What is child support?
Alimony is a legal institution involving a person’s obligation to provide financial support to a spouse before or after a divorce (so-called alimony for a wife or alimony for a husband) as well as the benefits necessary to support lineal relatives (child support, grandchild support, parental support, grandparent support, etc.). In addition, alimony may be awarded to siblings.
What Factors Affect the Amount of Child Support?
Each parent is obligated to support their children in accordance with the principle of an equal standard of living. The limits of this obligation are defined, on the one hand, by the child’s justifiable needs and, on the other hand, by the financial and earning capacity of the person obligated to pay child support. The obligation to provide child support may also involve personal efforts toward the child’s upbringing. The key issue here is the amount of resources needed for the child’s support and proper development. This is not merely about providing the child with basic necessities such as food, housing, medical care, or educational opportunities. It is also reasonable for the child to be able to pursue their interests by attending extracurricular activities, which are usually fee-based. The child’s needs regarding summer or winter vacations, trips to the movies or theater, or socializing with peers are also taken into account.
Calculating the costs necessary to support a child is therefore no easy task. A parent’s earning capacity is also a key factor in determining the amount of child support. A parent with a higher earning capacity may be ordered by the court to pay a higher amount of child support than the other parent, whose earning capacity is lower.
Another important factor in determining the amount of child support is which spouse has custody of the parties’ child or children. This spouse is known as the “primary custodial parent.” This is because the spouse involved in the ongoing care of the children naturally has fewer earning opportunities than the parent whose care is limited to scheduled visits with the children during non-working hours, such as on weekends. Therefore, which parent provides day-to-day care for the children should also influence the amount of child support.
When can you receive spousal support for your wife or husband?
After a divorce (or a legal separation), the spouse who is in need is entitled to spousal support. The courts define “need” as a very difficult financial situation, not merely a general deterioration of financial circumstances resulting from the divorce. However, a spouse found to be solely at fault for the breakdown of the marriage is not entitled to alimony. Furthermore, a spouse found to be solely at fault for the breakdown of the marriage is obligated to provide the other spouse with support even if the other spouse is not in a state of need; it is sufficient that the other spouse’s financial situation has significantly deteriorated as a result of the divorce. As can be seen, therefore, determining fault for the breakdown of the marriage is of great importance in defining spousal support obligations between divorced spouses.
The
obligation to provide spousal support to the other spouse expires if the spouse receiving support remarries, or 5 years after the divorce decree is issued. However, this second limitation (the 5-year period) does not apply to a spouse who has been found at fault for the breakdown of the marriage.
When can you apply for child support?
You can apply for child support during divorce or legal separation proceedings, or you can do so by filing a separate petition for child support, for example, in the case of child support for children born out of wedlock. The petition for alimony must specify the amount of alimony to be awarded. The amount of alimony stated in the petition must be accurately calculated and substantiated so that the court has a legal basis for awarding the requested amount. During the proceedings, both parties will be required to submit documents confirming both their actual living expenses and their income and financial situation. The court will review the evidence presented by the parties and then rule on the amount of alimony. If a party to the proceedings refuses to submit documents confirming their income, the court may deem the opposing party’s claims in this regard to be proven.
According to court precedent, the earning capacity of a person obligated to pay child support is not determined by their current financial situation—that is, the amount of their current salary or income from business activities— but primarily by their potential earning capacity, which is based on a long-term history of professional activity. Consequently, if, for example, a husband loses his job and registers as unemployed during alimony proceedings in order to evade his obligation to pay alimony to his wife or children, this will not deprive the entitled parties of the right to claim alimony in an amount commensurate with the income that the person obligated to pay alimony earned in the past, unless the loss of employment was the result of extraordinary circumstances, such as disability resulting from an accident.
It
is also possible to receive child support from siblings or from children for parents or other ascendants.
The
attorneys at our firm provide legal advice regarding child support, help determine the amount of child support that can be obtained, prepare child support petitions, and represent our clients in court proceedings. If you are interested in obtaining legal assistance, please contact us to schedule a meeting with an attorney.