In 1989, all states quickly adopted one of two formulas, or some derivation
thereof, to calculate a presumptive child support amount for every case.
Needless to say, these formulas do not take your case or circumstance into
account. In fact, they take almost no one's into account, which is why their
results are out of sync with reality. It is also why they can be, and are,
successfully challenged.
[I am not a lawyer and this is not legal advice. Use a lawyer and economics
expert for your case.]
An important tenet of our legal system is that no statutory presumption may
be arbitrary. That is, the courts must judge each case on its own merits and
no law can prevent that. [Morgan v. Georgia, 279 U. S. 1 at 6 (1929); Leary v.
United States, 395 U. S. 6 at 32-37 (1969). Thanks to John Remington Graham
for the citations.]
If any child support guideline fails to take your particular situation into
account, the court must.
Percentage of Obligor (also called the Wisconsin Model) is the most arbitrary
and irrational. It was adopted by 13 states such as New York, Wisconsin,
Mississippi, and Illinois. It comes from an early 1980s study on poverty when
the University of Wisconsin's Institute for Research on Poverty commissioned
Jacques Van der Gaag to head their "The Child Support Project." Their final
paper is called, "On Measuring the Cost of Children." The title makes it sound
appropriate for general use. Pretty hard to assail.
It determined percentages of the obligor's gross income that could be used for
child support awards, depending upon the number of children:
1 child 17%
2 " 25%
3 " 29%
4 " 31%
5 " 34%
But what is the basis for these numbers? How arbitrary are they, or how
arbitrary is it to apply them to your case?
This was a poverty study. It studied people on welfare. The public policy
concern of the time and impetus for all child support efforts was children in
poverty, so the states that implement this are applying to everyone a formula
meant only for very low income families.
Indeed, at welfare levels, these percentages produce fairly reasonable child
support awards, but only based on the following assumptions:
- No taxes paid by the NCP. (He doesn't make enough.)
- The CP has no income. (Welfare mom.)
- NCP spends no time with the children.
If any of the above is not true of your case, the court has no reason to apply
this formula. In earlier papers from the Child Support Project, the authors
explicitly say that generally, both parent's incomes should be considered,
plus an allowance made for self-support, and that these particular percentages
cannot be applied at higher income levels.
If the people who produced the formula say this, it's hard for the judge to
ignore it.
Using this formula, if you are making $35,000 a year with two children, you
will pay $729 a month in child support whether your ex makes $100,000 a year
or nothing, and whether you are directly caring for the child half the time
or never.
More capricious is the use of gross income instead of net. At $35,000 a year
and two children, your $729 a month is about 35% of actual (net) income. But
at $70,000 a year your $1,460 a month is almost 50% of what you actually get.
A fixed percentage of gross income is an increasing percentage of actual (net)
as income rises.
One hundred years of economic studies have never shown this progression of
rising percentage of net income spent on children, but the opposite. There
is simply no rationale for applying this formula to non-poverty families.
Too few people and groups are fighting this.
Copyright © 2004 K.C.Wilson.
K.C. Wilson is the author of
Male Nurturing, The Multiple Scandals of Child Support, and other e-books
on family and men's issues.
