Monday, August 27, 2007

Child Support and the Child's Standard of Living

Reading the New Jersey Family Law Blog's Children are expected to benefit from the good fortune of their parents made me think about a subject I think we now overlook in Indiana. I dare to say that lawyers and judges jumped on the Child Support Guidelines and have clutched them tightly to ourselves. Perhaps the notion of higher mathematics seduced us with its offer of providing a solution to child support issues by relying only on numbers. We fail - and I include myself in my condemnation - to make the point that the child is to be kept to the same standard of living as if there had been no divorce and the child support guidelines act as a rough guide to that standard of living.

The New Jersey Family Law Blog noted that the father argued not an inability to pay but " whether the amount he was ordered to pay for his teenage sons represented the reasonable needs of the children".

In rejecting his claim, the appellate division commented that “in high parental income cases such as this one, the children’s needs must reflect the lifestyle opportunities in the context of the standard of living of the parties.” The opinion cites examples of this e.g. “private school tuition, private tutoring, summer camps, music or art lessons, sports clinics, vacations abroad and the provision of transportation for a child who drives.”

The Indiana Child Support Guidelines speak of the child's standard of living:
...The guidelines are consistent with the provisions of Indiana Code Title 31 which place a duty for child support upon parents based upon their financial resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved or had the separation not been ordered, the physical or mental condition of the child, and the child's educational needs.
That is from Guideline I, Preface. The following is from the Commentary to the Preface:

The Income Shares Model was developed by The Institute for Court Management of the National Center for State Courts under the Child Support Guidelines Project. This approach was designed to be consistent with the Uniform Marriage and Divorce Act, the principles of which are consistent with IC 31‑16‑6‑1. Both require the court to consider the financial resources of both parents and the standard of living the child would have enjoyed in an intact family.
As for the inability to pay argument, the Guidelines say the following: "
... it is not the intent of the Guidelines to drive the parents into noncompliance by reducing their spendable income below subsistence level." (Guideline 4, Commentary)

In Thompson v. Thompson the Indiana Court of Appeals discusses the children's living standards in regards to calculating child support when a child is receiving Social Security benefits from a parent. (PDF format, pages 4-7).

How often do those paying child support think their child support payments are the property of their former spouses? How many understand that the system is meant to keep the children somewhat protected from the economic shifts caused by a divorce? If most do not, then have we of the legal profession done our jobs properly?

Which does raise another big question: what is to be done if the child's standard of living declines even with child support payments as determined by the Guidelines?

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