SHOULD I HIRE AN ATTORNEY FOR MY CHILD SUPPORT CASE?
Indiana parents risk unfair support obligations due to complex state laws
By Doug Mentes, Esq.
There are reports of not only parents, but attorneys and judges also, having trouble figuring out the calculations and other details of Indiana child support law. Richard Mann has practiced family law in Indiana for 38 years and believes it’s important that parents understand the law so an accurate and fair child support amount can be determined. But do clients understand the state child support law when they walk in the door? “Absolutely not,” he says.
“In fact, there have been times I’ve had to bring experts in, and then I have to explain the law to the expert so they understand it. And then have the expert testify so the judge understands it,” Mann continues. In one such case, Mann says the judge afterward admitted, “I didn’t have a clue what you were talking about, but because the other attorney did not argue you were incorrect, I went with you.”
Determining gross income
Parents, and sometimes attorneys, can get tripped up right from the start. The child support calculation begins with inputting both parents’ gross incomes into the state of Indiana online child support calculator. “Most people just plug in their paystub amount,” Mann says. What’s wrong with that approach is that the child support guidelines assume an effective income tax rate of 21.88 percent.
“Let’s say you pay an effective tax rate of 35 percent. If that’s the case, then you are paying more child support than you should,” says Mann. He says he’ll calculate how much that client is over-paying because of their higher effective tax rate, and ask the court to reduce gross income by the amount of over-payment.
Further, the law requires that gross income include all sources of income. That includes wages, bonuses, and investment income, but also employee benefits like personal use of a vehicle. Mann says he will argue another parent’s receipt of employer contributions to 401 (k) and health care plans be included in the calculation, and often with success.
Healthcare costs and parenting time credit
Another complex part of the law is determining each parent’s share of the child’s health care costs. In Indiana, this involves something called “the 6 percent rule.” Mann says parents need to understand this rule to calculate support fairly and accurately, but unfortunately “a lot of lawyers don’t understand the 6 percent rule. They think it’s 6 percent of the payor’s child support. That’s not it. It’s actually a calculation based on a number in the child support worksheet.”
Indiana child support law provides a child support “credit” to non-custodial parents that exercise significant parenting time with the child. Figuring that credit is another source of confusion for parents. Mann says he’s witnessed attorneys argue over whether a non-custodial parent exercised 46 or 50 over-nights each year—an argument that is irrelevant under the law. “If you don’t have 52 overnights a year, you won’t get the credit. Fifty overnights are the same as no overnights. You get no credit whatsoever,” Mann says.
The amount of the credit is based on the number of overnights exercised, on a sliding scale from 52 to 183. Mann says some non-custodial parent clients exercise more than half of the parenting time, but once a parent reaches more than 183 overnights, “the calculators don’t work. Anything over 183 they quit working and don’t give you the right answers.” A different calculation will need to be made to determine a fair credit amount.
How courts help
Many of these issues require parents request the court deviate from the guidelines—meaning an argument that guideline support is unfair and should be in an amount less or more. Unfortunately, Mann says, Indiana courts almost never deviate from the guidelines. He cautions that courts are “not going to go do the research themselves. Plus, if you’re the judge, if you don’t have a copy of the person’s tax return, you don’t know what their tax rate is.”
Parents can put themselves in the best position to argue their case by first talking to an experienced Indiana family law attorney.