This article, written by a Rhode Island Family and Divorce law lawyer, David Slepkow, explains in detail the following Rhode Island Child support Issues: Establishing, modifying, terminating, enforcing, contempt, college, daycare, overtime as well as an explanation of the RI support guidelines!!
Establishing Child Support in Rhode Island:
How is Child Support determined in Rhode Island divorce, child custody and visitation causes of action? The “Rhode Island Family Court Child Support Formula and Guidelines” is utilized in the vast majority of child support cases in RI.
The RI guidelines establish the minimum amount a child support obligor is required to pay to the parent with physical custody of the minor child or children. A parent who has residential placement of minor children may seek a support order more than the minimum guidelines. The guidelines set the minimum amount a custodial mother or father will be entitled to for child support. The RI support minimum Guidelines were intended to be the floor rather then the ceiling for support in Providence Family Court. In reality, the minimums are utilized in the vast majority of RI divorce, visitation and child support cases.
The Providence Family Court is entitled to look at the assets of a party in determining child support.
The Family Court can also look at extraordinary expenses of either party and can look at the needs and expenses of the parties. The Court can look at any circumstances the judge believes appropriate. If a person is underemployed or refusing to work when capable of working then the court can determine the earning capacity of the party. Some Judges consistently go over the minimum guidelines.
The Rhode Island guidelines uses an income shares model in which the adjusted gross income of both parents are used to determine the correct amount of child support. Essentially, the guidelines look at the combined adjusted Gross income of both parties. Adjusted gross income means the gross income of a party with certain required deductions from gross income for medical insurance & dental insurance. Another required deduction is for additional minor dependants (children). There are also certain discretionary deductions that some judges may allow such as life insurance costs.
After determining the combined adjusted gross income of the parties, the Rhode Island Guidelines should be utilized to determine what the state of Rhode Island believes that two parents with that amount of adjusted gross income would pay for support if the parents were still residing together. After that number is determined daycare expenses are added onto that amount.
The non custodial parent pursuant to the minimum guidelines should be obligated to pay a percentage of that amount set forth above that is the same same percentage of that persons adjusted gross income to the total adjusted gross income of both parties.
For example: If Mom makes $1000 a month and dad makes $4000 a month and each has $200 dollars of medical insurance payments then the adjusted gross income of mom is $800 and the adjusted gross income of dad is 3800. The combined adjusted gross income of both is $4600. Dad makes $82.6 percent of the combined adjusted gross income of the parties and is required to pay 82.6 percent of the minimum guideline amount guideline amount plus the daycare expenses.
The next step is to get a copy of the most recent version of the Rhode Island Child Support Guidelines . This can be obtained at the Rhode Island Family Court. It is perplexing that, I cannot easily find the most recent guidelines on google . You need to look at the “Rhode Island Monthly Basic support Obligations” (effective November 1, 2007) (These Guidelines recently replaced the 2002 Guidelines) Please note that one of the most significant changes to the new 2007 guidelines is the “self support reserve for payors with very limited income.
Assuming that the parties have two children the guidelines indicate that the correct support amount is $956. assuming there is no daycare* in this hypothetical then the father would be obligated to pay 82.6 percent or $956 per month which would be $789.65 per month or $183 per week. (Please note that these figures use the 2004 guidelines not the new 2007 child support guidelines)
*(if there is daycare then add the work related child care costs minus the federal tax credit. Please note that the state of Rhode Island uses a rule of thumb of approximately 75 percent to 80 percent of the actual daycare expense)
The Guidelines in theory and in most cases in actuality are the minimum amount a person is required to pay. The judge has discretion to go over the minimum Rhode Island Guidelines if there is justification under the circumstances.
Can a judge go over the minimum child support guidelines in Rhode Island?
Some judges in Rhode island consistently go over the guidelines. The types of circumstances that may justify a judge issuing a child support order above the Rhode Island guidelines are:
a) Substantial assets
b) standard of living and expenses that far exceed reported gross income
c) extraordinary necessary expenses and needs related for the child
If the parties agree to child support below the Rhode Island child Support Guidelines, in some limited circumstances, it may be allowed. These circumstances could include, visitation exceeding the norm, extraordinary payments of the child expenses or even sometimes just based on the parties agreement.
Private School Education:
In Rhode Island (RI) Divorce and Child support cases, Can I get the father or mother of my child to be ordered to pay for private school education?
No, unless there is a contractual obligation, a stipulated consent order or there is an ongoing divorce.
Most judges take the position that there are suitable public schools for children to attend. However, If there is something in writing such as a property settlement agreement obligating one parent to pay for the private school education of the child, then the parent may be obligated to pay for the private school education.
Also, the parent could be ordered to pay for private school education in a divorce on a temporary basis, especially when it is in the middle of a school year and it would be disruptive for the child to transfer to a public school. Parents can certainly negotiate payment of private school education and the judge of The Family Court will usually approve the settlement in a court Order. That stipulated consent order could be enforced in a Family Court contempt proceeding.
Can I get the father or mother of my child to be ordered to pay for college?
No, Unless there is a written contractual agreement obligating payment of college expenses. Rhode Island child support terminates when a child turns 18 and graduates high school but not longer then the child attaining the age of 19. (Unless the child is severely disabled and then it goes unil the child turns 21)
The Court loses jurisdiction over the child when the child attains the age as set forth above. The Court cannot order payment of college but a Court may enforce a written property settlement agreement between the parties obligating payment of college.
What if my child’s parent works overtime? Will overtime be included in child support?
There is no standard law or rule in Rhode Island regarding whether or not the non-possessory parent’s overtime will be used to calculate child support. One Judge in Rhode Island consistently rules that overtime compensation cannot be used to calculate child support.
Other Judges in Rhode Island have different opinions regarding overtime. The Family Court is a court of equity and fairness. Judges in Rhode Island will typically look at whether or not a person consistently works overtime over a substantial period of time. Judges may also look at whether or not overtime is consistently offered to a spouse. If overtime is infrequent or not typically offered Judges may be hesitant to calculate overtime as a factor of child support. In that case, many attorneys argue that a person’s income should be calculated using their W2 or gross income for the entire calendar year. By calculating gross income over an entire calendar year even infrequent overtime becomes an element of child support.
Judges may also look at other factors such as the needs and expenses of both parties and any extraordinary expenses for the child. At least one Judge has suggested that the possessory parent get a percentage of the overtime that is worked by the non-possessory parent. Other Judges in Rhode Island (RI) believe that overtime should always be a factor in child support. Often the issue of overtime is negotiated by the lawyers prior to any formal ruling by the Judge.
Daycare and Child Support:
Who is going to pay for my child’s daycare? The Rhode Island minimum guidelines take into account both the importance and expense of daycare. The guidelines and worksheet are used to determine the proper amount of child support to be paid by the non-possessory parent. The bottom line is that a party will be ordered to pay approximately the same percentage of the daycare that the party makes in relation to that party’s percentage of the combined gross income of both parties.
For example: If the husband makes $100,000.00 and the wife makes $50,000.00 the combined gross income for the parties is $150,000.00. Therefore, the husband makes 66 percent of the income and will be ordered to pay 66 percent of the daycare in addition to child support. (There may be an adjustment to take into account the federal tax credit.) This amount is added onto the minimum Guidelines amount.
Modifying Rhode Island Support:
How is Child support modified in Rhode Island divorce and family law cases?Rhode Island Child Support is not automatically modified when there is a change in circumstances. The parent must file a motion to modify. When a motion for modification is filed a court date will be set by the clerk of the Rhode Island Family Court. In order to modify child support there must be a substantial change in circumstances. Under RI Law, a new child support amount does not run retroactive to when the circumstances actually changed! The new order should run retroactive to the date of the filing of the motion.
Therefore, you should not wait too long after circumstances change until you file for a modification of Rhode Island Child Support. There must be at least a ten percent change for a modification to occur unless the party agrees otherwise. You should contact a Rhode Island Divorce or Family law lawyer / attorney to see whether you are eligible for a modification.
What may constitute a substantial change in Circumstances pursuant to Rhode Island family law?
3. new dependant child
4. decrease in income of either party
5. increase in income of either party
6. increase in cost of daycare
7. increase in cost of medical insurance
8. a change in the financial circumstances of the either parent such as inheritance, acquiring assets
9. either party obtaining social security benefits (SSI or SSDI) or afdc benefits
10. new RI Child Support Guidelines promulgated.
11. loss of overtime income
12 a substantial bonus of either party
13 any other change in circumstances that is recognized by the Court.
Child support contempt in Rhode Island (RI):
If a person violates a Rhode Island Family Court order by not paying child support, the parent with physical custody may file a motion to hold that person in contempt for failure to pay. A person accused of not paying has a right to a hearing. The obligor parent has the right to proper notice under the Rhode Island Family Court Rules.
If the person owed child support (the parent with physical placement / custody) is on AFDC Benefits (welfare) than payment may be owed to the state of Rhode Island. In that event, the motion may be initiated by the State of Rhode Island, Child Support Enforcement rather than the father or mother with physical custody of the minor child.
A contempt proceeding could be part of a Rhode Island divorce, child custody, Complaint for separate Maintenance, dcyf petition, child visitation, paternity or other type of Family Court legal action. If there is a potential for incarceration and a person cannot afford a Rhode Island Family Law lawyer / attorney then the Family Court must insure that the person has an attorney representing him or her. The Judge usually has a list of Court Appointed attorneys who are paid for by the state. Otherwise, the Court will appoint one of the lawyers from Rhode Island Legal Services to represent the person.
There is often an opportunity to settle the matter prior to any hearing in which a judge may find a person in willful contempt. A settlement typically may include any one of the following or a combination of the following or something different: the obligor agreeing to remain current, paying a lump sum, a payment plan, staying current in addition to an arrearage order, etc.xIn some situations, the parent with physical custody or Child Support enforcement is unwilling to settle the matter and insists on a hearing.
If a person is found in technical contempt after a hearing, it means that the person has not complied with the child support order. However, the Court believes that the person had a legitimate reason or excuse for failure to pay, such as loss of job (being fired, laid off), decrease in income, disability, injured at work, unable to work, medical problems, or a myriad of other excuses or explanations. The judge also may not accept any of the above stated excuses as justification for failure to pay.
A person found to be in technical contempt will not be sentenced to the Adult Correctional Institution (aci) (jail)! However, the person may be ordered to find employment, raise a lump sum, stay current and / or make payments on the arrearage, pay attorneys fees, make certain lump sum payments, obtain a second job etc.
Most Judges have little patience for people who do not support their children. If the person has an excuse for nonpayment it better be a good one or they may find themselves in Jail. The amount of arrears and the person’s history for compliance or noncompliance is often crucial in a judge’s determination! If a person has a long history of nonpayment then that person has a much higher likelihood to be held in willful contempt.
The more a person owes the more likelihood that the person will be held in willful contempt. At a hearing the judge will look at all relevant supporting documentation that has been offered into evidence. The judge will almost always ask what the person can pay at that moment or whether they are able to immediately borrow money from friends or family. The Usual Dialogue is – “how much can you come up with to stay out of Jail and how quickly can you pay?” The RI Family Court judge may also be interested in whether a person has assets that he or she can sell.
If a person’s circumstances change then they need to file a motion to modify or suspend their child support rather then not make the payments! Child support does not automatically modify upon circumstances changing. If a modification is granted then the modification will be retroactive to the date of filing of the motion to modify not the date the circumstances actually changed. This does not mean that a person can unilaterally change their child support when they file a motion. It means that the child support will run retroactive after the Family Court issues an order modifying the child support. Therefore, if a person loses their job, becomes disabled, their hours are reduced or their pay decreases they must immediately file a motion to modify.
Child support can only be changed or modified if a motion is filed and an order enters. In many instances the judge’s response to a person’s plea to not hold them in contempt because they lost their job or their income decreased will be something like: “you should have filed a motion to modify or suspend child support when your circumstances changed rather than not pay.”
A finding of willful contempt means that the judge believes that a person is thumbing their nose at the Court or has no reasonable justification for nonpayment. It could result from the judge not believing that the stated excuse for nonpayment is a justifiable excuse.
A finding of willful contempt could also mean the following: 1) the person has the ability to pay and has not made payment 2) the person has not made proper efforts to find suitable employment 3) the person is able to work yet either isn’t working, is underemployed or not making proper efforts to find employment.
The judge may believe that the contempt is willful because the person is lying, exaggerating his excuse or that the person is not acting in good faith.XIf a person is found in willful contempt for not paying Rhode Island child support, the person could be sentenced to the aci from day to day. Contempt sanctions are technically not criminal proceedings! However, since the sanctions could lead to jail time, they are quasi criminal proceedings. Contempt proceedings are not technically criminal because they are intended to compel compliance with child support orders rather then punish for nonpayment!
If a person is sentenced to the aci from day to day, then the judge of the Rhode Island Family court will usually state that upon payment of certain amount the person will be released from jail. In child support contempt proceedings there is always a ticket out of jail by making a certain payment. A person could be held in willful contempt and not be sentenced to the aci.
Terminating Rhode Island Child Support:
How do I terminate my obligation and stop wage garnishment in Rhode Island?
In Rhode Island (RI) child support does not automatically terminate when a child reaches 18 years old! Termination of a child support order is not automatic in Rhode Island! An order / obligation will only terminate if a motion to terminate is granted by a Judge of The Rhode Island Family Court. Unlike a motion to modify child support, a DR6 financial statement is not necessary unless there is an additional child in which an obligation will continue. If there is an additional child under 18 then a motion to terminate is really in essence a motion for modification of support.
Pursuant to RI law, child support is eligible to be terminated upon a child attaining the age of 18 and graduating high school but not longer then the child turning 19 years old. If the child is 18 years old and still in high school than child support may continue until the child graduates high school but not longer then the child attaining the age of 19. If a child is determined to be seriously disabled then child support may continue until the child attains the age of 21. If the Judge finds good cause the child support might continue for three months after graduation from high school.
A person should file a motion to terminate approximately 30-40 days prior to the child’s graduation from high school. If the child did not finish high school then a person should file their motion 30-40 days prior to the child’s 18th birthday. It will take a approximately 30-40 days until the clerk can schedule a hearing for the termination motion.
After the motion to terminate, the attorney must submit proper documentation and orders to the court, the obligors employer (to stop wage garnishment) and to the reciprocal clerk (to amend the computer records) If the computer records are not updated then the computer will continue to show an arrearage which may cause problems including automatic intercept of your tax refund, inability to obtain a passport among other problems.
What County in the Rhode Island Court system will the child support case be heard?
Al the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures. Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol, North Smithfield, woonsocket and other towns and cities. Kent County includes Warwick & North kingston, East Greenwich as well as other towns. Newport County includes Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield, narragansett etc.