Many times, divorce or dissolution is not the end of the story, especially if children are involved. There can be numerous circumstances following the final divorce decree which might necessitate changes to the order. All state divorce laws provide for an ability to change those final orders by petitioning the court under a variety of conditions.
Either party, the court itself, or, in some circumstances a child welfare agency can move to change the final court orders of custody and child support.
Change of Circumstances
Either party can move to change the child support amount by showing a change of circumstances in the lives of any of the parties, including the child. Some states limit the number of times that a party can bring such a motion.
A change of circumstances can be change of income of any party (which usually has to be more than 10 percent), change in legitimate expenses of any party, change in visitation hours that effectively change where the child lives, and any other changes that definitively affect the lives of the parties.
In most courts, a motion to modify the child support order based on change of circumstances is filed with the court along with backing documentation, and then the action is heard by a magistrate, who then makes a recommendation to the judge.
Generally, only one parent can claim a child for tax purposes after a divorce. Most of the time, this is the custodial parent or the parent who has custody for more than six months of the year. This includes child and dependent tax credits and any potential earned income credit. These tax claims can also be made if the parents are separated for six months. This arrangement can be made by agreement or court order but can be changed based on change of circumstances. The key here is that the parent claiming the deduction or EIC follows IRS rules and submits the correct form to the IRS. If there is no court order, the parent claiming the child must sign Form 8332.
Emancipation: Ending Child Support
The obligation to pay child support on the part of the non-custodial parent continues until the child dies or reaches the “age of emancipation.” That age is determined by state statute and notes the time when a person legally transitions from a child to an adult in that state.
The age of emancipation, called the “age of majority,” generally parallels the time when a person can legally sign a contract, although not always.
The age of majority occurs on the child’s 18th birthday in most (33) states. Other states place the age of majority at 19, 20 or 21. Some states have different dates for emancipation and majority.
Child support is usually terminated at the age of majority.
Exceptions to Emancipation at Age of Majority
The statutory exceptions to emancipation at the age of majority cut in two different directions: emancipation either before or after the child reaches that age. Again, these exceptions are by state statute, so states may vary.
First, the death of either the child or the non-custodial parent terminates any child support obligation.
A child who is leading the life of a completely independent adult can be emancipated by court order on motion of either the child or a parent. Proof of this complete independence includes military service; graduating or dropping out of high school, getting a job and moving out of the home; deportation of the child; or any other circumstances which the court decides proves the child’s emancipation.
However, if the child just has a job but remains living in the home that is usually not enough of an indicator of independence to emancipate the child.
Emancipation after the child’s statutory age of majority birthday can occur in several ways, usually either by agreement of the parties or by statute. A common example of this is an agreement between the parents to pay for college after emancipation.
There are some cases where child support may continue almost indefinitely—for instance, when the child has physical or mental challenges that make it impossible for that child to have an independent life. This is one area where the support may continue either by agreement or by court order, as, again, in all cases domestic relations judges take the best interests of the child as their primary approach to determining these issues.
Judicial Termination of parental rights
There are some circumstances that are so extreme that a judge will step in and terminate parental rights and, therefore, child support obligations. These include a parent who is a clear and constant danger to the child through child abuse, drug addiction, etc. or a parent who is not involved in the child’s life. This is also the first step in an adoption. Such a motion can be brought by the other parent or an appropriate child agency.
In some cases, the new spouse of a remarried minor child will adopt that child. Adoption of a child by a third party terminates the rights and obligations of the non-custodial birth parent, and so terminates the child support obligations of the actual parent.
In the case of adoption, the non-custodial parent loses all rights to and obligations for the child. In terms of paperwork, an adoption has the same legal effect as if the child had never been born to the parent who is not a party to the adoption, with one exception. Adoption, however, does not eliminate the original parent’s child support arrearages.
In the case of marriages that include adopted children and in which neither party is the biological parent, including same-sex marriages, it is safe to say that litigating matters of custody and support in these cases will be extremely complicated if there is no prior agreement between the parents. The law is divided across jurisdictions in these circumstances, and the judge should be basing their decision on the best interests of the child or children.
By Motion of the Parties
As in the modification of the child support obligation amount, either party can move to terminate child support at any time. Each state will handle this in its own way, but common reasons include that the custodial parent has remarried and no longer needs the money, or that the child has moved in with the non-custodial parent. This process is started by either a motion with the court or an administrative form, depending on the state. A child social agency will then investigate, write a report to the court, and the court will decide.
Formally Terminating the Support Obligation
Even though the agreement, by statute, or by the order of child support will have language in it indicating at what point the child is emancipated, the parties will sometimes need to take further steps to actually legally terminate the financial obligation. The laws vary from state to state but there may or may not need to be a separate court order to terminate the child support. Regardless, the parties should still notify the court and appropriate agencies when the child is emancipated. The agency will then do the paperwork to terminate the support obligation, stop wage garnishment, and so on. However, this may take a while, so the advice is always to file the paperwork with the support agency several months before the actual emancipation date.
The non-custodial parent’s child support obligations cease from the date of emancipation. But that may not be the end of the story.
The obligor will still have to pay any child support arrearages and will still be subject to any state or federal punishment for non-payment.
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