Child Support

Answers to Frequently Asked Questions

WARNING: As of June 26, 2006, the Tennessee Department of Human Services (DHS) has issued a new set of Child Support Guidelines. Some of these most recent changes are materially different from the January 18, 2005 changes when the Tennessee Child Support Guidelines dramatically changed to the “Income Shares Model,” taking into account the income of both parents. The new provisions are very detailed and complex. The answers to the FAQ’s below are general in scope. Some exceptions that may apply to a given situation are not included in the answers. To learn the answer to a specific question applicable to your particular situation, consult with an attorney.

Further, within the legal system, interpretations of the Guidelines will be determined by the Tennessee Court of Appeals and Supreme Court of Tennessee. But, because Tennessee’s “Income Shares Model” Guidelines are so new, some important interpretations may not appear in law for several years. Crone & Mason is a law firm in Tennessee with offices in Nashville and Memphis practicing family law and divorce.

1. How is child support calculated?

Tennessee law authorizes the Department of Human Services to create and issue the "Child Support Guidelines." The parent who pays child support is usually called the "Alternative Residential Parent," and the parent who receives child support is usually called the "Primary Residential Parent." When the "Guidelines" are discussed, this usually refers to the Rules as issued by the DHS. These Rules have the authority of law and most, if not all, states have similar provisions in their law. "The Charts" refers to the charts published with the Guidelines which cross reference both parent's gross income with both parent's actual support obligation. The “Income Shares Model” is a phrase describing that under our new child support law (effective January 2005), both parents’ income are considered in determining child support. New Charts are generally issued annually. Current Rules, Charts, and important links can be found on the MemphisDivorce.com Child Support page.

2. How do I calculate the Basic Child Support Obligation?

Basic expenses include an average amount to cover child-rearing expenses which are comprised of housing, food, and transportation. The share of total expenditures devoted to clothing and entertainment is also included in the Basic Child Support Obligation (BCSO). The share of total expenditures devoted to clothing and entertainment is also included in the BCSO, but is relatively small compared to the other three items. Basic educational expenses associated with the academic curriculum for a public school education (such as fees, books, and local field trips) are also included in the BCSO.

The BCSO does not include the child’s health insurance premium, work-related childcare costs, the child’s uninsured medical expenses, special expenses, or extraordinary educational expenses because of the highly variable nature of these expenses among different families.

The first step to calculate the BCSO is to obtain the gross income of each parent. Gross income includes all income form any source (before taxes and other deductions), whether earned or unearned, and includes wages, salaries, commission, fees, tips, income from self-employment, fringe benefits, bonuses, severance pay, pensions or retirement plans (including but not limited to Social Security), Veteran’s Administration, Railroad Retirement Board, Keoughs, Individual Retirement Accounts, interest income, dividend income, trust income, annuities, capital gains, disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the Social Security Act (whether paid to the parent or to the child based on the parent’s account), workers compensation (whether temporary or permanent), unemployment insurance benefits, judgments to recover for personal injuries and awards from other civil actions, gifts that consist of cash or other liquid instruments that can be converted to cash, prizes, lottery winnings, and alimony or maintenance received from other persons other than parties to the proceeding before the tribunal.

The second step is to calculate the Adjusted Gross Income (AGI) of each parent by subtracting “credits” from the gross income of each parent. Credits allow a parent to reduce the amount of gross income that is used in order to calculate the Basic Child Support Obligation. These credits are:

a.   self-employment tax,

b.   a child being supported in the parent’s home

c.   a child being supported by the parent under a child support case

d.   a child who does not live in the parent’s home and is receiving support from the other parent, but not pursuant to a court order.

Credits are available for both children under pre-existing and subsequent orders. For credit purposes, pre-existing orders are directly deducted from the gross income of a parent. A parent is given the full amount of credit. No credit is given from arrearage payments.

To receive credit for children that are under a subsequent support order, a parent must prove that they are actually providing support for those children

To receive credit for children that are not under a support order, the parent claiming the credit must prove that they have a legal obligation to support the child and are actually providing support for the child.

Documented proof of support includes: physical evidence of monetary payments to the child’s caretaker (such as cancelled checks or money orders), evidence of payment of child support under another child support order (such as a payment history from a tribunal clerk or child support office or from the Department’s internet child support payment history), evidence of “in kind” remuneration (such as food, clothing, diapers or formula which has been reduced to a monetary amount approved by the child in a qualified other child’s case or affirmed by the receiving parent in the other case).

The available credit against gross income for either parent’s qualified “not-in-home” children is the actual documented monetary support of the qualified other children, averaged to a monthly amount of support paid over the most recent twelve (12) months period to a maximum of seventy-five (75%) percent of a theoretical support order calculated according to these Guidelines, using the Credit Worksheet, the parent’s gross income.

None of these credits is available for step-children.

The third step, after calculating each parent’s monthly Adjusted Gross Income by deducting credits, is to take the amount of AGI each parent has, add it together for a total amount, and cross-reference it with the Child Support Schedule. The Child Support Schedule gives the monthly total obligation or Basic Child Support Obligation both parents must provide.

The fourth step is to take the monthly Basic Child Support Obligation and divide it by each parent’s Adjusted Gross Income. Each parent’s share, called the Percentage of Income (PI), is determined by pro-rating the Basic Child Support Obligation between parents.

3. What is the "Parenting Time Adjustment?"

The Parenting Time Adjustment is an adjustment to the Basic Child Support Obligation based upon parenting time. In equal parenting situations, the adjustment is based upon each parent exercising one hundred eighty-two and one-half (182.5) days of parenting time.

Except as applied to equal parenting situations, the adjustment is based upon the Alternative Residential Parent’s number of days of parenting time with the children. Only one parent can take credit for parenting time in one twenty-four (24) hour period.

A “day” of parenting time occurs when the child spends more than twelve (12) days consecutive hours in a twenty-four (24) hour period under the care, control, or direct supervision of one parent or caretaker. The twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day. Accordingly, a day of parenting time may encompass either an overnight period or daytime period, or combination thereof.

Except in extraordinary circumstances, partial days of parenting time that are not consistent with this definition shall be considered a “day” under these Guidelines. An example would include a parenting situation where the Alternative Residential Parent is scheduled to pick up the child after school three (3) or more days a week and keep the child until eight (8) o’clock p.m. The three (3) days period of routinely incurred parenting time of shorter duration may be cumulated as a single day for parenting time purposes.

If the Alternative Residential Parent (ARP) spends ninety-two (92) or more days per calendar year with a child, an assumption is made that the ARP is making greater expenditures on the child during his parenting time for costs such as food and/ or is making greater expenditures for child-rearing expenses for items that are duplicated between the two (2) households. A reduction to the ARP’s child support obligation may be made to account for these transferred and duplicated expenses. The amount of the additional expense is determined by using a mathematical formula that changes according to the number of days the ARP spends with the child and the amount of the Basic Child Support Obligation. This mathematical formula is called a “variable multiplier.”

4. What is "Split Parenting?"

Split parenting can only occur in a child support case if there are two (2) or more children of the same parents, where one (1) parent is the Primary Residential Parent for at least one (1) child, and the other parent is the Primary Residential Parent for another child. Split parenting situations are calculated differently under the new Child Support Guidelines so that both parents are given credit for having more than fifty percent (50%) of the time with at least one child.

5. How are medical insurance, uninsured medical expenses, and work-related child care costs treated?

Under the new Child Support Guidelines, the cost of medical care insurance premiums (which can include medical and dental) that provide health care for the children and the costs of work-related child care are included in the calculation for the support order. The parents must divide these expenses according to each parent's Percentage of Income, and every court order under the new Guidelines must address these expenses.

As for uninsured medical expenses, they are added to the Basic Child Support Obligation These expenses must be routinely incurred so that a specific monthly amount can be reasonably established and added to the Basic Child Support Obligation. Parents must divide these expenses, according to their Percentage of Income, regardless of whether they are routinely incurred and added to the Basic Child Support Obligation. Uninsured medical expenses may include, but are not limited to, deductibles, co-pays, dental, orthodontic, counseling, psychiatric, vision, hearing and other medical needs not covered by insurance.

As for work-related childcare, the Guidelines read, in part, as follows:

Childcare expenses necessary for the parent's employment, education or vocational training that are determined by the tribunal to be appropriate, and that are appropriate to the parents financial abilities and to the lifestyle of the child if the parents and the child were living together, shall be averaged for a monthly amount and entered in the worksheet in the column of the parent initially paying the expense.

6. How do educational expenses, special expenses, and other "add-ons" work within the Guidelines?

After calculating the Basic Child Support Obligation and adding health insurance cost and work-related child support expenses, educational expenses for private or special schooling for children can be considered as a deviation from the presumed amount of support. Other "special expenses" such as music lessons, summer camps, travel, and other activities that may contribute to the child's cultural, social, artistic, or athletic development may also be considered by the court as deviations from the presumptive child support order and added to the child support amount. These expenses include activities intended to enhance the athletic, social or cultural development of a child.

These some of these "special" expenses are not mandated under the Child Support Guidelines and must exceed seven percent (7%) of the Basic Child Support Obligation to create a deviation in order to be added to the Basic Child Support Obligation. If a deviation is granted, the court must include in the court order the reasons for the deviation and the amount the order would have been without the deviation.

7. Can the Alternative Residential Parent obtain a modification in child support just because the obligor qualifies for a credit under the new Guidelines?

The Guidelines say no. You still must have a “significant variance.” The Tennessee Court of Appeals explained some of the history behind modification law and the succession of changes in this area of child support rules:

The new Guidelines defined the term “significant variance” as “(a)t least fifteen percent (15%) change in the gross income of the ARP (alternate residential parent)….,”   a change in the number of children for whom the ARP was responsible and supporting; a supported child become disabled; or the parties’ agreement to modify support and at least a 15% change between the current support order and the proposed order, using the income shares worksheet.  Subsection (7) of this regulatory provision stated that, beginning January 1, 2006, the above definition of “significant variance” would be eliminated.  After that, a parent seeking modification would merely have to show a 15% difference between the current support order and the proposed child support order using the income shares worksheet.

On October 14, 2005, the Tennessee Department of Human Services (“DHS”) promulgated an emergency rule, repealing subsection (7) of Rule 1240-2-4-.05, which would have changed the definition of “significant variance” to require only a showing of a 15% difference between the current and the proposed child support orders.  DHS also published a “Statement of Necessity” for this emergency rule.  In the Statement of Necessity, DHS noted concerns that the changes would result in significant increases or decreases in existing child support obligations based solely on the new methodology for calculating the support.  DHS was also concerned that Tennessee courts would be “subject to an unusually high volume of requests for modification by parents seeking to improve their respective financial positions” by receiving a reduced child support obligation under the new income shares guidelines.  To address these concerns, DHS decided to eliminate the new subsection (7) definition of “significant variance” and maintain the existing definition of the term, in order to “limit the availability of modifications….”

Hill v. Hill, No. M2006-0273-COA-R3-CV (Tenn. Ct. App., Dec. 17, 2007) (Citations omitted).

Whether or not a parent may modify child support remains a confusing topic for judges and lawyers for many reasons.  Application of the new law to a particular situation is not easily predictable.  Definitely see a lawyer to inquire about your situation.

8. What if the child support award does not cover expenses?

Courts cannot create economic resources where they do not exist. However, the Guidelines are minimum requirements. Child support can be set above the Guidelines' minimum requirements when warranted. One such instance could be a hardship deviation.

A hardship deviation could be found by a court if a modification under the new Child Support Guidelines, whether upwards or downwards, creates a large change in the amount of support, then the court can deviate in the amount of the modification to ease the impact of the modification on the obligee parent who would be getting significantly less support or the obligor parent who would be paying significantly more support. The court can only do this in the first modification after the transition from the old Child Support Guidelines to the new Child Support Guidelines. In the next application to the court for modification, the court cannot allow a hardship deviation, and the parents will feel the full effect of the new Child Support Guidelines.

9. Can a court order an employer to deduct child support from the supporting parent's salary and pay it directly to the receiving parent?

Yes. This is called a wage assignment. In Tennessee, the court should order it unless there is a good reason not to. This works extremely well. However, if the supporting parent is self-employed, so that much of his or her income is in cash tips or payments, or is on a straight commission without a draw, this process might not be helpful. Discuss the situation with a lawyer experienced in these situations.

10. May a supporting parent be ordered to pay child support through the state's central collection agency?

Definitely. Payment to the state's central collection agency simplifies the process for the custodial parent, who need not enter into confrontations with the supporting parent or use the children as support collection agents. The agency maintains the record of payment, and when an arrearage occurs, the proof of the amount of that arrearage is much easier to obtain.

11. My ex-spouse is delinquent in child support payments. How can I enforce the court order?

You can bring a petition for contempt of court and ask for a wage assignment. If the supporting parent is deliberately delinquent, or has the money but just refuses to pay, the court might put the supporting parent in jail for punishment or encouragement. Tennessee also may revoke state issued licenses (i.e. driver's, hunting, or medical) or require the delinquent parent to pick up trash on the roads.

12. But my "ex" moved out of state. Can I still enforce the judgment?

Absolutely. Over the last few years, new laws have been passed that really help. Armed with your state's court orders, you can go to the other state's court (often handled through the local district attorney or your local juvenile court) to enforce the wage assignment. Call your attorney, the local district attorney, or your local juvenile court for advice.

13. I am worried that my former spouse will file for bankruptcy. Can my former spouse avoid paying child support?

No. If your former spouse is not making child support payments after filing for bankruptcy, check with your lawyer immediately for advice.

14. Do I have to report my child support payments as taxable income on my federal income tax return?

No.

15. Does that mean my "ex" cannot deduct the child support he pays?

Correct.

16. Can this change if we both agree?

No, but you can agree to allow the Alternative Residential Parent to have the child dependency deduction as long as the Primary Residential Parent completes and signs IRS form 8332 to be filed with the Alternative Residential Parent's tax return.

17. In Tennessee, when does the obligation to pay child support end?

The obligation to pay child support ends when the child reaches age 18 or graduates from high school with his or her regularly scheduled class, whichever comes second. However, child support could end earlier if the child becomes emancipated (gets married or quits school and gets a job).

18. May child support continue after a child goes to college?

Yes, but only if the parties agree, or if the child suffers from a severe medical condition or is handicapped. Otherwise, the court cannot award support past the age of majority.

19. What if the Primary Residential Parent is very wealthy or remarries someone wealthy?

In Tennessee, relative wealth of the parents does matter. The new Child Support Guidelines apply to both the Primary Residential Parent and the Alternative Residential Parent. If one parent has a greater ability to pay, then that parent should pay a greater amount of the child support obligation. Of course, the wealth of a non-parent or step-parent is not considered in setting child support awards.

20. What happens when the primary residential parent or alternative residential parent's income cannot be ascertained?

The Child Support Guidelines read, in part, as follows:

When establishing an initial order and the obligor fails to produce evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years), and the court has no other reliable evidence of the obligor's income or income potential, gross income for the current and prior years should be determined by imputing annual income of $36,369.00 for male parents and $26,989.00 for female parents.

When cases with established orders are reviewed for modification and a parent fails to produce reliable evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support), and the court has no other reliable evidence of that parent's income or income potential, then the court shall enter an order to increase the child support obligation of the parent failing or refusing to produce evidence of income by an increment not to exceed ten percent (10%) per year of that parent's share of the basic child support obligation for each year since the support order was entered or last modified.

21. What if the obligor is self-employed?

Income can be different than that amount listed on the obligor's federal income tax return. The Child Support Guidelines read, in part, as follows:

Income from self-employment includes income from … business operations … and rental properties, etc., less ordinary and reasonable expenses necessary to produce such income....

Excessive promotional, excessive travel, excessive car expenses, or excessive personal expenses, or depreciation on equipment, the cost of operation of home offices, etc, shall not be considered reasonable expenses.

Amounts allowed by the Internal Revenue Service for accelerated depreciation or investment tax credits shall not be considered reasonable expenses.

Fringe benefits for inclusion as income or "in kind" remuneration received by a parent in the course of employment, or operation of a trade or business, shall be counted as income if they reduce personal living expenses.

Such fringe benefits might include, but are not limited to, company car, housing, or room and board.

Variable income such as commissions, bonuses, overtime pay, dividends, etc. shall be averaged over a reasonable period of time consistent with the circumstances of the case and added to a parent's fixed salary or wages to determine gross income.

22. May private school tuition, music lessons, special travel, and athletic training costs result in an amount greater than that in the Basic Child Support Obligation?

Evidence of the cost of the private or special needs education, the need of the child to have the education, and the prior educational decisions of the parents are factors that can be used to justify an upward deviation the child support obligation. As for special expenses such as music lessons and special travel (any expenses that may contribute to the child's cultural, social, artistic or athletic development) the court may use proof of the evidence of the cost of the special expense and reasons justifying the expense to justify an upward deviation and increase the child support obligation. The educational and special expenses must exceed seven percent (7%) of the basic child support obligation. If a deviation for educational and special expenses is allowed by the court, then the court must include in the order the reasons for the deviation and the amount the order would have been without the deviation.

The Supreme Court of Tennessee has ruled that a court can find that private school tuition can be an extraordinary education expense, justifying a greater child support obligation than the Guidelines minimum. The court will consider all relevant facts in consideration of an application for additional support for private school tuition.

23. When a supporting parent is unemployed, does the court have any power to require him or her to work and pay child support?

Yes. When the person owing a duty of support is unemployed, the court may order him or her to seek employment and report periodically with a diary of efforts to find work and to participate in government job search, training, or work programs. Every able-bodied person has an earning potential. Failure to pay child support can result in a petition for contempt, seeking incarceration for failure to pay court-ordered support. Depending on the situation, however, the unemployed obligor may seek a temporary reduction in support while seeking employment.

24. Can a parent get out of paying past-due child support?

No. The Tennessee child support statute mandates that child support immediately becomes a judgment when it is due and not paid. The law does not allow a reduction in past child support that has not been paid. Ask your lawyer, however, about application of provisions which may apply if a parent has completely interfered with visitation.

In cases where an obligor's income has been imputed in a past order, the court can reduce the amount of support going forward.  Courts will only allow a reduction in imputed income cases if reliable evidence is provided to determine the appropriate amount of support.

If the past-due support is significant, see an attorney sooner rather than later because there are effective collection and enforcement tools in Tennessee law which can become unavailable over time in certain circumstances.

25. I have heard of a "cap" on child support as a certain percentage of income. Is that true?

Yes. this applies when the presumptive child support order exceeds the amount found by multiplying a net income of ten thousand dollars ($10,000.00) by the percentages set out below, pursuant to T.C.A. 36-5-101(e)(1)(B). The Primary Residential Parent seeking support in excess of the "capped" amount must prove by a preponderance of evidence that more than "capped" amount is reasonably necessary to provide for the needs of a child. The court can order the excess be paid into an educational trust. The Guidelines allow the following "caps" or percentages:

(i) One child = $2,100.00.

(ii) Two children = $3,200.00.

(iii) Three children = $4,100.00.

(iv) Four children = $4,600.00.

(v) Five or more children = $5,000.00.

For high-income obligors, the Court of Appeals have approved several rulings awarding child support in excess of the “caps” for education, extracurricular activities, and educational travel.

26. What is the law concerning retroactive awards of child support?

In paternity cases and voluntary acknowledgment of cases, retroactive support may be ordered from birth.  The court may also award child support retroactively to the date of separation of a married couple, abandonment of a child, or physical custody of a parent or non-parent caretaker.  Retroactive support is calculated using the average income of the parties over the previous two years. Other provisions may apply if a parent has intentionally hidden the child to prevent visitation.

Written by divorce and family lawyers with the Crone & Mason, plc Family Law Practice Group, our attorneys provide details of Tennessee divorce and other family law issues including answers to many frequently asked questions. Offices serving Nashville and Memphis Tennessee and surrounding area. Copyright, Crone & Mason, plc, 2007.

27. If the supporting parent voluntarily takes a cut in income or quits a job, can he or she get a reduction in child support?

It depends. The judge will have a lot of discretion in this situation. Technically, if a supporting parent is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by the obligor’s educational level and/or previous work experience. In this situation though, the individual circumstances matter. For example, if a doctor leaves a practice group to start his own practice, the temporary reduction in income will not likely justify a reduction in child support. If, however, a manager of a retail store takes a new job with a cut in pay but also with legitimately increased advancement opportunities, the court might allow a decrease. On the other hand, leaving a job just to reduce hours or to intentionally make less money, motivated by a desire to pay less child support, will not be looked upon favorably by the judge and can result in a child support obligation based on the obligor's potential income.

There are many appellate decisions discussing willful and voluntary unemployment and underemployment.  If this situation concerns you, either as obligor or obligee, consult a lawyer immediately.

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