with health, adjustment, or developmental problems are always considered in determining support obligations. Whenever possible, courts will try to ensure that children who need special education, psychological counseling, psychiatric care, physical therapy, orthodontia, or other professional services continue to receive appropriate treatment after their parents divorce. In many states, especially when it affects the ability of parents to earn a living, day care is considered to be an essential service.
Enforcement of Support Orders
Failure to pay court order child support can have serious consequences.
If child support is not paid in compliance with family court rulings, a variety of collection mechanisms are used to attempt enforcement. The most common is the issuance of an Order of Withholding, a form of wage garnishment through which the court collects delinquent support directly from the responsible parent’s employer.
Failure to pay child support can also result in the seizure of a parent’s property, interception of tax refunds, and confiscation of bank accounts. Private collection agencies and locator services operated by federal and state prosecutors will assist in the enforcement of valid support orders.
The State of Utah has an Office of Recovery Services which helps custodial parents collect child support from the non-custodial parent.
If you are the custodial parent and your spouse is not paying the court ordered child support, you can seek to attach your spouse’s income to recover the child support amount including back child support. Under Utah law, you can attach up to half your spouse’s income if he is paying more than 50 percent of support for dependents of his or her second marriage. When the spouse paying child support is in arrears, the approved percentage increases to fifty five, then sixty percent for a spouse supporting dependants under the current order, and sixty five percent for a delinquent paying only under the current order.
Child support payments can also be recovered by placing liens on the non-paying spouse’s property and bank accounts. Failure to pay or late payment of child support payments can be reported to credit bureaus and will adversely affect the credit ratings.
You cannot limit the amount of child support you may be required to pay in case of a divorce by entering into a prenuptial agreement with your spouse. A clause in a prenuptial agreement limiting the amount of child support will not be enforced by a court in Utah. The reason is simple – child support belongs to the child and not the parents.
Modification of Child Support Orders
You can apply to the court to modify the child support orders if your situation changes subsequently. A significant change in your income is one of the main grounds for seeking a change in a child custody order under Utah law. However, the significant change in the income must be proved through bank statements, salary slips and other documents. Merely claiming that there is a significant change in the income will not result in the court changing the child support order. Another ground for seeking modification of the child support order if you are the custodial parent who is receiving the support, is significant change in the child’s circumstances. For example, if the child subsequently develops some problems which may result in increased expenses for the rest of his childhood, you can ask the court to modify the child support order. The non-custodial parent can object to your request for modification of the child support order. Hence it is important that you use the services of an experienced Utah child support attorney.
Generally, you can seek a modification after three years. However. in some cases, you can seek a modification before three years. These include:
• A change in custody
• A significant increase or decrease in the assets and income of either parent
• Change in the medical requirements of the child
• Change in the education requirements of the child
• Change in the health insurance availability
• Change in childcare expenses due to work/employment
Just because you are the non-custodial parent, it does not mean that you have to pay child support. Generally, the non-custodial parent has to pay child support to the custodial parent. But what if you don’t have the resources to pay child support? Remember once a child support order is passed against you, you have to pay it otherwise your spouse can seek to enforce the child support order against you. It is therefore important that you fight the child support case against you. Seek the assistance of an experienced Utah child support attorney. You have to prove that you are not in a position to pay child support and you must support your claim with evidence.
Paying Child Support
There are two methods of paying child support in Utah – direct and indirect. Direct payments include payments made directly to the custodial parent through checks, online transfer, money order, etc. Indirect transfer means payments made to third parties like payment of school fees to the school instead of letting the custodial parent do it. When you are paying directly to the custodial parent, make sure you don’t pay cash. Pay through other means so that you can have documentary evidence.
Under Utah law, child support payments are made to ensure that the living expenses of the child are taken care of. It essentially covers the basic items and necessities like shelter, food, medical expenses, clothing, health insurance and the like. Besides the basic necessities, child support also includes other expenses such as school fees, day care, extra curricular activities, travel and transportation costs, etc. The State of Utah has developed a child support calculator which is available online. By entering the details in the child support calculator, you can get an idea of the amount of child support.
Moving Out of Utah
If you are moving out of Utah and you are the parent paying child support, your obligation to pay child support will not be affected. Moving out will not get rid of the child support obligation. Remember it is a court order and a court order can only be set aside or modified by a court. If you are moving out of Utah and you want to modify the child support order against you, speak to an experienced Utah child support attorney to know your rights.
Child Support Lawyer in Utah Free Consultation
If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506