Summary of the Child Support in Alabama
The child support laws are found primarily in Title 30, Chapter 3 of the Alabama Mitchie Code (30-3-1), which covers Marital and Domestic Relations. The Code provides updated case law for all relevant family law related action that has been tried and decided in the state. Additionally, Alabama has Chapter 9 Child Custody, Visitation, and Support guidelines which concerns Family Law Practice and Procedure in the State. These codes are extensive and provide very detailed accounts of court decisions that could help an individual find answers relating to child support payments.
Rule 32 provides the judicial guidelines that are used to determine the amount of support.
Procedural Process for Obtaining Child Support
The venue for child support proceedings or modifications will lie either in the original circuit court rendering the final decree or in the circuit court of the county where both the current custodial parent or where the most recent custodial parent, that parent having custody at the time of the child's attaining majority, and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.
Under the child support guidelines both parents are responsible for completing Form CS-41 which is an Income Statement/Affidavit. Intentional falsification of income is a contempt of court. When cases are settled or tried, both parties must submit these income affidavits so the court can make a judgment. If the non-custodial parent fails to submit an income affidavit or appear before the court, the custodial parent may supply their own income information along with evidence of the non-custodial parentsí information such as a W-2 or pay stub to provide the court with evidence of earnings. Form CS-42 must be completed which is the Child Support guideline form. If this form is not completed, then a decision may be reversed. When cases are settled, Form CS-43 must be completed. This is a Notice of Compliance which explains to the Court why the guidelines have or have not been followed along with factual support.
Liability for Child Support
Typically the non-custodial parent will be required to pay child support. This duty will carry over to adopted parents who subsequently divorce as well. In cases of joint custody, the child support guidelines do address this type of situation therefore this is likely the type of situation the court may deviate from the guidelines and make a case by case determination of support. If parents split custody, or each take one child, then the court will compute the amounts that each parent would owe the other in the event they had both children and subtract the difference to determine who pays who and how much. The difference will be the child support payment.
Eligibility of Children to Receive Child Support Payments
In order to receive child support, it is typically required that one be a non-emancipated minor child. However, in some cases the courts of Alabama have required parents to help continue supporting the child with a college education after balancing the parentsí financial situation and the educational needs and capabilities of the child. Furthermore, in several cases the courts of Alabama have enforced a fatherís agreement to continue paying child support past the age of majority if the decree is enforceable and also when the child is mentally or physically dependent and the non-custodial parent is capable of support. In that case, the court may require that child support payments be paid to the child. Typically, unless special circumstances exist, child support will not be granted to adult children.
Calculation of Child Support in Alabama
Child support is calculated from the actual gross income of the parents. There are guidelines for the court to follow which may determine the amount that the parent will need to pay unless the parent rebuts with facts. However, the proper amount should be determined on a case by case basis and should arise from the facts and circumstances surrounding each individual family.
The guidelines that have most recently been adopted are deemed correct unless proven otherwise. If the parties have a combined gross income of less than $800 a month or more than $20,000 a month, then the support to be granted is at the trial courts discretion with consideration of the childís expenses. According to the new guidelines for amount determination, the income of the custodial parent is taken into consideration but is also based on an ďincome share modelĒ that focuses on the parents continuing to share in financial obligations. This is done to keep the child in a similar position that he was in before a separation of the parents so the child may enjoy a similar standard of living. These guidelines will apply to original or modification proceedings, and to temporary and permanent awards of child support.
In cases of parents who have joint custody, the court will determine the support on a case by case basis and deviate from the guidelines. In situations where the parents share custody, the court will compute the support the father would owe the mother if they were in her sole custody, then compute the support the mother would owe the father if they were in his sole custody, and subtract the lesser support obligation from the greater. The parent who has a greater obligation will be required to pay the difference.
Child Support Coverage in Alabama
Child support covers the costs of raising a child and the childís expenses. The goal is the keep the child in a similar standard of living as they were prior to a divorce, separation, or a financial situation if the parents were together. This now includes health care needs which may include health insurance or cash medical support.
Deviation of Child Support Guidelines by the Court in Alabama
The Court will deviate from the guidelines for five reasons. First, if the shared physical custody is in excess of what was customarily decreed. Second, if visitation rights are in excess of what was customarily decreed. Third, for extraordinary transportation costs of the parent. Fourth, deviation may be allowed for college education expenses for the minor child. Finally, the financial resources of the child will be taken into consideration. Additionally, other circumstances may exist in which the court will allow deviations from the guidelines.
However, in order to deviate from the guidelines, there must be facts to support that the amount is unjust or inequitable. In order to successfully deviate, the parent may need to prove facts such as difficult financial circumstances, inability to support self and pay the guideline amount, and if the actual needs of the child differ from the guideline amount. The courts of Alabama have also held that mere possibility of future unemployment, other parentís failure to pay support, and misconduct between the parents are not sufficient reasons to deviate from the guidelines.
Computation of Income for Child Support in Alabama
According to the tax code, gross income is income derived from any source. This includes salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trusts, annuities, capital gains, and many other sources of income. Therefore, about every source of money will be considered in calculating the gross income of the parent. Also, just because a source of income may not be subject to any income tax does not exclude it from gross income for purposes of determining support. The court will consider oneís ability to earn as a factor in deciding the amount of child support. If the mother of the child is to have custody, her income may be taken into account in determining the amount of support necessary for the child. While the courts will not order support in extreme amounts that require a party to sacrifice all of their income, an attempt to deliberately reduce or terminate the income will be taken into consideration and the ability to earn may become the basis for the child support payments. Pre-existing alimony payments will not be included in gross income.
Enforcing a Child Support Order in Alabama
If a parent is failing to make court ordered child support payments, the custodial parent should contact the Child Support Enforcement division in Alabama. This is a joint Federal and State effort that will help secure compliance with child support court decrees.
Failure by the non-custodial parent to pay child support can lead to many consequences and the custodial parent is not without remedies. First of all, the failure to pay can result in a suspension or revocation of driving privileges, failure to obtain or revocation of a passport, as well as being held in contempt of court. The state of Alabama, however, does not condone imprisonment as a punishment for failure to pay support. Additionally, inability to pay is a complete defense.
The best way to enforce payment is to get a court order directing the non-custodial parentís employer to deduct child support from his/her wages.
The custodial parent can also report the non-custodial parent to credit bureaus for being over $1,000 behind in payments, or have a lien put on personal property to hopefully satisfy the debt in the event of a sale.
The state can report the parent to the IRS to have the support deducted from their next tax return. Also, it is a federal crime to cross state lines with the intent to avoid paying child support.
Modification of Child Support Order in Alabama
The parent of minor children may not cancel or modify a previous child support judgment without first receiving approval of the court. However, if a modification is sought, then the trial court may modify a prior decision if they find that there has been a material change in circumstances. This can occur even if the parent responsible for paying child support is behind in payments, also known as being in arrears. In the case that the parents had an agreement for specific child support payments, the court should not modify the amount unless there are clear and sufficient reasons for modification after ample consideration and investigation. Overall, the court should once again look to the needs of the child and the parentís ability to pay.
The burden of proof is on the parent seeking a modification to prove that a material change in circumstances has occurred.
Child Support by Agreement in Alabama
Child support agreements between parents will be enforced if it is included in the divorce action and adopted by the court as a final decree of divorce proceedings. However, parents may not permanently remove the obligation to pay child support from another by agreement. Further, ambiguous amounts in agreements may be unenforceable. The basic premise is that child support is for the child, and therefore parents do not have the authority to nullify a child support decree which deprives the child of their right to financial support.
Effect of Joint Custody on Child Support in Alabama
If the court is granting joint custody, they will require the parents to submit an agreement covering matters relevant to care but also regarding child support. It will have an effect on the applicability of the support guidelines and will be seen as a reason to deviate from the guidelines. In such circumstances, the court will determine the amount of support necessary on a case by case basis.
Child Support Attorney
While Alabama has the Child Support Enforcement that can assist a person in getting child support, an attorney can be helpful if you run into difficulties, even if your separation or divorce was amicable. Attorneys can help protect your interests as a neutral party to the proceedings as well as make sure all the proper forms are filed in a timely manner. Additionally, an attorney can help establish paternity, get you a court decree for amount of child support payments, or help establish the factual circumstances necessary to achieve modification. An attorney can also be very helpful in helping their clients make decisions such as the best way to receive the child support payments or assist the client in getting the support payment enforced.