There are two competing concerns when addressing child support payments when the parties involved collectively enjoy a high monthly income: the needs and lifestyle of the children, and whether a large calculation of child support would be a windfall to the custodial parent, offering no benefit at all to the children. In 1990, Kentucky revised its child support guidelines for original and modified orders, with an eye toward consistency and predictably in child support awards. The Guidelines serve as a rebuttable presumption of the child support award in any given case, based primarily on the combined gross incomes of the parents. The court is required to enter a child support order when the divorcing couple have minor children together. And it is unlikely to deviate from the Guidelines regardless of what the couple believe to be fair – and regardless of income.
For some parents, the Kentucky Child Support Guidelines provide the desired consistency and predictability. For parents with a combined monthly gross income in excess of $15,000, however, the Guidelines provide little guidance. In the latter case, the non-custodial parent has a significantly higher paying job during the parents’ marriage. The custodial parent has a job that pays less, but which permits highly valuable parenting and household management time. These parents are sometimes capable of devising their own fair parenting schedule, as well as child support calculation in excess of the Child Support Guidelines.
But with higher incomes, comes more difficulty in tracing assets, and more disputes about what should be considered income for purposes of child support and maintenance (“alimony”). For starters, higher-income parents often have more diverse and varied sources of income. Many parents believe they can tilt the scales away from a higher support payment, if they creatively categorize their sources of income as capital gains, bonuses, gifts, dividends, and similar non-recurring sources of money. The court will take these irregular sources of income and virtually all sources of income into consideration when calculating a child support award. It is critical that the custodial parent hire an attorney capable of tracing, categorizing, and analyzing all aspects of the non-custodial parent’s income streams in order to calculate a fair and equitable child support award.
The out-of-work-neurosurgeon. What happens when an educated, historically high-earning professional suddenly decides to get away from the rat race at age 50, and work part-time in a record store? Yes they still have record stores. Because it can be difficult to prove that a parent is deliberately taking less income than he or she is capable of earning, Kentucky courts routinely look to the parents’ potential income to determine the child support obligation. A number of factors go into the consideration of whether your spouse is deliberately underemployed: recent work history, occupational qualifications, educational background, and local employment opportunities. If you believe your spouse is deliberately earning less income than he or she could to avoid a higher child support award, your attorney must argue the facts supporting this belief.
Even when all income can be accounted for and assessed, and the court determines what potential income to attribute to the parties, the Child Support Guidelines stop considering income beyond a combined gross monthly income of $15,000. While the court may take into account a numerical calculation, the custodial parent’s attorney must be able to articulate specific evidence regarding the children’s needs and actual expenses, justifying the request for child support. Parents are wise to work out a child support schedule in excess of the Guidelines. Your attorney must encourage and cultivate a written child support agreement with your spouse. This will greatly reduce the time, expense, and aggravation of arguing over child support, and facilitate a smoother overall settlement.
Finally, it is not uncommon for non-custodial parents to claim some time down the road that the child support award should be decreased if his or her income has also decreased. The courts have recently made it easier for non-custodial parents to later apply for a decrease in child support payments. Non-custodial parents may do so upon showing a “material change” in circumstances that is “substantial and continuing.” If the non-custodial parent requests a reduction in child support payments after the first year, he or she must demonstrate that his or her income has fallen by 15%. If he or she requests a reduction within the first year, he or she must prove his or her income has fallen by 25%. Any modification may only be forward-looking. The court cannot alter past child support payments under any circumstances. Your attorney will need to skillfully identify what expenses and reductions in income qualify for purposes of a requested child support reduction.
Justin Whittaker is a family law attorney with Hemmer DeFrank Wessels. He helps individuals navigate the stresses of divorce in Northern Kentucky courts, with an emphasis on solving disputes as amicably and efficiently as possible. Justin strives to minimize the disruption of divorce on his clients’ lives, their children’s lives, and on the operation of their businesses. For a consultation please call or email Justin at 859-344-1188 / [email protected].