Deviation from the child support calculations is not an ordinary result in custody and divorce cases. Typically, a non-custodial parent will have to pay child support in accordance with the Alabama child support guidelines. Unless the noncustodial parent and custodial parent agree that child support will not be necessary and provide support for that agreement, or the court finds that following the guidelines is manifestly unjust or inequitable, then the guidelines will apply. Below are some scenarios in which a deviation is likely.
Alabama law allows parents to agree to deviate from the child support calculations, either up or down, so long as the agreement is fair for both parents and is premised on good reasons for the deviation. Many times a custodial parent will agree to drop child support altogether in light of the non-custodial parent’s economic, mental or medical condition, which would prevent that person from complying with child support orders.
If parents are not able to agree, they are permitted to request that the Court order a deviation either over or below the child support figure determined by the guidelines. Some factors that may assist a parent get a deviation above the guidelines include, but are not limited to extraordinary medical expenses for a child that are not covered by health insurance, the custodial parent is paying college or other higher education expenses for a minor or adult child without assistance from the non-custodial parent. If the non-custodial parent is paying these college expenses without assistance from the custodial parent, then that may be a reason for a deviation below the guidelines.
If, during a marriage, a parent who is not receiving primary physical custody of a child made a bulk of certain extracurricular expenses, such as private school tuition, therapy, or training, then the parent who will be awarded custody can ask that those payments continue as a part of child support in addition the figure calculated using the guidelines. The premise for such an argument is the stability of the child’s schedule. Having to switch schools or stop therapy may be inordinately detrimental to the child; and, if the non-custodial parent has the ability to pay for such things, a Court may require that parent to continue paying to continue the positive impact on the child’s life and stability.
A court may also order deviation based on the condition of the non-custodial parent. For instance, if the reason that the non-custodial parent does not have full custody rights is because of that parent’s mental or physical condition or destitute financial status, then a judge may reduce or eliminate that parent’s child support obligation; this may be particularly true if the custodial parent has the financial means to care for the child independent of any monetary assistance.
However, simply because a non-custodial parent does not have any money, does not mean that a judge cannot order that person to pay child support. In Part I of this child support discussion, we explained that a paying party’s income is not based on what they are earning, but what they are capable of earning. So, if a parent is not able to be gainfully employed because of a physical or mental disability, then he or she will have a good defense to paying child support based on the guidelines. But if unemployment is due to a person not wanting to work or the job market being tough, the argument for deviation becomes a little more difficult, though not impossible. In that scenario, it is vital that a parent prepare a detailed monthly budget to review with their attorney, showing that after payment of only necessary expenses (shelter, food, clothing, transportation), there is little or no money remaining for child support. Given the utmost importance of child support and ensuring the stability of Alabama’s kids, this approach is not always successful.
The attorneys at Martinson & Beason, P.C. are prepared to deal with any issue regarding child support, whether assisting a parent defending a support obligation they cannot fully afford, or helping a parent get additional assistance to pay for therapy for a special needs child. We look forward to helping any way we can.