In short, yes, there are ways to obtain child support even if the other parent is not working. Child support is a court-determined periodic payment that is ordered when two parents are separating or as a result of a divorce proceeding. The purpose of child support is to help provide for the costs of raising a child.
Although each state has their own set of child support laws, each state’s child support laws will typically determine the amount of the child support based on similar factors. These factors include the amount of time the child lives with each parent, the child’s best interest standard, and each parent’s income and financial obligations.
Generally speaking, the parent who does not have primary physical custody of the child, is the parent that is ordered to make child support payments. Their child support obligation will be outlined in a child support order.
Mandatory child support is the means by which a family law court can ensure that a non-custodial parent is contributing to the needs of their biological or adopted children. The word mandatory means that the child support is required by law, and any parent who is required to make payments cannot escape their obligation.
When it comes to a non-working or unemployed parent, child support is still mandatory. This means that there are still ways in which the custodial parent will be entitled to receive child support on behalf of their child or children.
As such, it is important to understand the state laws regarding unemployed, underemployed, or non-working parents with regard to child support. This article explores how an individual can get child support if the other parent is not working.
What Are Child Support Awards?
As noted above, when parents do not share physical custody of their child equally, the parent that the child spends less time with will generally be required to pay some form of child support. This child support obligation will be outlined in a child support award.
Eligibility: In some cases, a relative other than a parent may seek child support. This often happens when a grandparent, aunt, or uncle has primary custody of the child. State laws set who can file. A custodial relative may need to first get legal custody before the court will look at a support order. A family law attorney can review your role and tell you if you can file.
In order for there to be a child support order, the parent with primary custody must typically file a request that a family law court order the non-custodial parent to pay child support. After a court receives that parent’s petition for child support, they will then notify the non-custodial parent of the civil action filed against them.
The non-custodial parent will then have an opportunity to provide an answer to the petition for child support. They will also be asked for certain documentation to be provided to the court. For example, both parents may be requested to fill out a sworn child support affidavit.
A child support affidavit is a sworn written statement or declaration that a person declares their financial information under oath. This includes whether or not they currently receive or are obligated to pay child support.
This also includes their employment information, such as whether or not they are employed. If the parent submits to the court that they are unemployed, then a child support order may still be pursued. Of course, the amount of a non-working party’s child support obligation will be dependent on a variety of different factors.
How Does a Court Determine Child Support When a Father Isn’t Working?
Once again, each state will have their own specific child support laws. In general, each state will have a child support guideline within their laws that provides for the amount of support that is presumed to be in a child’s best interest.
For example, in Texas it is presumed that ordering child support in the amount of 20% of an obligor’s net resources is in the best interest of the child. This means that there is a presumption that a child support award of 20% of the non-custodial parent’s net resources should be the award amount.
For instance, if the non-custodial parent obligated to pay child support makes $5,000 in net resources a month, then their child support obligation is $1,000 based on the Texas child support guidelines.
When it comes to determining child support when a father isn’t working, a court will first look at the past financial information of the father. For example, the court will often take a look at the past few years of tax returns and pay stubs in order to determine the child support award.
Evidence: To show a parent is unemployed, the court may want to see a termination letter from the past employer and recent unemployment benefit statements. If the parent cannot work due to a health issue, medical records or a doctor’s note may be needed. Job search logs and applications can also help show the parent is trying to find work.
If the party has been unemployed for a significant amount of time, the court will still be able to create a child support order based on the minimum child support guidelines. Each state will have their own laws regarding state minimum child support.
For example, in Texas, in the absence of evidence of a party’s income, the court shall presume that the party has income equal to the federal minimum wage for a 40-hour week. Then the child support guidelines will be applied to the federal minimum wage. It is important to note that your specific state may calculate minimum child support in a different way.
State Variations: States handle child support for unemployed parents in different ways. Some states, like Texas, presume income at the federal minimum wage when no proof of earnings is given. Other states use the state minimum wage or the parent’s past earnings. A few states impute income based on what the parent could earn given their work history. Always check your state’s rules.
As such, it is often recommended to consult with an experienced family law attorney in your area who is familiar with calculating child support based on unemployment of the other party.
What Are Other Factors Considered By a Court When Determining Child Support for an Unemployed Party?
First, a court will always consider the reason for underemployment or unemployment of the other party. For instance, the other party may be unemployed due to termination from a previous job, a disability as a result of health conditions, or because they are the primary caretaker for other children.
As such, if the other party was recently laid off due to no fault of their own, the court may consider pausing child support payments and allowing the other parent time to search for meaningful employment.
If the other party is unemployed due to a disability that prevents them from working, the court may order child support be paid from any disability benefits the parent qualifies for and receives.
However, if the other party is voluntarily underemployed, the courts will often be less lenient. For instance, if the net resources of the party were $100,000 before the parents split up, but they recently took a job that only pays $20,000, the courts will generally base the child support award on their higher paying job.
In other words, the court will first make a determination as to whether or not the other party is voluntarily underemployed. Then, if the court determines they are voluntarily underemployed, the court will allow for a child support award based on their ability to earn a certain income.
Risks: A parent who hides income to lower their child support faces real risks. If the court finds out, it can order back support based on the parent’s true income. The parent may also face fines, wage garnishment, or jail time for contempt of court. Hidden income can include cash payments from side jobs or assets held in someone else’s name.
A court will also look at the financial information from the custodial party. If the custodial party earns significantly more than the non-custodial party, that may be a factor in determining the amount of child support. A court will also look at whether or not the individual that is unemployed has been making meaningful efforts to secure employment.
How Can I Obtain a Child Support Award if the Father Isn’t Working?
As noted above, the custodial parent must generally take certain steps in order to obtain a child support award. The child support order will not be automatically created without affirmative action by one party.
Costs: Filing for child support comes with court fees that often range from about $50 to $400, depending on the state and county. Modification requests usually carry their own filing fee. Other costs may include service of process and attorney fees if you hire a lawyer. Many courts allow people with low income to ask for a fee waiver.
As such, the general steps in order to collect child support are:
- Establish Parentage: If the two separating parties were not married when their child was born, then there is likely no presumed father. As such, a paternity test will need to be performed in order to establish parentage
- The father may sign an adjudication of parentage
- Establish Child Support Order: After establishing parentage, the party seeking child support will need to contact the appropriate agency or court to file a petition for child support
- Once again, child support will be calculated by utilizing the appropriate state child support guidelines
- Enforce Child Support Order: After a child support order has been created by the court, the parent receiving support will then need to set up an account to receive payments.
Process/Steps: A child support order can be changed if the non-custodial parent loses their job after the order is in place. The parent must file a request to modify the order with the court. Most courts will not lower payments on their own, even if the parent stops working. The court will look at why the job ended and what the parent has done to find new work.
As mentioned above, a family law attorney can help calculate how much you will likely receive in payments or be obligated to pay per the child support guidelines of your state. The attorney will be especially helpful in navigating the issue of the other party’s unemployment.
How Long Does It Take To Get Child Support Payment From an Unemployed Parent?
As far as the court processes to get a child support order, that will vary based on the specifics of each person’s particular case. For instance, if the child support is part of an ongoing divorce matter, child support payments may either be ordered temporarily during the pendency of the case, or reserved for the final hearing.
In the case of unemployment, the court will first need to receive evidence regarding the unemployment. Then the party seeking divorce may request that child support be ordered based on the state guidelines concerning unemployed parties.
Timelines: During a divorce, a temporary child support order can often be put in place within a few weeks after one parent files a motion. Some courts hold a brief hearing where both sides give basic financial details. The judge can then set a temporary amount that stays in place until the final order. Wait times vary by court and county.
The Importance of Hiring a Lawyer: Free online child support calculators can give a rough number, but they often miss the details that matter most. They cannot factor in unemployment, hidden income, or shared custody schedules. A family law attorney can review your full situation and push for a fair order. Without a lawyer, you may end up with payments that are too low or too high.
Do I Need a Lawyer for Help With Getting Child Support From an Unemployed Party?
If you are having any issues related to obtaining, modifying, or enforcing child support from a father or parent that isn’t working, then it is in your best interests to consult an experienced child support lawyer. LegalMatch can assist you in locating an experienced attorney near you and setting up an initial consultation with them.
At the consultation, the child support lawyer can help you determine how to go about establishing and collecting child support based on the other party’s unemployment. A child support attorney in your state can also help you understand your legal rights and options according to your state’s specific family laws. Finally, an attorney will also be able to represent you in court, as needed.
