If you are going through a divorce with children or a residential responsibility action, it is likely you have thought about the questions found below.
1. Can we agree that I not pay any child support? No. In your typical residential responsibility situation, wherein one party has primary physical custody (the majority of the time with the child) and the other party has visitation, there has to be a child support obligation paid by an able-bodied parent. The Supreme Court has reasoned that the child support obligation is owed to the child, not the parent, and therefore, the receiving parent cannot “barter away” the child’s support money. Larson v. Larson, 694 N.W.2d 13.
2. Are the child support recipient’s wages taken into consideration when calculating my child support? Probably not. When calculating child support in North Dakota the obligor’s income is the only income that is typically considered. The only time the other party’s income is considered is when their income is three times that of the obligor — which is rare. The Minnesota guidelines utilize the obligee’s income; however, as a practical matter, the same salary used for the North Dakota child support obligation nets a similar amount of child support in Minnesota. Therefore, although people may “feel better” about getting to include the opposing party’s income, it really doesn’t make much of a difference financially.
3. Can we use the obligor’s (the person paying) spouse’s income when calculating child support? No. As stated above, North Dakota only considers the obligor’s income for purposes of calculating child support. This often comes up when an obligor marries a wealthy person and stops working. Although you may be able to impute some income to that particular obligor, you will not be able to tap into Sugar Daddy’s/Sugar Momma’s money.
4. Does my overtime count towards my child support obligation? Probably. “Overtime wages” are explicitly listed in the child support guidelines as an example of “gross income” for purposes of calculating a person’s child support obligation. This being said, North Dakota Child Support Guidelines Section 75-02-04. 1(4)(a)(4) states that “overtime wages” may not be included if they are “atypical” in nature. As such, there is a chance your lawyer can convince a judge that your overtime wages should not count if they are “atypical” enough.
5. If we share custody of our child equally, why would I have to pay any child support? You have to pay child support even though you are sharing physical custody of the child equally because child support is seen as an income equalizer in North Dakota in this situation. The North Dakota Child Support Guidelines require that a child support obligation be calculated for both parties in an equal custody situation. After an obligation is calculated for both parties, the lesser obligation is subtracted from the greater obligation and the party that had the greater child support obligation then pays the other party the difference between the two obligations. In addition to paying child support, it is common to split many of the other costs associated with the child in an equal custody situation.
6. Is there a limit on what I could have to pay in child support? Yes, kind of. North Dakota Child Support Guidelines section 75-02-04.1-10 lists the amount of child support owed given the obligor’s monthly net income and the number of children the obligor has with a particular obligee. At the very end of this section of the Guidelines, the obligation owed “caps” when the Obligor’s net monthly income becomes $25,000 or more. This means that if you have one child, and make more than $25,000 a month, you may owe the obligee $3,500. For two children you may owe $4,250 and for three children you may owe $5,000. This all being said, pursuant to North Dakota Child Support Guideline 75-02-04.1-09 (2) (b) an obligee can request more than the “max” amount of child support, and receive it if they can prove there is an “increased ability of the obligor” and the “demonstrated needs of the child.”
7. Can I make my ex give me a detailed description of where my child support dollars are going? No. And, I believe most judges would take offense to such a request. The bottom line here is that you could ask for your “list” until you are blue in the face – it won’t matter. There is no law supporting such a request and the Judge will never grant it, in my opinion. You only have something to lose by making this request, and nothing to gain. Don’t do it.
8. What if my child support amount is more than what it actually costs to raise my child? As discussed above, sometimes child support can be in excess of $3,500 a month for one child. It is hard to imagine a scenario wherein a child would need that amount of money each month. North Dakota, however, doesn’t really care. There is no discount available to reduce a child support obligation simply because the child “doesn’t cost that much to raise.”
9. Does the person receiving child support have to pay for all of the child’s expenses? No. It is common for the obligor to also provide the child’s health insurance (although the obligor will get credit for such payments when calculating his or her child support obligation). It is also fairly common to share in some extracurricular expenses and half of the uninsured medical expenses, on top of child support. In North Dakota, there is also a provision within the Guidelines that allows an obligee to request that the obligor chip in, or pay in full, the child’s daycare expenses.
10. When does child support stop?/Can I make my ex pay for my child’s college education? According to North Dakota Century Code Section 14-09-08.2, a person’s child support obligation runs until the child reaches 18 years old and graduates from high school (whichever is latest) or he or she turns 19 years old. Larson v. Larson, 2005 ND 67, 694 N.W.2d 13. The Court cannot order a person to pay for the college tuition expenses of a party’s child. However, if a party agrees to pay college tuition expenses for his or her children, the Court will only be concerned with the interpretation and enforcement of the Judgment. Botner v. Botner, 545 N.W.2d 188, 190 (ND 1996). As such, as long as the Judgment rendered by way of Stipulation states, unambiguously, that one or both parties are responsible for their child’s college education, it should be enforced by the District Court.
If you have a child support question, please contact our Family Law Team at 701-297-2890.
The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to your particular set of facts.
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