Child Support In Divorcekim2020-11-27T18:24:01+00:00
If minor children are involved in the divorce, an Order of Child Support must be entered. The Court may enter a Temporary Order, to be in effect while the divorce is pending, and must enter a Final Order when the divorce is concluded.
The Court will not unilaterally enter a Temporary Order; one party will need to bring a Motion for Temporary Orders and set a hearing on that Motion, in order to bring the matter to the Court’s attention. This can be done at the same time that the initial divorce paperwork is served on the other party, or anytime before the divorce is finalized. In general, if you believe the other party is obligated to pay child support, and have concerns that the other party will not pay child support while the divorce is pending, it is a good idea to bring a Motion for Temporary Orders at the same time the divorce is initiated.
The forms needed to establish a Temporary Order of Child Support in a divorce can be found here.
A hearing on a Motion for a Temporary Orders is based on written documents submitted to the Court in advance of the hearing. If you are the party making the Motion for Temporary Orders, you need to submit your materials to the Court, and serve them on the other party, at least 5 business days before the hearing. If you are the party responding to the Motion for Temporary Orders, you need to submit your materials to the Court and to the other party at least one day before the hearing. Be aware of local court rules that require you to submit your materials by a certain time on the day before the hearing. There are specific rules regarding service of documents. For example, see here.
A party cannot serve the documents; service must be done by a third party. In general, make sure you get your materials to the Court so that the Judge will have time to review them before the hearing. You cannot wait until the day of the hearing to present your evidence to the Court, or the Court will not consider it. The documents to be submitted should include:
Financial Source Documents, submitted under seal using this cover sheet. These should include the last few months of paystubs for yourself (and, if you have access to them, the opposing party); the last 2 years of tax returns and W-2’s.
Notice of Hearing. Contact the Clerk of your county’s Superior Court to determine when the hearing should be set, and whether a special form is required.
You must also provide proof that the documents have been served on the other party. The type of service (i.e., personal service or service by mail) varies depending on whether the other party has formally appeared in the action (e.g., by filing a Response, an Acceptance of Service, a Joinder, or an attorney has filed a Notice of Appearance).
At the hearing, the party making the Motion may present brief argument, usually about 5 minutes in length. The responding party will also be allowed to make brief argument. Oral argument is not an occasion to present new evidence to the Court. Argument should be limited to summarizing the evidence that has already been submitted in your written paperwork. At the conclusion of argument, the Court will make its ruling. You should have your proposed Order completed and in hand, so that if the Judge rules in your favor your Order can simply be handed up for the Judge’s signature.
When the divorce is finalized, an Order of Child Support must be entered if there are minor children involved. Even if you and your ex-spouse have agreed that there will be no child support transfer payment, an Order of Child Support still must be completed, as that document will set forth the reasons why there is no child support payment. A valid reason may be that each parent has the children for 50% of the time, and their incomes are relatively equal. But child support is for the children, not the parents, so child support is not to be used as a bargaining chip in the divorce. Therefore, it is generally improper for a parent to agree to forego child support in exchange for, say, a larger percentage of the community property. As a result, even if the parents are in agreement regarding child support, the Judge will often look closely at the Order of Child Support to ensure that child support is being properly paid, or that a valid reason exists for the absence of a child support transfer payment.
If the parties are in agreement, the procedure for entering final orders (which include the Decree of Dissolution, Findings of Fact and Conclusions of Law, Final Order of Child Support, and Final Parenting Plan) varies by county. In some counties, both parties must appear in court on the non-contested dissolution calendar, and the Judge will sign the final documents at that time. In other counties, the documents may be submitted for the Judge’s signature without the need for an in-person court appearance. In general, however, before the Judge will sign agreed documents, the documents must bear each party’s signature.
If one party simply refuses to respond to the paperwork that you have filed, you will be able to have your final paperwork entered without the other party’s consent, but you will need to follow certain procedures to show that all of the documents were served on the other party, and that a sufficient amount of time has elapsed for the other party to respond.