Co-Counsel Bulletins

CHILD SUPPORT: HOW MUCH IS ENOUGH?

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INTRODUCTION.
Much has been written on the importance of enforcing child support and how to do it. Little is said, however, regarding how much child support is enough. How do you counsel a client on what to demand, accept or offer for child support? It is vitally important to know how to negotiate a fair result for the children.

AN EXAMPLE.
You have just finished an interview with Mrs. Clara Smith. Her husband, Elmo Smith, is a soldier, and they have just separated from each other. They have two minor children Before the separation the family was surviving on Elmo’s $1,400 per month take-home pay and the part-time paycheck of Mrs. Smith in the amount of $600 net per month. You have been asked by Mrs. Smith, who has custody of the children, to tell her how much child support she needs to get.

A WORD OF CAUTION.
Lawyers have a hard enough time figuring out (under the guidelines) how much support a child is entitled to or how much a client should pay. It's impossible, and very likely unethical, for you to get into the business of telling your client how much child support she needs. You don't know! You may be able, however, to help her estimate how much child support she would get in court and, therefore, what are the most likely figures and terms for a child support settlement.

LAWYER'S ETHICS -- THEORY AND PRACTICE.
A lawyer is professionally obligated to let the client make the major decisions in any legal matter. The attorney is free to make any and all necessary judgments regarding tactical and strategic trial issues.

This does not mean, in a practical sense, that the client is left to decide alone such substantial issues as the amount of child support to pay or accept. The attorney must be "at the right hand" of the client at every step of the way. Only with the lawyer's guidance can most clients reach an intelligent decision and give what doctors call "informed consent" to a settlement or a plan for trial. As a practical matter, one aspect of this guidance would be to help Mrs. Smith fill out a financial affidavit or monthly budget. In this way, she could see realistically what she needs for survival each month.

THE STATUTORY APPROACH.
North Carolina General Statutes Section 50-13.4(c) says that child support shall be determined based on the children's reasonable needs, the parents' assets and incomes, the needs of the parties, everyone's accustomed standard of living and other relevant factors. Try to explain to Mrs. Smith whether that tells us everything ...or nothing. All the statute says is that those factors shall be considered by the trial court judge.

The court does not have to decide child support on the basis of any one or other of these factors. A casual reading of the statute can lead one to believe that child support may be set at any amount, so long as consideration is given to the statutory factors.

This approach is clearly unsatisfactory. Not just "any amount" will do for an adequate level of child support. Just ask your clients--even a modest 20% difference really matters in child support cases, the difference between $500 per month child support and a reduction to $400 or an increase to $600. Such a differential can really matter for a reasonable budget and a decent level of child support for many clients. It can also, in the case of many wage-earner parents paying child support, mean the difference between bare subsistence, comfortable existence and financial ruin. "Statutory-approach" advice to the client is practically meaningless.

MILITARY GUIDELINES.
Since her husband is in the military service, Mrs. Smith should first be advised of the child support guidelines of the military service. These regulations for family support vary with each branch of the uniformed services. For a quick overview of the different regulations for the Army, Navy, Air Force, Marine Corps, and Coast Guard, visit the most recent Army JAG School Legal Assistance Course curriculum and materials, by going to www.jagcnet.army.mil/tjaglcs >Other TJAGCLS Publications >Legal Assistance. The course book is available there and will contain a section on DOD (Department of Defense) support requirements. Be sure to check the military guidelines as a starting point when your client is in the military. This advice also applies when he or she has a present or former spouse on active duty.

NORTH CAROLINA'S CHILD SUPPORT GUIDELINES.
Whether or not your client is a military member or dependent, you must be aware of the North Carolina Child Support Guidelines. These are used every day in trials and settlement negotiations across North Carolina. Use of these Guidelines is mandatory in courtroom cases unless specific findings are made by the judge as to why the "Guideline amount" of child support would be inequitable. The primary components of computing child support under the Guidelines are the proper worksheet and the chart showing Basic Child Support Obligations.

There are three worksheets:

• Worksheet A is designed for sole custody situations, and it covers most child support cases. It is used where the child or children live primarily with one parent (or, to be both specific and technical about it, do not stay for 123 or more "overnights" per year with the noncustodial parent).

• Worksheet B is used for a "joint or shared" custody case, which is any arrangement where the noncustodial parent has the child or children for 123 or more overnight visitations per year.

• Worksheet C is the split custody worksheet; it is used in cases where each parent has custody of at least one minor child.

The Administrative Office of the Courts (AOC) has developed the worksheets and Basic Child Support Obligation chart. Copies are available at every county courthouse and child support enforcement agency office. Each worksheet also has the instructions on the reverse. The worksheets are used to compute child support by calculating the combined income of the parents (with adjustment for medical insurance and for other children of the parties), determining the Basic Child Support Obligation based on this income figure, adding the tax-adjusted cost of work-related child care expenses, and then prorating the resulting amount between the parties according to their incomes. The Basic Child Support Obligation is contained on a chart that carries figures for support for children of parents with combined incomes of up to $10,000 per month. You can find North Carolina’s Schedule for Basic Child Support Obligation and the child support worksheets at nddhacts01.dhhs.state.nc.us. The on-line child support guideline calculator is available at www.nc-aaml.com. The best over-all guide to the North Carolina Child Support Guidelines is the 2002 family law bulletin written from the NC School of Government, available for free download. The website for the school is www.sog.unc.edu and it’s located under Family Law in “Publications.”

VARIANCES.
Child support is not required to be consistent with the Guidelines in every case, but there must be a statement of why the amount varies from the Guideline amount for a legal order or incorporated agreement. Under G.S. 50-13.4(c), if the court finds by the greater weight of the evidence that application of the Guidelines would fall short of (or exceed) the child's reasonable needs, or would otherwise be unjust or inappropriate, the court may order child support that varies from the Guidelines. Some of the reasons that may justify variance are as follows:

(1) The special needs of the child, including physical and emotional health needs, educational needs, day-care costs, or needs related to the child's age.

(2) Any shared physical custody arrangements or extended or unusual visitation arrangements.

(3) A party's other support obligations to a current or former household, including the payment of alimony.

(4) A party's extremely low or extremely high income, such that application of the guidelines produces an amount that is clearly too high in relation to the party's own needs or the child's needs.

(5) A party's intentional suppression or reduction of income, hidden income, income that should be imputed to a party, or a party's substantial assets.

(6) Any support that a party is providing or will be providing other than by periodic money payments, such as lump sum payments, possession of a residence, payment of a mortgage, payment of medical expenses, or provision of health insurance coverage.

(7) A party's own special needs, such as unusual medical or other necessary expenses.

(8) Any other factor the court finds to be just and proper.

THE HIDDEN FACTORS.
Clients need to be informed about much more than the "cash amount" of child support. Child support cases involve at least two other hidden factors--medical insurance and uncovered health care expenses (UHCE). Be sure to remind your clients about these additional matters and their importance.

These days health insurance covers most, but not all, medical expenses. At the outset it is vital to find out whether the nonmilitary parent has private medical insurance covering the children and what is covered. A typical policy may have an annual deductible amount of $250, cover 80% of most medical expenses and exclude entirely such items as elective surgery, routine physical examinations and dental work.

Military dependents are entitled to medical treatment at military hospitals and are covered for civilian health care purposes by TRICARE, which covers a portion of allowable medical expenses. This is the military equivalent of medical insurance. TRICARE is a cost-sharing program. Just like any private medical insurance program, there is an annual deductible amount and co-payments are required. Information about TRICARE can be found in the TRICARE Standard Handbook, available at the nearest uniformed services medical facility or through the TRICARE Management Activity, 16401 E. Centretech Parkway, Aurora, CO 80011-9043. Information is also available from the TRICARE website.

As to coverage alternatives to negotiate for the children, one option for parents who are both working is to have each parent maintain insurance. This provides "double coverage" (usually through TRICARE and, for the non-military spouses, an employer-sponsored plan) and reduces uncovered medical expenses to a small amount.

Another alternative is to have the noncustodial parent maintain medical coverage (either through TRICARE or private insurance) while both parents split the uncovered portion equally (or in some specified ratio, such as ¾ for dad and ¼ for mom). The advantage of this option is that it puts part of the financial burden on both parents, and gives them both an incentive to economize.

A third approach to consider is the payment of extraordinary unreimbursed amounts on behalf of the child. In case of a catastrophe, it would appear that the party earning more income should be liable for excess payments. Where the father earns more than the mother, such a clause might state that medical insurance would be maintained by the mother, that the uncovered part would be shared equally by the parties up to an annual per-parent ceiling of $300, and that any uncovered expense in excess of this amount would be paid by the father.

A client may be concerned that she or he may never receive those reimbursements from the noncustodial parent, who at various times is thousands of miles away. If possible, negotiate an agreement for the following (or advise the client about going to court for this): Find out what the health care expenses for the children have been for the last year or two - what was covered, what was out-of-pocket. Then include those specific uncovered health care expenses in the monthly child support, based on the proper share for the noncustodial parent (30%, 75%, or whatever). That way, Mrs. Smith gets a monthly portion of the unpaid medical expenses through an increase in her child support. While the amount may be inaccurate, and it may be too large or too small in any given month, it will give her some relief in this area and will be roughly adequate so long as the children’s expenses for health care stay in the same ballpark.

For medical care and health insurance, it is first necessary to determine whether the child (or spouse in an alimony case) is enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). If the family is intact, the military member (also known as the “sponsor”) initiates the dependent's enrollment by filling out DD Form 1173. When the family is separated, the custodial parent can start the process by mail and then come in to the nearest military base to sign the final documents. With a child over ten years old, a military dependent ID card will be issued and the child’s picture will be taken. Contact the nearest military installation for more details. The location of the nearest place for enrollment or military installation can be obtained from the DEERS Telephone Center: 800-538-9552.

Once a child is enrolled in DEERS, he or she is eligible to receive medical care in two ways:

• Medical care and medications may be obtained from military hospitals and clinics at no charge; or
• TRICARE can be used with civilian health care providers. It is usually best to use military facilities for medical care, since it cuts down on paperwork, time and costs. The branch of service of the enrollment site doesn’t have to match the branch of service of the military parent; thus although the father may be in the Air Force, the family members can get treatment at the nearest Navy facility, for example.

Children born outside marriage are entitled to medical care TRICARE if the following conditions are met:

a. The child is acknowledged and supported by the member; or
b. There is a judicial decree of paternity.

A military ID card is issued to prove eligibility. If the member will not cooperate in getting a card for the child, his or her commander can coordinate issuance of the card.

A PROBLEM OF DEFINITIONS.
What are these uncovered health care expenses? Depending on plan language, the finances of the parents and the needs of the children, they might include prescription drugs, psychological counseling, dental checkups, orthodontia, eyeglasses, psychiatric treatment, routine physical examinations and cosmetic surgery. Not all of these costs can be readily foreseen. And it is just as difficult to decide whether to "spell it out" or leave it the parties (or the judge) to work out who pays for what. A custodial mother, for example, may be wise not to specify what UHCE means if doing so would jeopardize an otherwise fair and generous order or agreement. A noncustodial father, on the other hand, might want to exclude specifically orthodontia and elective health care procedures from UHCE treatment. The lawyer must also pay particular attention to the benefits presently provided by the health care plan, since some of these items may be already covered.

PAYMENT DEADLINES.
A final word is necessary about when payments are due. Regardless of which parent you represent, be sure to include a clear statement of how soon the reimbursement is due from the noncustodial parent. There is no "right" answer or choice here--just the importance of choosing a due date instead of leaving this unspecified and therefore unenforceable. A sample clause might provide that:

1. Mother shall provide father with a bill or statement for health care or treatment of a child within seven days of said care or treatment.

2. Father shall pay 60% of any uncovered portion directly to the health care provider (or to mother if she has already paid this amount) within seven days of his receipt of the bill or statement.

3. Father shall immediately submit the bill to his insurance carrier for payment.

4. The bill or statement provided to the father shall include a description of the child's treatment, prognosis or diagnosis, as well as whether the health care provider has applied directly to the medical insurance carrier for coverage or payment.

CONCLUSION.
These are the basics on child support determinations--cash amount, medical insurance and uncovered health care expenses. They must be remembered and covered in trial or through the negotiating process. By taking the time and effort to be specific in your counseling on each of these items, you will ensure that your child support clients are educated and protected in these fundamental aspects of support.

[rev. 12/10/07]

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The CO COUNSEL BULLETIN series of information papers for JAG officers in North Carolina is a product of the NC State Bar's Standing Committee on Legal Assistance for Military Personnel (LAMP). For comments or corrections, contact LAMP Committee member Mark E. Sullivan, 919 832 8507, or at Mark.Sullivan@ncfamilylaw.com.

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