questions & answers
Question: Is a disabled person still responsible for arrears even when the court orders that the non custodial parent is unable to work?
Answer: If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. If the reduction in income is voluntary but reasonable, the court shall balance the benefits of that parent’s decisions against the financial detriment, if any, to the child. If there is no available income information, the court shall presume that each parent is capable of earning at least the applicable minimum wage and attribute that amount to the parent. If income is attributed to the parent receiving child support, appropriate childcare expenses may also be attributed. However, the court may decline to attribute income to either parent. Examples of cases in which it may be inappropriate to attribute income include, but are not limited to, the following circumstances:
a. A parent is physically or mentally disabled,
b. A parent is engaged in reasonable career or occupational training to establish basic skills or reasonably calculated to enhance earning capacity,
c. Emotional or physical needs of a natural or adopted child require that parent’s presence in the home, or
d. A parent is incarcerated.
1. When setting or modifying the amount of an arrearage payment, the court shall balance all relevant considerations including the total amount of arrears, the accruing interest, the time it will take the obligor to pay these amounts, the obligee’s financial circumstances, support of other children, and the obligor’s reasonable ability to pay. The court shall not set the payment on arrears at an amount less than the accruing monthly interest unless there are compelling circumstances justifying a lower payment and the court makes a finding explaining why the lower payment is justified.
2. When a current child support obligation terminates, the court shall consider the amount of the monthly child support obligation at the time of termination as evidence of the amount the obligor has the ability to pay monthly towards arrears.
3. The court may modify the amount of the payment on arrears upon a showing of substantial and continuing changed circumstances.
4. In setting or modifying the arrearage payment the court shall consider whether the obligor’s available income after payment of all current child support obligations and payments on arrears meets the Self Support Reserve test. ($903 monthly income.)
Is a disabled person still responsible for arrears even when the court orders that the non custodial parent is unable to work?
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