Child Support Reform:
Percentage of Obligor

 

 In 1989, all states quickly adopted one of two formulas, or some derivation thereof, to calculated a presumptive child support amount for every case. Needless to say, these formulas do not take your case or circumstance into account. In fact, they take almost no one’s into account, which is why their results are out of sync with reality. It is also why they can be, and are, successfully challenged.

[I am not a lawyer and this is not legal advice. Use a lawyer and economics expert for your case.]

An important tenet of our legal system is that no statutory presumption may be arbitrary. That is, the courts must judge each case on its own merits and no law can prevent that. [Morgan v. Georgia, 279 U. S. 1 at 6 (1929); Leary v. United States, 395 U. S. 6 at 32-37 (1969). Thanks to John Remington Graham for the citations.]

If any child support guideline fails to take your particular situation into account, the court must.

Percentage of Obligor (also called the Wisconsin Model) is the most arbitrary and irrational. It was adopted by 13 states such as New York, Wisconsin, Mississippi, and Illinois. It comes from an early 1980s study on poverty when the University of Wisconsin’s Institute for Research on Poverty commissioned Jacques Van der Gaag to head their “The Child Support Project.” Their final paper is called, “On Measuring the Cost of Children.” The title makes it sound appropriate for general use. Pretty hard to assail.

It determined percentages of the obligor’s gross income that could be used for child support awards, depending upon the number of children:

Number of Children
Percent
1
17
2
25
3
29
4
31
5
34

But what is the basis for these numbers? How arbitrary are they, or how arbitrary is it to apply them to your case?

This was a poverty study. It studied people on welfare. The public policy concern of the time and impetus for all child support efforts was children in poverty, so the states that implement this are applying to everyone a formula meant only for very low income families.

Indeed, at welfare levels, these percentages produce fairly reasonable child support awards, but only based on the following assumptions:

? No taxes paid by the NCP. (He doesn’t make enough.)

? The CP has no income. (Welfare mom.)

? NCP spends no time with the children.

If any of the above is not true of your case, the court has no reason to apply this formula. In earlier papers from the Child Support Project, the authors explicitly say that generally, both parent’s incomes should be considered, plus an allowance made for self-support, and that these particular percentages cannot be applied at higher income levels.

If the people who produced the formula say this, it’s hard for the judge to ignore it.

Using this formula, if you are making $35,000 a year with two children, you will pay $729 a month in child support whether your ex makes $100,000 a year or nothing, and whether you are directly caring for the child half the time or never.

More capricious is the use of gross income instead of net. At $35,000 a year and two children, your $729 a month is about 35% of actual (net) income. But at $70,000 a year your $1,460 a month is almost 50% of what you actually get. A fixed percentage of gross income is an increasing percentage of actual (net) as income rises.

One hundred years of economic studies have never shown this progression of rising percentage of net income spent on children, but the opposite. There is simply no rationale for applying this formula to non-poverty families.

Too few people and groups are fighting this.

©2004 KC Wilson

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