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In 1989, all states quickly adopted one of
two formulas, or some derivation thereof, to
calculated a presumptive child support amount for
every case. Needless to say, these formulas do not
take your case or circumstance into account. In
fact, they take almost no one’s into account,
which is why their results are out of sync with
reality. It is also why they can be, and are,
successfully challenged.
[I am not a lawyer and this is not legal
advice. Use a lawyer and economics expert for your
case.]
An important tenet of our legal system is that
no statutory presumption may be arbitrary. That is,
the courts must judge each case on its own merits
and no law can prevent that. [Morgan v.
Georgia, 279 U. S. 1 at 6 (1929); Leary v. United
States, 395 U. S. 6 at 32-37 (1969). Thanks to John
Remington Graham for the citations.]
If any child support guideline fails to take
your particular situation into account, the court
must.
Percentage of Obligor (also called the Wisconsin
Model) is the most arbitrary and irrational. It was
adopted by 13 states such as New York, Wisconsin,
Mississippi, and Illinois. It comes from an early
1980s study on poverty when the University of
Wisconsin’s Institute for Research on Poverty
commissioned Jacques Van der Gaag to head their
“The Child Support Project.” Their final
paper is called, “On Measuring the Cost of
Children.” The title makes it sound
appropriate for general use. Pretty hard to
assail.
It determined percentages of the obligor’s
gross income that could be used for child support
awards, depending upon the number of children:
|
Number of Children
|
Percent
|
|
1
|
17
|
|
2
|
25
|
|
3
|
29
|
|
4
|
31
|
|
5
|
34
|
But what is the basis for these numbers? How
arbitrary are they, or how arbitrary is it to apply
them to your case?
This was a poverty study. It studied people on
welfare. The public policy concern of the time and
impetus for all child support efforts was children
in poverty, so the states that implement this are
applying to everyone a formula meant only for very
low income families.
Indeed, at welfare levels, these percentages
produce fairly reasonable child support awards, but
only based on the following assumptions:
? No taxes paid by the NCP. (He doesn’t
make enough.)
? The CP has no income. (Welfare mom.)
? NCP spends no time with the children.
If any of the above is not true of your case,
the court has no reason to apply this formula. In
earlier papers from the Child Support Project, the
authors explicitly say that generally, both
parent’s incomes should be considered, plus an
allowance made for self-support, and that these
particular percentages cannot be applied at higher
income levels.
If the people who produced the formula say this,
it’s hard for the judge to ignore it.
Using this formula, if you are making $35,000 a
year with two children, you will pay $729 a month
in child support whether your ex makes $100,000 a
year or nothing, and whether you are directly
caring for the child half the time or never.
More capricious is the use of gross income
instead of net. At $35,000 a year and two children,
your $729 a month is about 35% of actual (net)
income. But at $70,000 a year your $1,460 a month
is almost 50% of what you actually get. A fixed
percentage of gross income is an increasing
percentage of actual (net) as income rises.
One hundred years of economic studies have never
shown this progression of rising percentage of net
income spent on children, but the opposite. There
is simply no rationale for applying this formula to
non-poverty families.
Too few people and groups are fighting this.
©2004 KC Wilson
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