Not Pay Child Support

As a parent, you have an obligation to pay child support. Getting out of this obligation can be very difficult, and parents are relieved of their responsibility only in limited situations. Nevertheless, if you want to stop or lower your child support payments, you do have some options.

Steps

Understanding Child Support Calculations

  1. Understand the purpose of child support. Child support is designed to allow a child to enjoy a standard of living that is approximate to what he or she would have enjoyed had the parents lived together. Child support may be ordered when the parents are separated, have never lived together, or are in divorce, dissolution of marriage, annulment, or in the midst of paternity and legal separation cases.[1] Typically, it is paid to the parent with whom the children spend the majority of their time.[2]
    • Child support is not alimony. The purpose of alimony is to rehabilitate or support a former spouse. Though the other parent may financially benefit from child support payments, the purpose of the payments is to benefit the children who no longer live with you.
    • Once set, child support payments can only be modified by court order.
  2. Read your state laws on child support. Each state has formulas for determining child support payments, typically found in statutes. You may find your statute by typing “child support” and your state into a web browser. These formulas consider the child’s needs and the parents’ ability to pay.[3] These formulas, however, are often only “guidelines,” which a judge can deviate from.[4] Typically, courts can consider a variety of factors when setting child support payments:[5]
    • The parents’ income. Some states consider only the non-custodial parent’s income, while other courts consider both. Also, some states use “gross” income while others consider only “net” income (income after taxes and allowable deductions, such as taxes and/or union dues).
    • Child support or alimony that either parent receives or is paying from a previous marriage.
    • Which parent is paying for childcare and health care.
    • Whether either parent is responsible for children other than the children from the current marriage.
    • The number of children each parent is supporting and their age. This factor is important because the expenses of raising children do not double for each child you add.
    • Whether either parent lives with a new partner or spouse who contributes to household expenses.
    • If the child is disabled. If your child is disabled, support payments could continue indefinitely if the child is not capable of self-care.
  3. Meet with an attorney. An experienced attorney can help you strategize ways of lowering your child support payments. An attorney also may have particular experience with local judges and will know what the judges are looking for when considering a modification to child support.
    • To find an experienced family law attorney, you can visit your state’s bar association website. States often run referral services, which you can call or email.

Petitioning the Court to Stop Payments

  1. File a petition to terminate support. Sometimes the court will terminate a parent’s support obligations. However, this only happens in certain specified situations:
    • You have no income. Most states will grant a non-custodial parent’s petition to temporarily suspend child support if the parent has lost his or her job or has become disabled and is in the process of applying for disability benefits.
    • You are being incarcerated.[6] Some states will allow temporary suspension for incarceration; however, other states will not.
    • The child reaches the age of majority.[7] In most states, a parent can stop paying when a child reaches the age of majority (18 in most states). However, in some states a parent is obligated to pay until the child reaches 21.
    • The child dies.[7] Even at the child’s death, you must petition the court to stop payments. You cannot just stop paying on your own.
  2. Fill out a petition. Your state probably has prepared “fill in the blank” forms for you to fill out. You must find the right form to modify your child support payments. In different states it will go by different names: “Petition/Motion to Modify Child Support,”[8] “Motion Regarding Support,”[9] or some other title.
    • You can always ask the court clerk what form you need to fill out. Although the court clerk cannot offer legal advice, he or she should be able to point you to the right form to fill out.
    • If you have questions, see if the court has a self-help center or a family law facilitator. Because family law cases make up such a bulk of the court’s docket, many courts have staff who can answer legal questions and help you fill out forms.
  3. File the petition. You will need to take the completed petition to the court clerk to file. Be prepared to pay a filing fee.[9]
    • If you can’t afford the fee, then ask for a fee waiver form and fill it out.
    • You will also need to serve notice on the other parent. Typically, notice can be served personally using the sheriff, a professional process server, or someone over 18 who is not involved in the case. Ask the court clerk for the form you need to fill out and how to pay any applicable fees associated with service.
  4. Attend a hearing. After filing the forms, you should ask for a hearing date.[8] You may be given a date at that time or have a date mailed to you.
    • Be sure to bring sufficient documentation to the hearing. Necessary documents will depend on your grounds for seeking to have your child custody payments stopped. If the child has died, then bring a death certificate. If you have no money, then bring pay stubs, bank statements, tax returns, and any other financial information.[8]
  5. Take a possible appeal. You may have the option to appeal a child support determination. Ask the clerk for the Notice of Appeal form. It may go by a different name, depending on your state and court. Nevertheless, clearly ask how you can appeal.
    • To appeal, you need to have some objection to the judge’s interpretation of the law or the judge’s understanding of the facts. In practice, it is difficult to appeal a child custody order because judges are given discretion when setting the amount you must pay.
    • After securing the appeal form, fill it out and file it. You will probably need to provide notice to the other parent as well.

Obtaining Custody of Your Children

  1. Understand what you need to prove at court. Another way to stop child support payments is to obtain custody of the child. If you ask for custody, the court will look to a variety of factors to determine what is in the child’s “best interests.”[10] These factors will differ by state. They will be listed in either a statute passed by the legislature or in a court opinion issued by your state supreme court.
    • Courts will look at different factors, depending on state. Michigan, for example, considers: the love and affection existing between the parties and the child; the ability and willingness of the parties to provide food, shelter, clothing, and medical care; moral fitness of the parent; stability of the custodial environment; and mental and physical health of the parties, among other factors.[11]
    • Among a variety of factors, Kentucky considers the wishes of the child; the child’s adjustment to home, school, and community; the mental and physical health of all individuals involved; as well as the interaction and interrelationship of the child to each parent and to siblings.[12]
    • To find the specific factors for your state, search online for “best interests of the child” and then your state.
  2. Consult with a lawyer. Custody determinations are complicated and important.[13] An experienced attorney may have insight as to what judges will consider persuasive evidence that custody should be modified.
    • Even if costs are a concern, some attorneys provide “unbundled services,” which means that they will provide limited services such as document preparation, legal advice, or coaching for a flat fee.
    • If at any time you are confused about how to proceed, you should seek out a lawyer’s assistance. To find an experienced, local family lawyer, search your yellow pages or perform an internet search for “child custody attorney” and your city or county.
  3. Locate the appropriate court. Generally, you will file your petition in the county where your child lives.[14] This is true even if you live in a different county.
  4. Find the forms. To modify custody, you need to file a petition with the court. Your courthouse should have preprinted, “fill in the blank” forms for you to fill out. Stop into the courthouse or look on this website.
  5. Complete the forms. Fill out the forms accurately and completely. The forms may request financial information, such as how much you make in a year and the present cash value of life insurance or retirement accounts. Give yourself plenty of time to fill out the forms.
    • Some states require an online interview, which helps generate the appropriate forms. You may have to create a username and password in order to access this program.
  6. Get the completed forms notarized. Once you have completed the appropriate forms, you may need to sign them in front of a notary.
    • You can find a notary by visiting your state’s Department of State website. Also, many banks have notary services available for a fee. Many courthouses provide notary services as well.
    • You must bring sufficient personal identification to prove to the notary that you are who you say you are. Acceptable identification includes a driver’s license, a passport, or a state-issued personal identification card.
  7. File the forms. File the original set of documents with the clerk of court. Keep several copies for your records as well as to mail to the other parent. You will probably be asked to pay a filing fee. Ask the clerk to stamp your copies with the filing date.
    • If you cannot pay the fee, ask for a fee waiver and complete it. Do not be embarrassed to ask for it if you cannot pay.
    • The clerk will also need to sign your summons, which will be returned to you.
  8. Serve the other parent. Attach the original summons to the copy of the documents for the other parent. Depending on your state, you can serve them in a variety of ways:
    • You can pay the sheriff's office to serve them.
    • You can pay a private process server to serve them.
    • You can arrange for a friend or relative (not involved in the case and over the age of 18) to serve them. This person must complete a “Proof of Service” form as well.
    • Arrange for a friend to mail the papers registered or certified mail, return receipt requested, with delivery restricted to the other parent only.
    • You probably cannot serve the papers yourself. If you have questions about acceptable methods of service, ask the court clerk.
  9. Wait for the answer. The other parent will have to answer your petition. You should receive a copy. If you don’t, then call the clerk and ask if it has been received.
  10. Attend a hearing. At the hearing, you will have to present evidence why you believe that custody should be changed. You may present witnesses and seek to introduce documents.
    • To properly seek custody, you should have an attorney represent you in court. Preparation for the hearing could be extensive: you will need a list of witnesses who can establish that it is in the best interest of the child that he or she live with you, and you will need to prepare to testify.
    • For more information on seeking full custody, see wikiHow’s How to Change Child Custody.

Lowering Your Child Support Payments

  1. Gather evidence of changes in circumstances. Judges have the power to modify an existing child support order and also have the power to set an amount lower than the state guidelines suggest.[15] However, the judge will want to see evidence of changed circumstances: reduced earnings, increased expenses, etc. Before filing a petition with the court, you should gather the following:
    • recent pay stubs or other evidence of self-employed income.
    • evidence that your familial obligations have changed, e.g., the birth of another child.
    • medical records, if you have become disabled.
    • the amount of time you spend with the child.
  2. File a Petition to Modify Child Support. To lower your payments, you will need to file a motion in court to modify your child support payments.[16] You will need to file this motion in the court that issued the initial child support order.[17]
    • Most courts have pre-printed “fill in the blank” motion forms. You can check with the court clerk to see if they have a form. Also ask if you need any additional forms, such as a Financial Affidavit. You can find relevant forms by visiting this website.
    • If your court does not have a pre-printed form, then use a form as a guide as you draft your own motion. Use the caption information from an earlier motion (from the initial child support case). In the body of the motion, list the reasons why you want the court to reduce your child support. Sign the motion.
    • You will have to provide the other parent with notice.[16] The easiest option is to have the sheriff personally serve the papers on the other parent for a small fee. Ask the court clerk about acceptable service.
  3. Argue that you are paying “extras.” In your motion, you may argue that you have been paying more than what the child support order required. For example, you might have picked up 100% of your child’s school tuition or medical insurance. If so, you might be able to get the child support lowered.[15]
    • The “extras” must be substantial. Simply buying clothes or presents for your child will not qualify as substantial.
  4. Identify a change in financial circumstances. You can argue that your financial conditions have changed such that a modification of child support is justified. The change must be substantial and permanent. Also, you cannot have voluntarily changed your financial situation by leaving a high-paying job for a lower-paying one, or quitting work altogether.[15]
    • Any change in the custodial parent’s financial condition should also be mentioned. If the custodial parent’s income has increased dramatically, then you could ask for a reduction in your payments. As a general rule, changes that would alter the child support order by 10-25% (depending on your state) qualify as sufficiently substantial to warrant filing a petition.[15]
    • Some states allow you to petition for a change without alleging a substantial change if at least three years have passed since the prior child support order.[16]
  5. Submit a joint request to the court. If the other parent doesn’t object, you could agree to modify the payments. Even if you agree, you must nevertheless have your agreement approved by the court, as the court will always need to assure itself that the change is in the child’s best interests.
    • Get the form. Often, courts will have special forms for joint requests. Massachusetts’ form is here. The form may also be called an “Uncontested Motion”[18] or a “Stipulation to Modify a Prior Court Order.” Both parents must sign.
    • You also should fill out and complete a Child Support Worksheet. Every state has a worksheet. You can find your state’s by searching on the web. You should have already filled out the worksheet when determining your initial child custody payments.
  6. Attend the hearing. At the hearing, the judge will need to determine if it is in the child’s best interests to lower your child support payments. You should prepare your argument by outlining important points that you want to make.[19]
    • As the petitioner, you will go first. You will present witnesses and evidence that supports your argument that your child support payments should be lowered. The other parent, as the respondent, will go second.[19]
    • If you and the other parent mutually agreed to lower the support payments, then you may not have to attend a hearing.[19] However, you must remember that judge must approve the agreement and is free to refuse to lower your payments.

Giving up Your Parental Rights

  1. Consent to an adoption. You may place your child for adoption or allow the spouse of his or her other parent to adopt. Consenting to an adoption will terminate any child support obligation you have. At the same time it will also terminate your parental rights.
    • The easiest adoption to consent to is a step-parent adoption.[20] If the other parent marries someone, then that person may want to become the child’s legal parent.
    • For a step-parent adoption, you will need to give your consent.[20] Depending on your state law, you can give consent in a signed affidavit, or you may need to go to court and tell the judge that you consent to the adoption.
    • Understand that when you give up your parental rights you also give up any right to direct the child’s upbringing. You also have no legal right to see the child, though the child’s parents may allow you to see the child, if they want.
  2. Contest parentage. If you do not believe the child is yours, then you may be able to contest your parentage and avoid a support order. You must do this immediately after the divorce or paternity case is started.
    • To contest paternity, you will probably have to take a DNA test.[21]
    • If you want to contest parentage, you are strongly encouraged to meet with a lawyer. You may mistakenly, and without knowing it, accept responsibility for a child. For example, if you file a divorce petition alleging that there are minor children, or if you fail to object to your spouse’s allegation that there are minor children, then the court may prevent you from later denying that the child is yours.
  3. Abandon your child. In some states, willful abandonment of a child for a period of six months to one year is grounds for termination of parental rights. Because you are the non-custodial parent, be sure the child is in the custodial parent’s care. Check your state’s statues to determine if it allows for termination of parental rights, and if child support obligations are also terminated. Sometimes, parental rights will be terminated but support obligations will remain. To find your state’s statues:
    • Check your state’s website. Many state websites provide users with a searchable state code or a link to the state code on another reputable website. Use the Internal Revenue Service’s State Links page to find your state’s website.
    • Use your favorite search engine. You may locate your state’s code by running a search at your favorite search engine. Search “YOUR STATE code.” For example, if you live in New York, you would search for “New York code.”
    • Check with an attorney. It is a risk to abandon your child. First, the state can still garnish your wages if they can find you. Second, the court could put you in prison for non-payment of child support as well as suspend your driver’s license or put liens on any property you own.

Warnings

  • You should never sign anything that may affect your legal or financial rights or obligations without first consulting an attorney.
  • Failure to pay child support is contempt of court and is a felony is most states.

Related Articles

Sources and Citations

  1. ↑ https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/lawfactspamphlet-33.aspx
  2. ↑ Nolo’s Essential Guide to Child Custody & Support, Emily Doskow (chapter 3).
  3. ↑ http://responsibledivorce.com/legal/child-support.htm
  4. ↑ Nolo’s Essential Guide to Child Custody & Support, Emily Doskow (chapter 3)
  5. ↑ Nolo’s Essential Guide to Child Custody & Support, Emily Doskow (chapter 3).
  6. ↑ http://www.acf.hhs.gov/sites/default/files/ocse/realistic_child_support_orders_for_incarcerated_parents.pdf
  7. ↑ 7.0 7.1 http://www.lawyoming.org/wp-content/uploads/2012/03/02-Instructions-for-Termination-of-Parental-Rights1.pdf
  8. ↑ 8.0 8.1 8.2 http://www.courts.state.md.us/family/forms/supportonlymodification.pdf
  9. ↑ 9.0 9.1 http://courts.mi.gov/administration/scao/forms/courtforms/domesticrelations/support/foc50.pdf
  10. ↑ http://family-law.lawyers.com/child-custody/the-childs-best-interests-in-custody-arrangements.html
  11. ↑ http://courts.mi.gov/administration/scao/resources/documents/publications/manuals/focb/custodyguideline.pdf
  12. ↑ http://www.lrc.ky.gov/Statutes/statute.aspx?id=1464
  13. ↑ http://www.womenslaw.org/laws_state_type.php?id=11149&state_code=GE
  14. ↑ http://info.legalzoom.com/petition-court-custody-21363.html
  15. ↑ 15.0 15.1 15.2 15.3 Nolo’s Essential Guide to Child Custody & Support, Emily Doskow (Chapter 9)
  16. ↑ 16.0 16.1 16.2 http://ptla.org/motion-modify-family-law-judgment
  17. ↑ http://www.masslegalhelp.org/children-and-families/child-support-change-how
  18. ↑ http://www.courtrecords.alaska.gov/webdocs/shc/family/docs/shc-1505n.pdf
  19. ↑ 19.0 19.1 19.2 http://www.selfrepresent.mo.gov/page.jsp?id=38396
  20. ↑ 20.0 20.1 http://www.nolo.com/legal-encyclopedia/stepparent-adoptions-29643.html
  21. ↑ http://www.legalmatch.com/law-library/article/fathers-rights---contesting-paternity.html
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