It used to be fairly easy to prove someone wouldn't pay child support because they didn't want to. But it hasn't gone unnoticed that there are more people who want to pay child support but simply can't.
Legal aid attorneys said they have noticed more people can't afford child support more often since the downturn in the economy started a few years ago They're also seeing it more frequently among clients who had no trouble paying child support when they were making more money or had better jobs a few years ago.
This is also reflected in changes to the child support guidelines that took effect earlier this year, including how to calculate potential income and the previous wording of how to determine support for couples with combined weekly adjusted income of less than $100, which used to be worth more than it is today.
"Economic data indicate one hundred dollars, which is half of the 2008 federal poverty level for one person, is not sufficient for a person to live at a subsistence level today. The prior obligation amounts at combined incomes of $100.00 per week are $25.00 per week for one child and $50.00 per week for two children. These amounts absorb 25 and 50 percent, respectively, of the parents' gross income. Most states set their minimum child support order at $50.00 per month, which is about $12.00 per week," the revised guidelines state. "Therefore, the revised low-income adjustment sets the obligation amount for combined weekly incomes of $100.00 at $12.00 for one child."
The revised guidelines also address how it is better to have realistic child support obligations than to overwhelm the non-custodial parent.
"However, attributing potential income that results in an unrealistic child support obligation may cause the accumulation of an excessive arrearage, and be contrary to the best interests of the child(ren). Research shows the non-custodial parent's involvement increases the child's educational attainment and reduces juvenile delinquency. Since parent-child contact and child support payments are highly correlated, ordering support for low-income parents at levels they can reasonably pay may improve non-custodial parent-child contact; and in turn, the outcomes of their children," the revised guidelines state.
Tom Frohman, an attorney for the Bloomington office of Indiana Legal Services, said he has had a steady stream of non-custodial parent clients who just can't pay what is asked of them.
"The guidelines are predicated on the concept that children should receive the same proportion of parental income as if the parents still lived together," he said. "That concept is sometimes completely ignored by child support orders."
He also said that calculations of potential income don't always add up in reality.
He gave the example of a client making $7.55 per hour, but could only get 25 hours a week. However, the client's support order might be based on a 40-hour workweek, even if that wasn't what he was able to work.
"Even intact families struggle to find and keep work," he said. "I hate that children sometimes have to do without, and sometimes times are tough for families, but that doesn't change when families split up. When a non-custodial parent was a part-time, low-income worker in the household to make ends meet, it doesn't make sense to think he's now a money-making machine," just because he no longer lives with the family.
Frohman added that wasn't to say there aren't bad parents out there who are just avoiding their support obligations, but there are a number of parents who want to pay but just can't.
John Floreancig of the Legal Aid Society of Indianapolis said he noticed similar issues. He said the clientele of legal aid has changed dramatically in recent years and includes more people who had middle-class lifestyles but recently lost their jobs and are now unemployed or underemployed. He said those people may not ever be able to find a job at the rate they were making before.
"You might have a guy who may be a professional, for instance an engineer, who is educated and on the ball, has a good work history and a good earning history, but then his whole department is eliminated, and there aren't any more jobs in that field," he said.
It's then up to the court to decide if it is truly temporary that he won't make the same amount he did before he was laid off.
Like Frohman, Floreancig said there were still some who just refused to pay, but that isn't always the case.
The courts also have noticed a change and are approving modifications as needed.
Allen Circuit Magistrate Craig J. Bobay said in the past three years he has noticed more people who can't pay child support.
"I'm seeing … modification of support and contempt for non-payment cases. I've found that given the economic climate, it's a lot more difficult to prove contempt. Five or 10 years ago, you could just say if you're not employed it must be because you're not looking and don't want to be employed."
He has also noticed fewer contempt cases have been filed.
"That may be surprising to some," he said, "But people seem to understand the economic reality of what happens when someone's employment is cut or eliminated, or their income is reduced. I'm seeing parents who are working together more with an understanding of the economic reality."
He added the revised child support guidelines emphasize why it's important not to assume someone is capable of getting a minimum wage job if they're not working.
"You have to look behind the scenes," he said, adding the parties in his court have seemed reasonable.
"Maybe it's a little counterintuitive but we've been in the economic downturn long enough that parents on the other side understand," he said.