UNDERSTANDING CHILD SUPPORT
Child Support is governed by statute in Nevada. When one party has primary physical custody of the minor child, then the other party, the non-custodial parent, is obligated to pay the custodial parent a percentage of his/her gross monthly income. This percentage is governed by NRS 125.070 which provides both the percentage and the presumptive “cap” on the final amount to be paid for child support. The following is the pertinent part of the relevant statute:
NRS 125B.070 Amount of payment: Definitions; adjustment of presumptive maximum amount based on change in Consumer Price Index.
1. As used in this section and NRS 125B.080
, unless the context otherwise requires:
(a) "Gross monthly income" means the total amount of income received each month from any source of a person who is not self-employed or the gross income from any source of a self-employed person, after deduction of all legitimate business expenses, but without deduction for personal income taxes, contributions for retirement benefits, contributions to a pension or for any other personal expenses.
(b) "Obligation for support" means the sum certain dollar amount determined according to the following schedule:
(1) For one child, 18 percent;
(2) For two children, 25 percent;
(3) For three children, 29 percent;
(4) For four children, 31 percent; and
(5) For each additional child, an additional 2 percent,
Ê of a parent's gross monthly income, but not more than the presumptive maximum amount per month per child set forth for the parent in subsection 2 for an obligation for support determined pursuant to subparagraphs (1) to (4), inclusive, unless the court sets forth findings of fact as to the basis for a different amount pursuant to subsection 6 of NRS 125B.080
2. For the purposes of paragraph (b) of subsection 1, the presumptive maximum amount per month per child for an obligation for support, as adjusted pursuant to subsection 3, is:
Therefore to determine child support obligations one only needs to look at the non-custodial parent's gross monthly income and apply that income against the corresponding percentage. After multiplying the non-custodial parent's gross monthly income to the proper percentage it is important to cross reference this support obligation with the presumptive max as detailed above. If the presumptive max is less than the product of the GMI and the percentage multiplied together then it is appropriate to use the presumptive max.
Although generally speaking this calculation should give you the proper child support obligation of the obligor spouse it should be noted that the amount of this payment obligation can be adjusted upwards or downwards if certain circumstances exist. NRS 125B.080(9) provides a list of factors which can, but won't necessarily, alter the statutory presumptions of NRS 125.070.
NRS 125B.080(9): Amount of payment: Determination. Except as otherwise provided in NRS 425.450:
9. The court shall consider the following factors when adjusting the amount of support of a child upon specific findings of fact:
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The legal responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother's pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent;
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both parents.
It should be noted that among the nine factors listed above, four of these factors are regularly considered by the courts. These factors include: The cost of healthcare; the cost of child care; the cost of transportation if the custodial parent relocates outside of Nevada with the minor child, and the legal responsibility of the obligor spouse to support others.
However, it should also be noted that the list of factors described above are exceptions to the child support guidelines promulgated through NRS 125B.070 and are not the rule. Please see Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989) for further explanation.
The parties should be aware that the denomination of joint physical custody does not remove the obligation of child support from one spouse to the other. In joint physical custody situations there is a comparison of the parties' child support obligations to one another. In these situations both parents are to multiply their gross monthly income by the proper percentage, depending on the number of children involved. Then, after these calculations take place the lower obligation is subtracted from the higher obligation. The difference is to be paid by the spouse with the higher gross monthly income to the spouse with the lesser gross monthly income in the amount of the difference between the two. See Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998). The statutory cap is then applied after the difference between the higher obligation and the lower obligations is calculated. See
Wesley v. Foster, 119 Nev. 110, 65 P.3d 251 (2003).
Additionally consideration should be given to minimum child support obligations. Under Nevada law, minimum child support obligations are set at $100.00 per month per child. Although occasionally a party can get around this minimum obligation by proving hardship, generally speaking a parent is obligated to pay this statutory minimum even if unemployed. If the parent fails to pay this amount then such obligation will accrue as arrears.
If an obligor parent becomes "willfully unemployed" the obligee parent can attempt to prove such willful underemployment. Although the burden of proof is "clear and convincing evidence" the Courts are often relaxed in applying this standard as the courts have little tolerance for individuals who are voluntarily avoiding work in order to minimize their child support obligations.
Under Nevada Law child support can be reviewed at any time after three years have passed since the most recent child support order issued. Alternatively, a party can move to have child support reviewed at any time if there is a "change in circumstances". A change in circumstances is generally defined as a change in the obligors gross monthly income of at least 20% up or down. Additionally, a custodial parent may seek child support going back four (4) years. See NRS 125B030.
Furthermore, it is important to keep in mind that an individual can only move to modify child support prospectively. Therefore, if an obligor spouse loses his job he should file a motion to modify child support immediately. If the obligor spouse waits he will not be able to get a credit from the courts for the period of time in which he was unemployed. The Court has the authority to modify the support obligation commencing on the date of filing the Motion but not for any time period passing prior to the filing of such motion. See NRS 125B.140(1)(a).
Parties should be aware of the fact that there is a presumption that married parties share joint physical custody in the absence of a court order. Additionally, it is presumed that a single mother has primary physical custody of the minor child or children in the absence of a Court Order to the contrary. See NRS 126.031(2)(a). As a result, the father of a child born out of wedlock is generally has little, if any, rights absent a court order. Therefore it is in a father's best interest to litigate and/or confirm paternity through a Court Order.
Child support "arrears" are obligations for back child support which was not paid but now due and payable by the obligor spouse. Generally speaking an obligation of arrears will be tacked on to any monthly child support obligation which the obligor spouse must pay in the future. Generally, monthly child support arrears will be equivalent to at least one percent of the total arrears obligation. Arrears accrue post judgment interest, and thus payment of less than one percent results in "interest only" payments thereby not actually reducing the total principle payment owed. Per NRS 31A.30(1)(a)(1) the courts have the authority to set arrears payments at a rate of 10% of the current and prospective child support obligation of the obligor.
Generally speaking, the emancipation of a minor child does alleviate the obligor parent from paying future child support; however, it does not alleviate the obligor spouse of the obligation to pay amounts still owed in arrears or interest on those arrears. Therefore those scheduled arrears can continue into the future well past the emancipation of the minor child.
Per NRS 125B.095 a penalty must be added to arrears calculations. That penalty is to be in the amount of 10% of the portion of the outstanding child support arrearages figure. The statute indicates that this is a 10% per annum penalty that must be assessed in each month where it remains unpaid. As a result, in each month in which the balance remains unpaid, a .833% monthly penalty is added (10% divided by 12). The following is the pertinent part of the statute authorizing a penalty for delinquent arrears:
NRS 125B.095 Penalty for delinquent payment of installment of obligation of support.
1. Except as otherwise provided in this section and NRS 125B.012, if an installment of an obligation to pay support for a child which arises from the judgment of a court becomes delinquent in the amount owed for 1 month's support, a penalty must be added by operation of this section to the amount of the installment. This penalty must be included in a computation of arrearages by a court of this State and may be so included in a judicial or administrative proceeding of another state. A penalty must not be added to the amount of the installment pursuant to this subsection if the court finds that the employer of the responsible parent or the district attorney or other public agency in this State that enforces an obligation to pay support for a child caused the payment to be delinquent.
2. The amount of the penalty is 10 percent per annum, or portion thereof, that the installment remains unpaid. Each district attorney or other public agency in this State undertaking to enforce an obligation to pay support for a child shall enforce the provisions of this section.
NRS 125B.140(2)(C)(1) also gives the courts discretion as to whether to award interest on arrears. This interest rate is set in accordance with the prime rate charged by the largest bank in Nevada on the most recent previous January or July plus 2%. Please visit the website http://www.fid.state.nv.us/prime/primeinterestrate.pdf which provides information relating to this "statutory interest" for any six month period in the last 30 years.
Both interest and penalties are compounded monthly thereby significantly increasing the total arrears obligation over time. It should be noted the courts have discretion as to whether or not award statutory interest on accumulated and unpaid arrears. Courts frequently do however award statutory interest on accumulated and unpaid arrears in the absence of a proof of "hardship" on the part of the obligor parent.
In order for the court to retain jurisdiction and hear a motion to reduce child support arrears the moving party must provide the court with a "Schedule of Arrears". Furthermore, the party moving to reduce arrears to judgment must provide the court with a copy of the Court Order which sets forth any child support obligations.
A party can seek to have the wages of the obligor parent assigned at any time after an installment of the child support obligation becomes more than 30 days past due. An individual owed child support can contact the District Attorney, child Support Enforcement Division, for the purpose of having the district Attorney open a child support case against the obligor parent. However the District Attorney is so busy in the state of Nevada that it frequently takes as long as one year before the District Attorney's Office can begin working on the case.
Alternatively, a wage assignment can be obtained by preparing several documents. These documents include the actual wage assignment, a writ of execution, instructions to the constable, and a notice of execution after judgment. There must be just cause to enforce a wage assignment.