Here’s an article that I recently wrote for the Legal Staff Professionals of Greenville (LSPG) monthly newsletter.

It’s that time of year again – school is back in session.  These days college seems to be automatic for most high school graduates.  The process begins early in high school preparing for entrance exams and completing applications, and with state support for colleges decreasing, the prices for those incoming freshmen, and their parents, continue to rise.  College expenses are hard on married couples, but at least the child support laws allow divorced parents can get help from their former-spouses for college expenses, right?

South Carolina Code §63-3-530(A)(17) states that the Family Court has jurisdiction to make orders for child support to run until the child turns eighteen (or until the child graduates from high school), becomes married or self-supporting.  The statute goes on to allow a court order for child support past the age of eighteen when there is a specific agreement, when there are physical or mental disabilities of the child or in “other exceptional circumstances that warrant the continuation of child support beyond age eighteen.”

In 1979, the South Carolina Supreme Court decided Rinsinger v. Rinsinger, 273 S.C. 36, which a child support order to continue past age eighteen because of college expenses incurred by the child and in part due to the parent’s ability to pay.  It is important to note that this child support could only be continued from a previous order and not a new petition filed for child support.  In this decision, the Court considered a child wanting to go to college as an “exceptional circumstance” provided they showed the aptitude for doing well, desired to attend college, and the parent’s had the financial ability to pay for college.

This would seem to be a nice bonus to be able to offer our divorce and child support clients.  But, everything changed this year.

On April 19, 2010, the South Carolina Supreme Court ruled in Webb v. Sowell, 387 S.C. 328, that treating supporting parents in to different ways (those with a previous child support order and those without a previous support order) failed the rational basis test and violated the Equal Protection Clause of the United States Constitution.  The current court position on this topic is that neither parent has a common law duty to provide for the post-secondary educational expenses of their children and that the statute should not allow the court to continue a previous support order beyond age eighteen for one supporting parent when they could not institute a new support order after age eighteen for another supporting parent.  Because it treats two different “classes” of people differently, the statute is unconstitutional.

Based on the decision in Webb, it appears that a court will no longer consider college expenses to be an “exceptional circumstance” that allows them to continue child support and the only way to attempt to have a former-spouse assist with college expenses would be to include a very specific provision regarding college expenses in a separation agreement during the initial divorce/custody litigation.

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My ex has custody of our children and I pay child support to her.  I asked my ex to leave some of our kids’ clothes at my house but she refused and told me I need to go buy my own set of clothes for them to have at my house.  Shouldn’t that be included in the child support I pay?

Answer:

Child support is based on a calculation model that attempts to determine the share of each parent’s income that would be used on the children as if the parents were still together.  The calculation determines what the gross support obligation is a divides it up between the parents.  This is based on the parents’ gross income and how much time they spend with each parent.  Theoretically, your child support payment is what is needed as support only while they are at your ex’s home because you are given a credit for the time that the children are with you in your home.  Based on that theory of child support you need to provide the same necessities for your children when they are with you as they are provided at home with your ex.  Those necessities are food, clothing, shelter, utilities, appropriate furnishings, transportation, health care and recreation.

If you feel like you are being gouged on child support or your children are spending much more time with you now than when the child support order was previously issued, I would recommend that you begin to keep a journal of the time you spend with your children, and specifically on the money that you are spending above and beyond the child support such as for food, clothing, household supplies (like toothpaste, soap, deodorant, diapers, etc.).  Things that are not just “fun things” and gifts to your kids.  You may be able to use this information to convince a court to reduce your monthly child support obligation by deviating from the South Carolina Child Support Guidelines.

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But what about the situation where the mom and dad are not married and they have a child together?  In this case, the dad is still going to be responsible for financially supporting the child.

That all seems pretty straight-forward, right?  Pretty much what you would expect. But there is a curveball.  Who is responsible when a couple is married, but the wife has a child by another man (not her husband).  This does not always happen in some illicit affair.  Many people that I have spoken with are married, but have not seen their spouse in over ten years and they have moved on (with everything except getting the divorce finalized).  If the relationship between the mom and the biological dad do not work out in this case who is held responsible for the child?  The husband.

Gasp!  That’s right, not the biological father.  When a couple is married in South Carolina and a child is born the husband is deemed to be the legal father of the child and if a support action is filed, the husband will be the defendant – not the biological father.

So why is it set up like this?  Because the government wants to make sure that children are supported and do not become dependent on the state.

Is that fair?  There is a case pending in Michigan right now about this very issue.  You can read more about the paternity law issue in the Michigan courts here.  Hat tip Family Law Prof Blog.

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In theory, the calculation of child support should be very simple.  South Carolina has worked out a calculation found in the South Carolina Child Support Guidelines that calculates child support based on several factors – mainly the parent’s gross income, whether they are under a previous order to pay child support for another child, if there are other children in the home that will not be covered by this support order, health insurance premiums for the children, work related childcare expenses, and extraordinary medical expenses for the children. In theory, you just plug these numbers in and out pops the parent’s monthly support obligation.

The video shows you the South Carolina Department of Social Services web child support calculator located at:

http://www.state.sc.us/dss/csed/calculator.htm

In practice, what happens is people quit jobs and take lower paying jobs so their child support obligation will be lower.  They claim that the bad economy should allow them to pay less each month.  Perhaps the mother has been a stay-at-home mom during the marriage, but the father believes that she is capable of working and since they are going through the divorce she should go get a job and he is asking that the court impute wages to her.  Many times, one of the parents has worked for cash and he/she does not report all of his/her income so it may be hard to determine upon first glance what his/her income truly is.  To impute wages means that the court will calculate child support as if that parent was earning the amount of income the court believes they are capable of earning.

If you are going through a divorce or child support is an issue in your life, I would encourage you to consult with an attorney.  There are so many intricacies and nuances where people will try to take advantage of a trusting spouse when it comes to child support and having to pay out money every month.  Even if you plan on moving forward without an attorney, I would recommend that you at least consult with an attorney to get an idea of what child support should be if you believe your spouse is capable of earning more than they currently do or if you believe they are going to try to take advantage of you.

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