The prospect of a divorce is likely the most important and difficult decision you will ever make, especially if there are children involved. The previous article examined spousal support obligations arising from divorce (also called “alimony”). This month’s focus will address the child support obligations of each parent and explain current law regarding when child support is appropriate, who has to pay, and how the court determines the amount of support.
For a Nevada court to order the payment of child support, it must have jurisdiction over the minor child(ren). Further, to achieve jurisdiction, Nevada must be considered the home state of the child(ren).
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) considers the state in which the child has resided for the previous six (6) months to be the child(ren)’s home state. As such, for a Nevada court to have the jurisdiction required to order child support, the child(ren) must have resided in Nevada for the previous six (6) months. This requirement is separate and distinct from the requirement that a person seeking a divorce have at least six (6) weeks of residency and physical presence within the State.
NRS 125.510(9) states that child support shall continue until the child is 18 years of age and not enrolled in high school, or if the child is still enrolled in high school, until the child is 19 years of age. There is an exception to this rule. If a child is handicapped/disabled/special needs, the parents will be responsible for supporting the child beyond the age of majority, until the child is no longer handicapped/disabled/special needs, or is self-sufficient, so long as the condition occurred prior to the age of majority.
NRS 125B.070(1) sets forth a formula to determine the amount of child support. Child support is based upon the custody arrangement, number of children, and the parents’ gross monthly income. The child support obligation under a primary physical custody situation occurs where one parent exercises more than 60% custody over the minor child/ren. The non-primary physical custodian (“obligor” or person obligated to pay support) is required to pay based upon their gross monthly income. Gross monthly income is all income from any source.
The percentage of an obligor’s child support will be calculated on a percentage of the gross monthly income, and the percentage is dependent on the number of minor children involved. The current rates are as follows: 18% for one child, 25% for two children, 29% for three children, 31% for four children, and an additional 2% for each additional child the parties may have.
This percentage of the parent’s gross monthly income is subject to a presumptive maximum cap which sets forth categories of income and the maximum a parent can be required to pay per month and per child. The presumptive maximum is adjusted on a yearly basis for inflation based on the Consumer Price Index. In any event, the minimum amount of child support a party may pay is $100.00 per month, per child, unless a court makes a written finding that the party is unable to afford that minimal amount. NRS 125B.080(4).
If the parties share joint physical custody of the children, the case of Wright v. Osburn, (1998) establishes a formula for child support involving the gross income of each parent. The formula developed in that case takes into consideration that both parents are equally sharing the children’s expenses as they each care for the children in approximately the same amount of time (does not have to be exactly equal or 50%-50%, but can be up to 60%-40%).
The court will take the appropriate percentage of each parent’s gross monthly income based on the number of children they have. The court will then subtract the difference from the two incomes and the parent with a greater income will have to pay the parent with a lesser income the difference of the calculated percentage of gross income.
As an example, suppose parent A and parent B have two children and are getting a divorce where they are awarded joint physical custody. The appropriate percentage of their gross monthly income to be taken into account is 25%. Parent A has a gross monthly income of $4,000.00 per month and Parent B has a gross monthly income of $1,000.00 per month.
The court will take 25% of each parent’s gross monthly income resulting in $1,000.00 and $250.00 respectively. The court will then subtract the difference, $1,000.00 less $250.00 resulting in a difference of $750.00. Parent A will be required to pay parent B child support in the amount of $750.00 per month, the difference of 25% of their respective incomes. This payment is subject to the presumptive maximum amount per child based on parent A’s gross monthly income.
Although the court sets child support at a certain amount, it does not have to remain constant for the duration of the obligation. Child support can be reviewed at least once every three years in accordance with NRS 125B.145(1). Additionally, child support may be changed based on a change in circumstance of either party (Rivero v. Rivero).
There are many different occurrences which would justify a change in circumstances. Generally, these changes in circumstances which could potentially affect the calculation of support relate to an addition or reduction of gross monthly income such as getting a promotion or losing one’s job.
When faced with a divorce, child support is a significant issue that must be addressed. It is important to know your rights and obligations when preparing for the divorce process. It can be intimidating to face the prospect alone. Experienced and knowledgeable legal counsel can help ease the burden and ensure that your rights are protected.
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