Atlanta Divorce Attorney Blog

In Georgia, the first step in determining a child support obligation is to “determine the monthly gross income of both the custodial parent and the noncustodial parent.” OCGA §19-6-15(b)(1). While this sounds fairly straightforward, calculating a parent’s gross income may be a complicated process as there are several categories of “income” that are included:

1. Attributable income – Includes salaries; commissions, fees and tips; income from self-employment; bonuses; overtime payments; severance pay; recurring income from pensions or retirement plans; interest income; dividend income; trust income; income from annuities; capital gains; disability or retirement benefits from SSA; workers’ compensation benefits; judgments recovered from civil actions; gifts of cash, or which can be converted to cash; prizes; lottery winnings; alimony or maintenance from other parties; assets used for the support of the family. OCGA §19-6-15(f)(1)(A).

2. Self-employment income – Refers to “income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and reasonable expenses required for self-employment or business operations.” OCGA §19-6-15(f)(1)(B).

3. Fringe benefits – Refers to income or “in kind” remuneration received by a parent in the course of employment that significantly reduce that parent’s personal living expenses. OCGA §19-6-15(f)(1)(C). Examples include a company car or housing.

4. Variable income – Includes commissions, bonuses, overtime pay, dividends, etc. are “averaged…over a reasonable period of time” and added to a parent’s salary to determine gross income. OCGA §19-6-15(f)(1)(D).

5. Military compensation and allowances – Includes base pay, drill pay, basic allowances for subsistence, whether paid directly or received in kind, and basic allowance for housing, whether paid directly or received in kind. OCGA §19-6-15(f)(1)(E).

If you or your spouse has a gross income that includes several of these categories, you will be best served to have an experienced family attorney help you with your child support calculation. This will ensure that you and your spouse are properly reporting your incomes, and that the proper amount of support is received for the children.

Family law attorneys deal with child support issues every day. A common question asked is: How long do I have to pay child support? Fortunately, Georgia law makes this clear. Specifically, the law says “[t]he duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs.” OCGA §19-6-15(e). One caveat to this rule is that, in any child support order entered on or after July 1, 1992, the court “may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age.” Id. Presumably, this clause was added to cover a situation where a child turns 18 in August, but will still be attending high school and living in a parent’s home until the end of the school year, 10 months later.

Despite the language in the statute, parties can agree to a longer child support duration in their settlement agreement, if they choose to do so. For example, the parties could have a clause in their settlement agreement stating that one or both parties must pay for college. A court, however, is unable to require either or both parties to pay for college. Thus, if this is something that is important to you, make sure the language is in your settlement agreement because, if you go to court to try to make your spouse pay for a child's college expenses, you will be unsuccessful.

Recently, the Georgia Child Support Commission announced that two new versions of Georgia’s child support calculator, better known as the child support worksheet, are now available for use. The two versions of the worksheet that have recently been updated are the “Downloadable Electronic Worksheet (Standard)” and the “Downloadable Electronic Worksheet with Data Entry Form.” These versions of the child support worksheet are now ready for download and use, and may be accessed by visiting the Child Support Commission website.

According to O.C.G.A. § 19-6-53(a)(3)(B)(iv), the Georgia Child Support Commission has the responsibility to annually adjust the formulas that are used to calculate self-employment, Social Security, or FICA taxes in order to account for any changes that occur in the federal tax laws. The recent update made to the child support calculator, specifically to Schedule B of the child support worksheet, is in response to recent changes to tax laws. Additionally, a Mac informational button was added to the child support website. This allows Mac users to now quickly obtain information necessary to run the child support calculator, which is an Excel spreadsheet, using a Mac. Contact your Georgia divorce attorney for more information concerning how this update to Georgia’s child support calculator may affect your divorce or child support matter.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

A recent case heard by the Supreme Court of Georgia highlighted how trial courts should characterize employer paid health premiums as they relate to child support. In Hendry v. Hendry, the parties divorced, with the mother receiving primary physical custody and the father required to pay $2400 per month in child support for their three children. Hendry v. Hendry, 292 Ga. 1 (2012).

In determining the father’s gross income for purposes of child support, the trial court included an amount that his employer pays him to reimburse the costs of his family health insurance plan. Id. The father appealed, alleging that this benefit should not be included in his gross income, and the Supreme Court of Georgia agreed. Id. The Georgia child support statute specifically states that gross income foes not include “employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including, but not limited to, employer paid portions of health insurance premiums…” OCGA §19-6-15(f)(1)(C).

The Court stated that the record showed that the father “is paid $935 each month by his employer only because he actually remits that amount each month as a premium for family health insurance, and we find no evidence that he would continue to receive the same amount if the cost of his premiums decreased or that he could redirect the amount of his reimbursement to his ordinary living expenses.” Hendry. at 4. Thus, the Court held that this reimbursement is actually employer paid health insurance premiums and should not count toward hi gross income.

The Court further noted that the father could not additionally receive credit on the child support worksheets for paying the health insurance premiums for which he was being reimbursed, as that would give him double credit for the same expense. Id.

In 2007, Georgia changed the child support guidelines. The old guidelines used a percentage of the payor's income. The new guidelines use an income sharing approach that takes into consideration the income of both parents. OCGA §19-6-15.

The first step in any Georgia child support calculation is to “[d]etermine the monthly gross income of both the custodial parent and noncustodial parent.” OCGA §19-6-15(b)(1). Many other factors go into determining child support, but this factor is generally most important in determining the amount of support. If the custodial parent makes more than the noncustodial parent, that will simply reduce the percentage of the total child support number owed by the noncustodial parent/payor.

The child support calculation can be complicated and confusing, especially for a person who is unfamiliar with how the calculator works. If you have an issue of child support, whether in a divorce, modification, or otherwise, you should have a consultation with a family law attorney to review these issues in greater detail, even if you plan on representing yourself.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

In Georgia, the right to receive child support belongs to the child, not the custodial parent. What this means is that child support may not be waived by either parent via an agreement or via the conduct of either parent. See Sharpe v. Perkins, 284 Ga. App. 376 (2007).

It has become more a more popular for couples considering marriage to enter premarital agreements in order to settle issues of property division or alimony in the event of divorce. Additionally, upon divorce some couples enter marital dissolution agreements in order to settle the issues concerning their divorce in lieu of taking their case to trial. Although these agreements may settle issues such as the amount of alimony, if any, as well as how the couple’s property, assets and debts will be divided upon divorce, these agreements cannot legally waive a child’s right to receive child support. See Department of Human Resources v. Brinson, 171 Ga. App. 905 (1984) and Collins v. Collins, 172 Ga. App. 748 (1984).

Not only is it impermissible for a parent to waive a child’s right to child support via a contract or written agreement, but in Georgia it is also impermissible for a child’s right to child support to be waived due to the conduct of either parent. For example, a child’s right to child support may not be waived due to his mother’s failure to answer a complaint for divorce filed by his father. Department of Human Resources v. Brinson, supra. Additionally, a parent’s obligation to pay child support is not waived or excused because the custodial parent refuses to allow visitation or parenting time, because in Georgia, one parent’s obligation is not excused by the obligatory failure of the other parent. See Ward v. Department of Human Resources, 241 Ga. App. 298 (1999).

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Can you file for divorce while you or your spouse is pregnant with a child of the marriage? Of course you can – but watch out! Under Georgia law, there are serious consequences when parents enter into a custody or child support arrangement for a child that has not yet been born.

Georgia courts can award child support or create other obligations that might be difficult, or impossible, to modify after the child is born. One example can be found in the case of Roberson v. Fooster, 234 Ga. 444 (1975), in which a father sought to terminate a child support obligation, contending that the subsequently born child was not his. The Court declined to terminate the child support based on the doctrine of res judicata. The Court held that the child’s paternity was an issue to be decided during the divorce (Boone v. Boone, 225 Ga. 610(1) (1969)). Since paternity was not challenged by the father at that time of the divorce, it could not be asserted later as grounds for modification or termination of the child support obligation.

In another case, Daughtry v. Daughtry, 218 Ga. 557 (1963), a father challenged a trial court’s order holding him in contempt of his divorce decree and requiring him to pay alimony and child support on a child who had not been born at the time the divorce decree was entered. The trial court overruled his motion to dismiss the contempt petition, which had generally alleged a lack of jurisdiction over the unborn child. However, the divorce decree included the language, “[t]he matter of support for said child after its birth is not now decided, but left in the breast of the court.” The Supreme Court affirmed the trial court’s contempt order requiring the father to pay alimony and child support, even though there had been no specific child support obligation in the divorce decree. Although the case was decided on other grounds, in its opinion, the Court pointed out that the father had never challenged the mother’s right to receive support for the child, nor questioned the authority of the trial judge to award alimony or child support.

If custody or support of an unborn child is at issue in your divorce case, it may be best to wait to address those issues until the child is born. At the very least, you should discuss this issue with an experienced Georgia family law attorney before entering into any agreement.

By Savannah Murphy, Associate Attorney, Meriwether & Tharp, LLC

According to an article on Cleveland.com, an important change could soon have an unexpected impact relating to child support debts. The change has come about as an attempt to reduce money spent by the federal government mailing out paper checks. The Treasury Department has decided to start making government benefits payments electronically as of March 2013. This will put a stop to the paper checks that many rely on to shield a portion of their monthly income from states that attempt to collect back child support.

Starting in 2013 the Treasury Department will deposit all federal benefits directly into bank accounts or load them onto prepaid debit cards. These electronic payments are expected to save the government $1 billion over the next 10 years by not having to issue paper checks. Regardless of the chosen method, state governments will be allowed to reach the money. Currently states are only permitted to garnish 65% of the benefits an individual is entitled to before the money is disbursed. This same limit does not apply once the money has been distributed to an account or a prepaid debit card when the states can demand that banks freeze the funds.

States have long had the power to put a freeze on the bank accounts of those who owe child support. A relatively recent ruling by the Treasury Department permits states to freeze Social Security, disability and veterans’ benefits that appear in bank accounts. Once paper checks are eliminated some 275,000 people delinquent on child support could lose access to all of their income.

This presents huge problems for a certain segment of the population, typically poor men behind on their child support. There are many instances where these back payments are decades old or concern children who have long since grown up. Usually in these cases the bulk of the money owed is for interest and accumulated fees.

Of the money that is collected, most will go to state governments, not to the children of the men who are owed the money. The rationale is that the states should be allowed to keep this money as repayment for money they spent on providing welfare services for these children.

Though the goal is a good one, the method will likely produce complicated and even counterproductive effects. Many of the men on the receiving end of this new collection practice are already facing financial ruin in the form of eviction, foreclosure and inability to pay other bills. The figures are stark: among those owing $30,000 or more, three-fourths reported either no income or income of less than $10,000. By allowing states to seize federal benefits, these men may very well be left penniless.

Source: “Direct deposit and federal rule change could cost child-support debtors their only income,” by The Associated Press, published at Cleveland.com.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

According to an article in the Atlanta Journal-Constitution, Georgia parents who are behind on their child support payments have reason to hope that they’ll see their children rather than the inside of a jail cell thanks to a new program started by courts across the state. “New court pushes fathers to make turnaround,” by Tammy Joyner, published at AJC.com.

The reason for the hope is the introduction of an innovative program in Georgia called parental accountability court. Thanks to the program, parents behind on child support payments can avoid jail and instead work at chipping away the money they owe while still getting to see their kids.

Parental accountability courts have been cropping up across the state. They are the product of a joint effort by Georgia’s Child Support Services department and various local court systems and are designed to offer an alternative to jail. Using resources that exist in the county, the courts address the specific problems facing delinquent parents that prevent them from making regular payments: unemployment, drug use, lack of transportation, etc.

In Georgia, the problem of late payment is massive; a recent report from the Department of Human Services showed that four out of every 10 parents paying child support are delinquent. The parent that’s behind on the payments can then wind up in jail for up to three months, costing the taxpayers $1,500 per month. Moreover, when they’re released they have the same problem as before, no job and no money with which to pay support. As a result, many constantly circulate between jail and court, costing taxpayers thousands while accomplishing little to help the children.

Of the programs that have been started across the state there appears to be real potential. In Hall County, the court’s first year of operation saw child support payments from non-custodial parents grow by $45,000. Simultaneously, the cost of incarcerating non-paying parents fell by $178,000 as the program helped people find work.

Parental accountability courts attempt to address the real problem behind delinquent payments, that many people are in need of jobs to pay the money they owe. Throwing them in jail when they don’t pay does little to solve the problem and that’s what Georgia appears to have recognized.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

Question: Can I get a wage garnishment for back child support on Georgia?

Answer: In Georgia, you cannot obtain a garnishment until you have a Court Order establishing that the other party does owe you back owed child support. Thus, in general, until you have obtained an Order on a Contempt action, you cannot do anything. Once you have an Order establishing the amount owed, then you can request the Court to issue the garnishment.

Question: Can a mother sue the biological father of her children for back child support?

Answer: In Georgia, you cannot sue for retroactive child support, unless there was a previous Court Order establishing that support was proper and establishing the amount of support. If a party wants child support, they must seek it right away. That party can then receive support from the time the Order is entered and going forward until the child turns eighteen.