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How Are Child Care Expenses Divided After Divorce?

How Are Child Care Expenses Divided After Divorce?

Child support can be granted during divorce, temporary separation, or as separate maintenance. Generally speaking, there is a legal duty for parents to support their children under the age of 18 but there are exceptions, such as if the child is emancipated or if they have a disability which means they will remain dependent even after turning 18.

The Utah guidelines determine all aspects of child support. The parent who has custody is paid child support by the non-custodial parent and is based on income. The three components of this payment include base child support, medical expenses, and child care expenses. In general, the portion of health insurance policy premiums attributed to the child (ren) is split between the parents in addition to uninsured medical expenses. As well, work-related child care expenses are also shared between the two.

Child support is calculated by accounting for the total gross income of both parents, along with the number of overnights spent in the household of each parent. Parents are required to provide proof that their income matches the amount inputted in the child support calculator, such as with pay stubs and copies of the most recent tax returns. If a parent has a reasonable explanation for why this information is not available, the other party can file a Declaration of Other Party’s Earnings to explain the income, similar to acting as a witness for the other person. In cases where one parent doesn’t work, the Court can assume the amount of a party’s earning potential based on their prior work history and an assumed 40-hour workweek. If there is no recent work history information to rely upon, or if there isn’t a specific occupation the party has had, then the Court’s assumption will be based on the federal minimum wage for a 40-hour workweek. This is how the Court accounts for the fact that the other parent can reasonably work, however, this is not done in every circumstance. Exceptions are made in the following cases of a non-temporary nature:

The cost of childcare would equal, or almost equal, the amount of money earned by the parent with custody.

• If the party has a physical or mental condition preventing them from obtaining and/or keeping a minimum wage position
• The party is undergoing training to establish basic job skills, or
• A child has unique needs requiring the parent with custody to care for them in the home
How many overnights the child (ren) spend in the parents’ respective homes also has an effect on how much child support is paid. There are three basic scenarios in terms of physical custody:
• If the child spends a minimum of 111 nights per year in the homes of each parent, this is known as joint physical custody.
• If the child spends over 225 nights per year in one parent’s home, this is sole physical custody.
• If there is more than one child and some live with one parent and some with the other parent, this is split custody.

The easiest way to calculate child support is to use the child support calculator provided on the Office of Recovery Services’ (ORS) website, HERE. If you’re unsure of how to go about using this calculator, this article will help you.

In Utah, there’s a number of factors the court will consider when determining how much child support you will have to pay, or how much child support you will receive in your divorce or custody battle. The court will consider
• the income of both of the parties;
• the number of children born to both of the parents;
• the type of physical custody awarded;
• whether one of the parties has another child support or alimony obligation in a different case;
• whether there are other children currently living with one of the parents whom that parent is obligated to support.

The Parties’ Income.

We consider the income of both parties when calculating child support: the party paying child support and the party receiving child support.

• Unemployed Parent. Occasionally, one of the parents is unemployed and therefore does not have any income. When this occurs, the court can impute income–this means that the court will look at the work history and employable skills of that unemployed parent to determine the amount of income the parent is capable of earning. For example, if the parent was previously employed making $60,000 per year, the court may determine that the parent presently has the ability to make $60,000 per year, and then the court will use this hypothetical figure to calculate the amount of child support owed/received.
• Unemployed with No Previous Work History. If the parent doesn’t have any previous work history or any employable skills, the court will likely determine that the parent has the ability to make at least minimum wage.
• Inconsistent Income. Sometimes a parent is employed in a position where their income is dependent upon commissions, where their work is seasonal, or where for any other reason their income fluctuates month to month or year to year. In this case, the court may look at the parent’s salary over the past several years to determine an average salary that the parent will be held for the purposes of calculating child support.
• Second Job or Overtime Pay. Generally, child support is calculated based on a parent’s 40-hour workweek. Overtime pay and income from a second job can be considered when calculating child support, but generally is not.
Number of children that the parties have together.

The number of children born to both of the parents has one of the most significant impacts on the amount of child support that will be paid/received. Of course, if there are more children born to the parents, the amount of child support paid/received will be higher.

Type of physical custody awarded.

The type of physical custody awarded to the parents is another factor that will significantly impact the amount of child support paid/received.

• Joint Physical Custody. Joint physical custody is determined by the number of overnights each year that the children spend with each of the parents. The amount of child support will fluctuate depending on the number of overnights the child spends with each of the parents. For example, in a joint custody situation, if a child spends 111 overnights with one parent and 254 overnights with the other parent the child support obligation will be much higher than if the child spends 183 overnights with one parent and 182 overnights with the other parent.
• Primary Physical Custody. If one party is awarded primary physical custody then we no longer consider the number of overnights the children spend with each of the parents and we calculate child support based only on the fact that primary physical custody has been awarded.

Previous Child Support or Alimony Obligation in a Different Case.

The court will consider the amount of child support or alimony (spousal support) that one of the parents has to pay in another, different case when calculating the child support owed/received in your case.

Obligation to Children in the Present Home.

If one of the parents has been remarried and there are other children of that marriage living in that parent’s home, the court will consider the financial obligation that the parent owes to those children when calculating child support.

How child support is really calculated in Utah

It seems that divorce is never fair. In fact, divorce seems to be the most complicated and confusing thing one can go up against in his or her life. But wait until you start trying to figure out how child support is calculated in Utah.

Most divorcing couples have no idea how child support is calculated in Utah, and this is part of the reason why they end up with the kind of child support arrangement they were prepared for neither financially nor emotionally.

Some people may think that child support is calculated based on the income of both parents, the number of children, and their custody arrangement, but in reality, there is so much more that’s going on when Utah courts determine child support. So you may be surprised to find out what factors are actually taken into account.

How to Calculate Child Support in Utah

Let’s start with the basics. Before digging deep to consider all factors and determine the child’s best interests, a family court will examine the gross income of both parents separately.

The gross income of a parent includes income from all the sources, including salaries, rent, social security bills, and even unemployment payments and employments benefits. However, things like housing subsidies, welfare benefits, and general assistance are typically excluded from the equation when determining child support.

If a parent refuses to work just to avoid providing the other parent with child support payments, or voluntarily takes a pay cut just to be obliged with lesser payments, or deliberately quits his/her job altogether – a Utah court will take into account the past and current earnings of the parent.

Another factor that is important when calculating child support in Salt Lake City and all across Utah is the amount of time each parent is going to spend with the child as per the existing custody arrangement, which can be sole custody, joint custody, or split custody.

Utah Child Support Calculator Formula

Under the Utah State Legislature, local courts use a certain formula to calculate the amount of monthly child support payments in each case. The following factors are taken into consideration in the formula:
• The needs of the child, including medical care, education, insurance, and if he/she has any special needs;
• The income and needs of each parent, but especially the custodial parent;
• The non-custodial parent’s ability to make monthly child support payments;
• The child’s standard of living before his/her parents were separated or divorced, especially considering the child’s financial needs to maintain the same standard of living.

Can You Ever Change the Amount of Child Support?

The parent who is obliged to make monthly child support payments is legally required to pay without delay, and cannot pay less, only more, if he/she wishes to. The court must always approve the amount of child support payments if the parents agree to any changes in child support.

If the court obliges you to pay the amount that you cannot afford – or had been able to afford for a while and now the arrangement is putting a heavy strain on your budget – you can always request a child support modification.

However, you’ll need to be legally represented by a child support attorney in order to obtain approval from the court, as you will have to prove that the child support modification is justified due to:
• Your diminished ability to earn;
• The other parent’s acquired ability to earn;
• Your changed standard of living;
• The receiving parent changing his/her marital status or living with a romantic partner who can provide for the child

If the child support arrangement is no longer working out, you can request a child support modification.

Child Support Modifications Utah

There can be many reasons why you need to modify your child support order. You could have suffered a job loss or become disabled which prevents you from working earning the income you were before the injury. Whatever your reasons for requesting a child support modification, there are certain things you need to know before going to court.

What Qualifies for Child Support Modifications?

In Utah, you can only change the amount of your child support if the difference in what you are currently ordered to pay and what the new amount you may be ordered to pay differs by 10 percent. Utah does not allow temporary modifications, requiring that that the change is expected to last at least one year. Keep in mind that a child support modification is considered a post judgement change which means there are certain steps you must follow in order to change the support amount.

How to Modify Support

There are two ways to ask the court to change the amount you are paying in support. A Motion to Adjust can be used if there is a clear difference of 10 percent between the current order and the new order, the difference is not temporary, and the proposed amount is consistent with guidelines. If any one of these criteria does not exist, you must file a Petition to Modify Child Support.

Petition to Modify Child Support

A Petition to Modify also has restrictions. If it has been three years or more since the original order, the 10 percent difference criteria must be met although the proposed support does not have to be consistent with guidelines. The change still may not be temporary. If it has been less than three years, there must be at least a 15 percent difference. You must also show that there has been a material change in one or more of the following areas:
• Availability or cost of health coverage
• Change of 30 percent or more in a parent’s income
• Custody
• Emancipation of a child
• Employment potential or ability to earn
• Legal responsibility of a parent to support others
• Medical needs of the child or children
• Relative wealth or net assets of one or both parents
• Work or education related childcare expenses

The change cannot be temporary. The modification can be requested to either decrease or increase support payments.

However, if you were the petitioner in the initial case, you will remain the petitioner in the modification as well. Documents must be filed in the same court that issued the decree and have papers served on your ex-spouse.

What Happens After the Petition is Filed?

Once the petition is filed, the court issues a Domestic Relations Injunction. This orders you and your ex-spouse not to harass each other, change insurance or beneficiary coverage, transfer property or take an unexpected trip with the minor children while the case is pending. As soon as the petition is filed, the petitioner must abide by the injunction while the respondent must begin abiding by it when they are served the documents.

What If I am the Respondent?

If you are served with a Petition to Modify Support, you have 21 days if you were served in Utah or 30 days if served in another state to answer the petition. Both you and your ex-spouse must provide initial disclosures which include a financial declaration. It is possible the court will order both of you to try to come to an agreement through mediation. If you agree with the petition, you can file a stipulation by checking the “and Stipulation” box on the first page and sign it. Keep in mind both you and your ex-spouse must sign the stipulation. If you come to an agreement after mediation or negotiation, you can complete a new Petition to Modify and write “Amended” on the top of the first page.

Process for Motion to Adjust

The process for the Motion to Adjust is easier than filing a petition, but it still has certain post judgement requirements. Judges in Utah may rule on all types of motions, but commissioners are assigned to hear divorce case motions as well as other family law issues. You will want to contact the court where you filed the motion to find out whether it will be decided by a judge or a commissioner. The important difference is that a commissioner will simply make a recommendation to a judge who then makes the modification an order of the court. If you disagree with the commissioner’s ruling, you can file an Objection to a Commissioner’s Recommendation.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506