The legal information in this publication is designed to give you a basic understanding of the laws that govern the setting of child support in Washington State by reviewing key parts of the Washington State Child Support Schedule (a copy of the schedule and its instructions are attached to this publication); relevant statutes (RCWs) and court cases are footnoted. This information is presented in the form of frequently asked questions, followed by answers to those questions. Because the specific facts of your case may require a different legal analysis and result in different legal conclusions, consultation with a lawyer is highly recommended. If you are low-income, you may call CLEAR at 1-888-201-1014.
For related publications on child support, please see our web site, www.washingtonlawhelp.org, or call CLEAR.
"Child Support" is money paid by a parent to a party taking care of the children (usually, the other parent) to help support the children. A parent has a legal duty to help support his or her children. It is important to know that the court's main concern in setting child support is to make sure that your children have enough money to meet their needs.[1] Support is meant to pay not only for clothes and food, but to give the children a place to live (rent/mortgage and utilities) and have adequate daycare and medical care. If the parents do not have enough money to meet the children's needs, the court also takes into account parents' ability to pay.
A stepparent also has a legal duty to help support his or her stepchildren until a divorce from the child's parent is final or until there is a court order relieving the stepparent of this obligation.[2]
The parent usually must pay child support monthly. The amount is determined by working through the Washington State Support Schedule. The Schedule applies to all cases in which child support is ordered, even if the child now lives in another state.[3] The Schedule includes definitions, standards, instructions, and an economic table.
It is a good idea to read through the Schedule so that you can understand all of the factors that the court will take into account when setting support. The Schedule works somewhat like an income tax table - the court figures out each parent's income, adds it together, and finds the amount of support on the Schedule that applies to the number and ages of children that you have. This amount is called the "basic support obligation." As discussed later in this publication, there are circumstances under which the court will order the responsible (obligor) parent to pay less or more than the basic support obligation.
Washington started using this schedule to ensure that children get enough support to meet their needs and that parents across the state who make similar amounts of money pay or receive similar amounts of support. The parent who is caring for the child(ren) the majority of the time is considered to be meeting her/his basic support obligation. The other parent makes a child support "transfer," or payment, to the caretaker.
Use Our Glossary: Important words that you may need to know are defined in Section III at the end of the Frequently Asked Questions and Answers section of this publication.
II. Frequently Asked Questions and Answers
1. What is gross income?
The definition of "income" that must be included in a child support calculation is very broad. You must tell the court about all of your income and other financial resources (such as investments or savings) by listing them on the child support worksheets.[4]
"Gross" income means your total income, before any income tax, FICA, or other deductions are taken out. Look at the Washington State Child Support Schedule instructions for complete information about what you must include in your gross income on the child support worksheets. RCW 26.19.071(3) has a long list of things, such as overtime pay and income from second jobs that are included in your gross income when you calculate child support.
2. What may I deduct from my income?
Your child support obligation is set based upon your net income. "Net income" means the income that you have left after you take out (deduct) amounts that you must pay for taxes and other expenses that are required by law.
There are very few deductions that you are allowed to take on the child support worksheets. You may deduct federal income tax, Social Security and Medicare (sometimes seen as FICA on a paystub), and state industrial insurance (L&I). You may also deduct mandatory union dues, mandatory pension contributions (in certain circumstances), and up to $2,000 per year of voluntary pension contributions. If you are self-employed, you may deduct normal business expenses and self-employment taxes; however, you must be able to document any business expenses that are questioned by the other parent or the court. [5]
Even if you have other amounts taken from your paycheck (for example, for medical insurance, uniforms, parking) you may not deduct those from your income on the child support worksheet.
3. Will my spouse/partner's income be used to calculate my support?
No and yes. The court will use only the income and financial resources of the parents of the children for whom support is being determined in calculating the basic support obligation.[6] (In other words, when you fill out the child support worksheets, you include only your income and the other parent's income in the basic calculation). However, the court looks at both parents' entire financial situations when making decisions about support. Thus, the income of a new live-in partner or spouse and other adults and children in each parent's household must be disclosed to the court, and the court may consider this information when setting support.[7] At the same time, the court will also consider other children that you have in your household, or other children supported by your spouse/partner.
☼ Your spouse's income will be counted if you are asking the court to deviate from the schedule. Example: If you ask the court to deviate from the schedule because your stepchildren live with you, then the court will count your current spouse's income.
4. What happens if I don't give the court proof of my income?
If the court does not have any information about your income, the court may impute income to you. Generally you are required to give the court at least the last two years of your federal income tax returns and your current pay stubs if you are employed in order to prove your income.[8] Usually it is better to give the court as much proof as you can about your income, your earning ability, and your financial situation to help the court make decisions about setting support.
☼ If you did not file a federal income tax return, or your employer does not give you pay stubs, you may still file a modification or adjustment. You will need to explain why you do not have the tax returns, or the paystubs, and you will need to give the court other proof of your income, such as W2 or 1099 forms, bank statements, or a declaration from your employer.
If either parent does not give the court enough information about his/her income and finances, or a parent voluntarily stops working full time, that parent may end up with a result that she/he might not expect or want. If you are the parent asking for a modification or adjustment, the court may refuse to change your child support if you do not give proof of your income.[9]
5. How does the court impute income?
When the court imputes income to you, the court will decide upon an income for you and use that income to set your support obligation. The court should take into account things that may affect your earning ability. This includes your education, your health, your age, your past earnings history, and may include other important factors that affect your ability to work full time, such as whether you can speak, read, and write English well, or whether your employment is seasonal work.[10] If the court does not have any information about your earning ability, the court will use the median income for a person of your age and gender in the United States.[11] There is a table in the Washington State Child Support Schedule that shows the median income. For many people, that income is actually higher than the amount they are able to earn. It is therefore usually better to give the court information about your income and your earning ability than to risk having income imputed to you.
6. When will the court impute income?
Whether the court imputes income to you will depend upon whether the court decides that you are voluntarily unemployed or underemployed. If you are not working and are not receiving public assistance, you should show the court why you are not working. In most cases, the court will assume you could be working full time unless you prove otherwise.
A. When is a court likely not to impute income because the parent is unemployable?
If you are disabled. If you are disabled, you should be prepared with declarations from your doctor, psychologist, therapist, or other professional who can tell the court why you cannot work and how long you will not be able to work. If you are receiving SSI or SSDI[12] or another disability benefit (such as GAU),[13] this is strong evidence that you are unemployable. You will need to show evidence that you receive these benefits.
B. When is a court likely to find that a parent is voluntarily unemployed?
If you do not prove that you have tried to find a job. Even if you were laid off from your job, you will need to show the court that you have tried to look for other work. It is best to show the court proof, such as your job search records from the unemployment office, or copies of any letters that you get turning you down for jobs.
If you are going to school. In most cases, if you are not working because you are going to school, the court will consider you voluntarily unemployed and will impute income to you. This is because the court assumes that you should work to support your children if you can. However, there may be some situations in which you may be able to show the court that you will not be able to work unless you are permitted to go to school. Some examples might include a school program you entered through WorkFirst, trying to finish your high school degree, or taking English as a Second Language (ESL).
If you are staying home to care for children. Staying home to care for children is voluntary unemployment.[14] Therefore, if you have made the choice to stay home to care for your children, the court may impute income to you. However, there may be cases in which the court should not consider staying home as "voluntary," such as when one of your children has special needs that require more care.
If the court imputes income to you, the court should take into account any childcare costs and other work costs that you would have if you were working full time.[15] For example, you should ask the court to subtract from your imputed income the amount of daycare you would have to pay if you went to work. You will need to give the court some statements from local daycares about what it would cost to care for your children.
C. When is a court likely to find a parent voluntarily underemployed?
There are some very limited situations in which the court might impute income to you because the court thinks you are voluntarily earning less or working less than you are able to.
If you are working part time. If you are not working full time (usually defined as 40 hours per week, but can be fewer if, for example, your employer considers a 35-hour week full time), the court can impute income to you.[16] Usually, the court will take your part-time income and calculate it as if you were working full-time hours, and then impute that income to you.
The court should not impute income to you if you cannot work full time because you are following a court-ordered plan to get your children back from foster care or CPS (called a reunification plan).[17] Also, the court should take into account any expenses (such as daycare) that you would have if you were working full time.[18]
If you are earning less than you have before. If you are working full time now, the court should not impute income to you unless it is proven that you are voluntarily earning less for the purpose of trying to reduce your child support.[19] If you are earning less for other reasons, such as changing careers, or you are not earning the maximum amount that someone in your field could earn, the court should set support based on your actual income.[20]
7. What if I am receiving public assistance?
Money from public assistance (GAU, TANF, food stamps and SSI) does not count as income when calculating child support.[21] You must list this type of income on the worksheets at line 18e, but it does not count as income in determining your support amount. In most cases, if a parent is receiving public assistance, that parent should ask the court to set his/her support obligation at $0.
In order to receive Temporary Assistance to Needy Families (TANF), most parents also need to participate in WorkFirst. DSHS will require those parents to work if the parent is able to do so.[22] (There are exceptions to WorkFirst that are explained in other packets available from the Northwest Justice Project.) Therefore, if you are receiving TANF, but you are not being required to work, you should tell the court that you cannot work right now.[23] If possible, ask your DSHS caseworker for a declaration[24] saying why you are not being required to work.
8. What if I am in jail?
If you are incarcerated and working in a correctional industry work program, at least fifteen percent of your gross gratuities (i.e., wages) will be collected for payment of your child support obligation.[25] Your child support obligation can also be based on any other money, assets, or property you may own while incarcerated.[26]
9. What if I cannot afford the support amount in the schedule?
As a general rule, the court must order the paying parent to pay the "standard calculation" under the economic table of the child support schedule.[27] However, there are certain circumstances in which the court will set the child support at an amount less than the standard calculation. In addition, the court may order an amount of support that is less or greater than the amount set in the schedule, based upon special circumstances in the financial situation of either parent or the children. These special circumstances are known as deviations.
A. In what circumstances is a court likely to set support lower than the standard calculation?
There are limits on how much support you should be asked to pay if your income is very low. In some cases, the court must order a support amount that is less than the standard support calculation. The child support worksheets will help you determine when that situation applies to you.
If the standard calculation would reduce the parent's income below the needs standard.
If paying the standard calculation support amount would leave a parent with income below the one-person needs standard, the court should reduce that parent's monthly payment for current support. However, the court may order a parent to pay $25 per month per child even if this payment would reduce the parent's net income below the needs standard.[28] The court may also order a deviation (explained more fully below). The needs standard is an amount set by the state each year that is the minimum a person in Washington should have to meet their basic needs.[29] The needs standard is available through a link at the Washington Law Help web site at www.washingtonlawhelp.org. As of the writing of this packet, it is $1,016 per month for a household of one person with a housing payment obligation. Thus, for example, if the person who owes support has net income of $1,100 per month, his/her obligation will be $84 per month ($1,100 minus $1,016).
If the Combined Income of the parents is less than $600.
If the combined income of both parents is under $600, the child support amount will probably be set at $25 per month per child.[30] Support may be set at the $25 child support payment per child per month even if the parent paying support is very low-income. The court will assume that all parents can pay this amount.
☼ If you cannot afford the $25 per month per child payment, the court may set child support at a lower amount if you prove to the court that the $25 per month per child is unjust or inappropriate in your case.[31] The court must consider the total circumstances of both households - in other words, the court needs to consider how much the children's household needs the $25 per child versus how much it would burden the paying parent's household to pay it.[32] In some cases, such as when the parent is in prison and has no other assets, or receives SSI, child support may be set at $0.
If child support amount would exceed 45% of the parent's after tax income.
The law also says that the child support payment should not be set at more than 45% of the paying parent's net income. However, in families with children with daycare expenses, special medical, educational or psychological needs, larger families, or cases in which the paying parent has substantial wealth, the court can order support that is more than 45% of the parent's net income.[33]
If the combined net income of the parents is above $5,000.
There are also legal limits on using the standard calculation in the Schedule when the combined net monthly income of both parents is over $5,000.[34] Because parents with income in that range could typically afford an attorney to assist with child support, this packet does not address those situations.
B. When is the court likely to order deviations from the standard calculation?
The court may decide not to order the "standard calculation" when the court finds a good reason to order a different amount. Ordering an amount different from the standard calculation is called ordering a "deviation."
When deciding whether to grant a deviation, the court must consider all of the income and financial resources of all of the adults in each parent's household.[35] If you are asking for a deviation, the court will look not only at your financial needs, but how reducing the amount of support would affect the other parent's household.
If you are asking for a deviation from the standard support amount, it is your job to prove to the court that the court should give you a deviation from the standard support calculation. The court may grant a deviation in any situation the court finds is appropriate. The Child Support Schedule describes many of the situations where the court can grant a deviation. Only some of them are listed below.
If there are other children to support.
The court may grant a deviation to either parent if that parent must support other children.[36] In order to get a deviation for other children, the parent must prove that the child either lives with him/her, or the parent is required to and actually pays support for the other child. The court will also take into account the income of your spouse/partner, any child support or benefits that the other children receive, and the "total circumstances of both households." The blended and whole family formulas are two tools the court sometimes uses in these cases; however, there is no set formula that is accepted by the courts.
If there is split custody between the parents or the parent paying support has an unusually large share of residential time with the child(ren).
The court may adjust the monthly support amount in cases in which the parents split custody, such as those in which one of the children lives with one parent, and the other child lives with the other parent. One formula for determining the amount of support in that situation is in the court case In re Marriage of Arvey.[37] However, the court may deny the deviation if reducing the paying parent's support payment would result in the receiving parent's household having much less money.[38]
The court can also reduce the paying parent's support if the child or children spend a substantial amount of time with that parent and the child is not receiving public assistance. The court should not grant a deviation if it would leave the primary residential parent's household without enough money to meet the children's basic needs. [39] These deviations should be limited to situations in which the paying parent has a great deal more than every other weekend and a mid-week visit with the children. The parent asking for this deviation should also show how much more the parent spends on the child due to the substantial amount of time the child is with that parent, as well as any savings to the other parent.
If the children have special needs.
If one or more of the children is disabled or has special educational, psychological or medical needs that are not covered by insurance, the court can require the paying parent to contribute to those costs through an increase in the monthly support amount.[40] The parent who is asking for these expenses will need to provide letters from doctors, bills and receipts to show why the child needs this, and to prove how much the court should order.
If the parent paying support has significant non-recurring income.
Income that is not guaranteed (such as bonuses and overtime) must be included in your gross income when your child support is calculated. However, the court may order less than the standard calculation if the court believes that you are not likely to make as much of that income in the future.[41] You should be prepared to show that the income will not be available by using declarations from your employer or others.
Other deviations.
The court may increase or reduce support for a number of other reasons, like if one of the parents is very wealthy, or if one parent pays costs for court-ordered services to reunify with the children. You must list any special circumstances in the worksheets.
10. What if the basic child support amount does not cover all the children's expenses?
In addition to the basic child support obligation, the court may order the parents to share expenses for the children for daycare, education, medical and mental health care, and long-distance transportation.[42] Usually, the court will order each parent to pay a share of those expenses, which is calculated using the child support worksheets. To find out your proportionate share of daycare, for example, you would multiply the total amount of daycare per month by the percentage under your column on line 6 of the child support worksheets.
The Order of Child Support automatically requires the parents to share the cost of uninsured medical expenses. The parent who receives support is responsible for paying up to 5% of the basic support obligation (line 7 of the worksheets) for uninsured medical costs. If costs exceed 5% of the basic support amount, then the parents split the overage according to line 6 on the child support worksheets.
☼ Orthodontic care (such as braces) and some special psychological care (such as special classes or activities that the child goes to for help with an emotional problem) are not necessarily included in the definition of uninsured medical expenses. If you know that your child will have these expenses, it is a good idea to include them specifically in your child support order. For example, you might want to add a paragraph to the order that says "The paying parent will pay ___% of the child's orthodontic care directly to the orthodontist."
11. What If the child needs support after high school (such as for college)?
The court may order support for the child for college or vocational school, or if the child will still be dependent on the parents after high school graduation (such as can happen if the child is disabled). This is called post-secondary support. In deciding whether to order post-secondary support, the court will decide whether the child is really dependent on the parents, and will also consider the following:
Age of the child; the child's needs; the expectations of the parties for their children when the parents were together; the child's prospects, desires, aptitudes, abilities or disabilities; the nature of the post-secondary education sought; and the parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been given if the parents had stayed together.[43]
BUT NOTE: Most orders of child support do not provide for post-secondary support. Instead, they often state that child support should continue only until the child turns 18 or until the child graduates from high school (as long as that is before the child is 19). If you think your child will need post-secondary support, and your Order of Child Support does notspecifically order it, you must file a petition for modification requesting that post-secondary support be set before regular child support payments would end under your order.[44] To do so, you may want to review our publications on changing your child support order and/or consult with an attorney (if you are low income, you should call CLEAR at 1-888-201-1014).
12. What if the child is not living with either parent?
If the child will not be living with either parent, each parent must pay her/his proportional share of the "basic support obligation" to the person taking care of the child (or to the state, if the child is receiving public assistance or is in foster care).
III. Glossary: Words You May Need to Know
Affidavit: A written statement made under oath and notarized by a Notary Public. Affidavits are no longer required in Washington; instead, the courts use Declarations, which do not require notarization.
Bailiff: A member of the judge or commissioner's staff who is in charge of courtroom procedure and security. The bailiff may sometimes be called the "clerk."
Calendar: The court's schedule of cases to be heard, also called a Docket.
Caption: The heading of each legal document, which contains the name of the court, the names of the parties, the case number, and the name of the document itself.
Certified Copy: A copy of a paper from a court file made by the court clerk, which has an official stamp on it. Usually, you must pay a fee for a certified copy.
Clerk of the Court: An officer of the court who handles clerical matters like keeping records, entering judgments and providing certified copies. Usually, there is one head clerk, but many people who work in the Clerk's Office are also clerks. Also, a judge or commissioner's assistance can be called clerks.
Commissioner/Court Commissioner: Similar to a judge, but only makes decisions relating to a particular subject matter. Many counties have family law commissioners who decide cases only about family law.
Continuance: Delaying your court hearing to a later date.
Custody: The parent or person with whom the child lives most of the time has "custody" of the child. Washington uses the term "primary residential care" rather than "custody" in cases in which the children live with a parent.
DCS/ Division of Child Support: The state office (part of DSHS) that establishes, enforces and sometimes changes child support obligations in many cases. DCS used to be called CSD, OSE and SED.
Declaration: A written statement made to the court under oath.
Default Order: An order that can be obtained if the responding person does not respond on time. When a default order is entered, the person who filed the petition or motion usually gets everything that was asked for in the petition or motion.
Dissolution: The legal word for divorce.
Enter (an Order): A judge or commissioner enters an order when he or she signs the order and the order is filed with the Court Clerk.
Ex Parte: Going before the court without notifying the other party. Some courts have special departments where motions without notice to the other party are heard, which are called ex parte departments.
File/Filing: Giving court papers to the Court Clerk's office as part of a legal case. Court papers that are filed become part of the official records on your court case. You must file court papers to start (or respond to) a legal case or motion.
Impute/Imputing Income: Estimating or making up an income for a parent when that parent's income is not known. When imputing income to a parent, you cannot use just any income that you think of - you must base the income on the person's past income, age, education, and other factors. If you do not have any information, you may use the Approximate Median Net Monthly Income table in the child support schedule.
Jurisdiction: The court's authority to make decisions regarding certain people and issues. If a court does not have jurisdiction, it does not have the power to make orders.
Motion: A request to the judge (or court commissioner) to enter or make a decision about an issue (or issues) in a legal case. Usually, one party in a legal case files a motion with the court and the other party has a chance to give the court a response. The judge or commissioner makes a written decision, called an order that both parties must follow.
Motion Docket: The court's schedule of motions to be heard.
Note/Notice of Hearing/Note for Calendar Motion: A written request to the clerk to schedule your case for hearing
Order: A judge or court commissioner's decision, usually in writing. In some cases, each party will give the judge a proposed (or sample) order, and the judge will make changes to and sign the order that the judge decides is the right one.
Parentage: The legal name for a paternity case.
Petitioner: The person who first files a legal case. The petitioner in the caption of a form does not change even when motions are filed later by the other party.
Pro Se: Acting without aid of an attorney; representing yourself in court.
Primary Residential Care: The parent (or other person) with whom the child lives most of the time has "primary residential care" of the child. Also called "custody."
RCW: Revised Code of Washington is the law that applies to court cases in Washington State. The numbers following "RCW" tell you the title, chapter, and section of the law that applies.
Respondent: The person against whom a legal case was originally filed. The respondent in the caption of a form does not change even when motions are filed later by that party.
Served/Service/Serving: When one party gives another legal papers, the other party has been served with legal papers. There are rules about the ways to correctly serve a party, which are in the do-it-yourself packets. Venue: The county where the case should be filed.
WAC: The Washington Administrative Code is the law that applies to administrative and DSHS proceedings in Washington. The numbers following "WAC" tell you the title, chapter, and section of the law that applies.
Footnotes:
In re Marriage of Mattson, 95 Wn. App. 592, 599-600, 976 P.2d 157 (1999).
If you receive SSI or SSD, you should tell the court that the Social Security Administration has decided that you are unable to "do any substantial gainful activity" because of a "medically determinable physical or mental impairment which is expected to result in death or can be expected to last for a continuous period of not less than 12 months." 20 CFR 416.905(a); 20 CFR 404.1505(a). The Social Security disability standard is high and difficult to meet; to qualify for SSDI or SSI benefits, a person must show through objective evidence a "severe impairment" that renders the person "unable to do previous work or any other substantial gainful activity that exists in the national economy." Id. In determining whether a person meets the Social Security disability standard, the SSA considers that person's "residual functional capacity" as well as "age, education and work experience." Id.
If you receive General Assistance Unemployable (GAU), you should tell the court that DSHS has decided that you are "unable to secure and perform gainful employment due to a physical, emotional or mental condition expected to last at least 90 days." RCW 74.04.005(6)(a)(ii)(B). The GAU eligibility determination is based upon "clear, objective medical documentation" by a medical professional. WAC 388-448-0020 and 388-448-0030.
In re Marriage of Pollard, 99 Wn. App. 48, 991 P.2d 1201 (2000); In re Marriage of Brockopp, 78 Wn. App. 441 (1995).
In re Shellenberger, 80 Wn. App. 71, 81, 906 P.2d 968 (1995).
In re Marriage of Wright, 78 Wn. App. 230, 896 P.2d 735 (1995).
You may want to show the court a copy of WAC 388-310-0400.
Declarations are written, sworn statements that can be filed with the court. Our do-it-yourself packets have declarations forms and explain how to write a declaration.
RCW 72.09.111(1). This does not apply if you are in a Class I work program.
In re Marriage of Gillespie, 77 Wn. App. 342, 890 P.2d 1083 (1994)
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