Child Support in Mississippi
This Guide is written to explain how child support is awarded. Read here if you want to know about how child support is modified. Read our contempt of court post where you can learn more about other actions to enforce child support (and other court orders).
It’s helpful to think of child support as two different financial obligations:
Cash payments (what we usually think of as child support) and
Payment of designated expenses (such as health insurance premiums).
The first obligation, cash payments, is almost always calculated using a formula, which we will discuss below. There is no formula for the second obligation, payment of expenses, so it is far more difficult to predict what a judge will order.
CASH PAYMENTS
The formula for cash payments is based on the number of children being supported. The formula is keyed to the payor’s adjusted gross income, which generally means the same thing as after-tax income.
1 child, 14 percent of the payor’s after-tax income
2 children, 20 percent of the payor’s after-tax income
3 children, 22 percent of the payor’s after-tax income
4 or more children, 24 percent of the payor’s after-tax income
So if the absent parent’s monthly after-tax income is $1,000, and there is one child, the child support will be 14 percent of $1,000 — $140/month.
AFTER-TAX INCOME
The law that lists the percentages that we’ve listed above does not use the term “after-tax income.” Instead, it refers to “adjusted gross income” (AGI). In most cases, and for most people, AGI and after-tax income mean the same thing. But not always.
Here’s how judges calculate AGI. First, add up all of the income from these sources:
Wages
Salary
Self-employment income
Commissions
Income from investments, including interest and dividends
Worker’s compensation, disability, and unemployment benefits
Retirement payments
Do not include the income of anyone who lives with the absent parent, such as his new wife.
OVERTIME
Overtime is a tricky issue — not because there’s any question about whether it should be included in AGI (it is), but rather, in what amount? Here are the arguments that are made every time the issue arises. The absent parent will point out that overtime is not guaranteed, and it might go away tomorrow. So it’s not fair to base child support on income that might not be there tomorrow.
The custodial parent will answer that, yes, overtime is not guaranteed. But neither is your job, or your income, or anything else in the future. When the payor has a substantial history of earning overtime, it is just as unfair to base child support on no overtime as it is to base it on overtime that might or might not be canceled in the future.
If the payor can convince the judge that he only received overtime to complete a one-time project and that he’s not going to get any overtime in the foreseeable future, the judge might leave overtime out of the AGI calculation. Otherwise, judges often include in AGI the payor’s average overtime over the most recent year or two. That way, periods where the payor earned zero overtime are averaged in with the periods when the payor did earn overtime.
DEDUCTIONS FROM AFTER-TAX INCOME
Once the judge has added up all of the income from the different sources discussed above, the following must be deducted:
Federal taxes
State taxes
Social Security and Medicare taxes (FICA)
Involuntary retirement and disability withholding (this is unusual, except for government and employees with a pension)
Union dues
Child support for other children, if the support is court-ordered
Also, the judge is allowed, but not required, to deduct whatever he deems to be a reasonable amount for the support of children living with the absent parent.
What often trips people up are the items that you do not get to deduct from AGI, even though it is deducted from your paycheck, such as:
Retirement contributions that aren’t mandatory (such as for your 401(k) or IRA)
Health insurance and other insurance premiums
Cafeteria benefit plan payments
Health savings account contributions
Loan repayments
“Extra” withholding for taxes, in addition to what’s mandatory (to yield a larger refund)
“I’m paying the third-highest child support award in the world. And the other two guys are Saudi Arabian sheiks.”
WHEN DO THE CHILD SUPPORT GUIDELINES NOT APPLY
Once the judge decides the absent parent’s AGI, it is a simple matter to apply the child support guidelines listed above. But there are a few tics in the process; the guidelines aren’t automatic. The judge is supposed to use the guidelines, unless he has a good reason not to. There are a number of reasons why the judge might not apply the guidelines.
The absent parent’s AGI is more than $100,000/year. We will talk about setting child support in high-income situations later on
The absent parent is paying a significant amount toward the child’s expenses
The absent parent is spending a great deal of time with the child, to the extent that the custodial parent’s expenses for the child are less than what they would otherwise be
The child has independent income
This is just a partial list of reasons why the judge might award an amount of child support different than what would be required by the percentage guidelines.
EARNING CAPACITY
When calculating child support, the judge will not only consider the absent parent’s actual earnings, but also his earning capacity. It’s not unusual for a biological father who has recently been served with a lawsuit for child support to quit his job and take another job that pays far less, so that child support will be calculated using the lower AGI. Of course, the father will claim that it is not his fault that he makes less money now — he was fired or “downsized,” although really he may be just trying to game the system.
Similarly, self-employed fathers will suddenly have a “down year” that just happens to coincide with being sued for child support/alimony. Of course, people do get fired, and self-employed people do have down years, so the judge has to decide whether the person has the ability to earn at the higher wage/salary, or is the new, lower AGI the best he can do. This is a decision as to the father’s earning capacity. If the judge concludes that the father’s earning capacity is what he used to earn, then child support will be calculated using this AGI, rather than the lower AGI that the father has at the time of trial.
Occasionally a father will attempt the strategy of giving the chancellor no information whatsoever about his income, the theory being that if his AGI can’t be proved, child support can’t be awarded. It is a risky strategy, to say the least, since in such cases the appellate courts give the chancellor wide leeway in making assumptions about the father’s income — inasmuch as he declined to prove what it actually was. The same result is reached when the father produces so little information at trial that the chancellor has to grasp at whatever evidentiary straws are available to make an educated guess as to the father’s AGI. If the chancellor perceives that the father is playing games with the court, the father should not be surprised when the chancellor sets child support with the assumption in mind that the father must be making a lot of money if he won’t be forthcoming about his income.
DURATION OF CHILD SUPPORT
A parent is required to pay child support until the child is emancipated. Mississippi is atypical in that under most circumstances, a child is not emancipated until his 21st birthday. Most states hold that a child is emancipated on his 18th or 19th birthday, or until he graduates from high school. The long duration of child support in Mississippi is offset to some extent by the low percentages of child support as discussed above.
PERCENTAGES vs. DOLLAR AMOUNTS
Awarding a specific dollar amount for child support is the best way to go when the father’s income is stable. A stable monthly obligation enables mother and father to set a regular budget.
But sometimes, the father’s income varies wildly. He might work on commission, or seasonally, or have irregular layoffs, or receive large bonuses, or be self-employed. In those cases, depending on what the father earned in a particular month, a specific dollar obligation can be far too high or too low in comparison to the child support guidelines.
The temptation in such cases is to set child support not as a specific dollar amount but rather as a percentage of the father’s income. When his income is high, the mother receives a lot of child support; when his income is low, the mother receives little child support.
Chancellors are reluctant to order child support as a percentage of income, not least because the father can’t be held in contempt of court later when he failed to pay. We explain why in our Ultimate Guide to Contempt.
Rather than set child support as a percentage, the usual practice is to build into the calculation of the father’s AGI an average income, which takes into account both the highs and the lows. The father has to understand that when his income is higher than usual, he has to save up to pay child support during those months when his income is lower than usual.
NO SUPPORT/NO FORGIVENESS/NO AUTOMATIC REDUCTION
Chancellors are loathe to enter a final judgment of divorce or paternity without requiring the father to pay some amount of child support. The three occasions when a no child support order is likely to be approved are when (1) both parents are going to more or less equally share the duties of raising the child; (2) the father is going to pay substantial visitation costs (e.g., the father lives on the West Coast and is paying the airfare to fly the children from Mississippi to his home and back again); or (3) the child is nearly emancipated, particularly if the father is contributing the child’s college expenses.
This becomes a bone of contention because many fathers require a “no child support” provision to settle the case, and many mothers will tell the chancellor that not only do they not need the father’s money, but they don’t even want it.
Even if the father and mother both agree to “no child support,” many judges simply will not approve such an order. You should plan on child support being a non-negotiable point with the chancellor, or else having a very good reason why it should be waived in your case.
Once child support has been ordered, it cannot be forgiven. In a landmark case that we litigated, the mother not only agreed to forgive the father’s past/present/future child support, but she signed an agreed order to that effect, which the chancellor signed. Nevertheless, years later when the mother renounced that agreement and demanded payment of the “forgiven” child support, the Supreme Court said that the forgiveness agreement, and even the agreed order of forgiveness, had to be set aside as a nullity. Simply stated, a mother cannot forgive unpaid child support.
This rule is so strong that, even if the child goes to live with the father, his obligation to pay child support continues unabated. The only saving grace is that if he proves that he provided necessaries for the child with a value in the same amount as the child support, it will be deemed to have been paid.
If you owe child support, the only real defense is to prove that you paid it. Any “side agreement” between you and the mother to the effect that you will not have to pay the support is null and void in a court of law. Even if the mother testifies under oath that she had the agreement with you, that “agreement” is still null and void.
Finally, it will sometimes happen that the parties’ circumstances change from what they were when the child support order was entered, to the point where one party (or both) believes that the child support obligation should be modified. For example, a teenager for whom support is being paid might move out of his mother’s house to go live with his girlfriend. Or the father might lose his job. Or the mother might become independently wealthy.
Whatever the impetus, the father might be tempted to reduce his child support. Bad idea. The law is that if you want to reduce your child support, you must get a court order that authorizes you to do so. It is insufficient to have good reasons to reduce your support; you must get the chancellor to sign an order, which says there are good reasons to reduce your support.
Even if the chancellor wants to reduce your child support, he is not allowed to reduce any support that was due to be paid before the reduction order is signed. So if the order is signed on August 1, the child support that accrued from January through July cannot be reduced — even if you filed your lawsuit to reduce child support on January 1.
GLOBAL, PER CHILD, AND STEP-DOWN SUPPORT ORDERS
When more than one child is being supported, the payor will want the child support to automatically reduce in amount as each child becomes emancipated. In other words, he does not want to have to go to court to ask for a reduction in child support as each child turns 21.
Suppose that there are three children, so that the child support guidelines call for child support to be 22 percent of the father’s AGI. If the father’s AGI is $5,000/month, his child support will be 22 percent of this amount: $1,100/month. But once the oldest child turns 21, the child support should just be 20 percent of his AGI: $1,000/month. And when the second child turns 21, the child support for the last child should be 14 percent of the father’s AGI: $700/month.
This can be handled in several ways. First, the child support order can provide that child support starts at $1,100/month, then steps down to $1,000/month for two children, then steps down to $700/month for one child. This is called a step-down order.
Or the child support order can provide that the father will pay $366.67 per month, per child, which adds up to $1,100/month as long as there are three children. But when there are only two children, it only adds up to $733.33/month, instead of $1,000/month. And when there is only one child, the obligation is for only $366.67/month instead of $700/month. This is called a per child order.
Finally, a global support order would simply provide that child support is $1,100/month. The obligation would not change even when children emancipate (although it would end when all three children are emancipated).
Global Support Orders favor the recipient, Per Child Orders favor the payor. Under a global support order, as each child turns 21, the payor has to go to court to get a new, lower obligation. Under a step-down order or a per child order, the reduction is automatic, without having to go to court.
ACCOUNTING FOR CHILD SUPPORT
Both parents in a child support case are required to submit a financial declaration. This declaration lists, among other things, the child’s expenses, both the present expenses and those that the parent expects to be or which need to be incurred.
But once child support has been ordered, the mother will not be required to provide any form of accounting for the money she receives. She will not have to prove that she spent it on, or in the amounts of, the expenses listed in the financial declaration.
The only exception to this is when and if a subsequent lawsuit for modification of child support has been filed. The father can demand that the mother provide the bank statements, credit card bills, or other proof to show how child support has been spent. But in the original order that established the support obligation, the court will not require the mother to explain what she has done with the money.
WAGE WITHHOLDING ORDERS
Judges are required to enter wage withholding orders unless someone convinces him that there is a good reason not to do so. When the child support is awarded in a public assistance case brought by DHS, a wage withholding order is mandatory. The most that can be withheld for child support is 50 percent of the wage earner’s after-tax income. You cannot get a wage withholding order on Social Security or Social Security Disability payments.
OTHER EXPENSES/ADD-ONS TO CHILD SUPPORT
In addition to child support, the judge is also entitled to award child-related expenses. The absent parent can be ordered to pay the expense directly (for example, Dad is ordered to pay the daycare bill directly), or he can be ordered to reimburse the other parent. The most common expenses that absent parents are ordered to pay/reimburse for the children include:
Health insurance
Medical expenses not paid/reimbursed by health insurance
Life insurance (on the parent)
Day care
Extracurricular activities
Sports/Activities
Private school
College
Automobiles
HEALTH INSURANCE
When setting child support, chancellors are required to include in their judgments a provision that addresses health insurance. A chancellor will inquire as to whether the child is presently covered on either parent’s health insurance policy. If so, the chancellor is likely to order that parent to continue the coverage. The exception to this is if similar coverage is available to the other parent at a significantly lower premium.
You will want to provide evidence of the cost of the child’s share of the premium. Most health plans have different premiums: Self, Self+Spouse, Self+Family, and (sometimes) Self+Children. The child’s share of the premium is the cost of adding the child(ren) to the parent’s health insurance. A less-accurate way to calculate each child’s share of the premium is to divide the total premium by the number of people who are covered.
As with all of the add-on expenses, there is no hard and fast rule as to which parent will be required to pay/reimburse for health insurance. There is only a rule of thumb, and a general one at that, which is that the parent with the most income (after taking into account the payment of alimony, child support, debt, and other expenses) will be the one more likely to be required to pay this expense.
QMCSO
The chancellor can require a Qualified Medical Child Support Order (“QMCSO”), which is an order issued to the parent’s employer. The employer is ordered to keep the child(ren) enrolled on employer-sponsored health insurance for as long as the child is eligible for coverage (or until/unless a different court order is issued). The purpose of a QMCSO is to make the employer responsible for the child’s enrollment, so that the custodial parent does not have to trust the absent parent to continue the child’s enrollment in the child’s health insurance plan.
MEDICAL EXPENSES
In conjunction with ordering health insurance, the chancellor will probably also require one parent or both to pay the child’s healthcare expenses that are not paid/reimbursed by health insurance. There are no hard and fast rules on how this works. Depending on the parties’ respective abilities to pay these expenses, the chancellor can order either parent to pay anywhere from 0 percent to 100 percent of the expenses. Parties often agree to each paying 50 percent.
The mechanics of paying medical expenses can be complicated. Generally, the parties are required to provide each other with the insurance EOBs, as well as bills and receipts. The idea is that each party keeps the other in the loop as to what has been charged, what insurance has paid, and what’s left over to be paid by the parent(s).
Some judgments provide that a party will be deemed to have waived any claim for payment if he does not make prompt demand for payment/reimbursement of medical expenses after the EOB has been issued. The idea is to prevent the custodial parent from accumulating years’ worth of bills and then springing them all at once on the non-custodial parent.
LIFE INSURANCE (ON THE PARENT)
The chancellor can order the parent who is paying child support to also maintain a life insurance policy on his life, naming the children (or the other parent, or a trust for the children’s benefit) as policy beneficiaries. The purpose of this life insurance is to secure payment of child support/expenses in case the insured dies before the children are grown. Therefore, the benefit amount should bear some relationship to what the total future payments will be. For example, a parent of a child in high school probably will not be ordered to provide a $1 million policy, because it’s unlikely that the parent’s future obligations will add up to $1 million.
As with all of the add-on expenses, the watchword is cost. You should be prepared to prove how much the premiums will be, so that the chancellor can compare that cost with all of the other financial obligations that might be imposed. A chancellor will not order a large life insurance policy if the paying party simply cannot afford the premiums.
The obligation to provide life insurance should conclude once the insured has fulfilled his financial obligations for the children, and there are no more minor children to support.
DAY CARE, SPORTS, AND EXTRACURRICULAR ACTIVITIES
Chancellors have the authority to order parents to pay all or some portion of the expenses associated with the child’s day care, sports, and other activities, whether school-related or not. These expenses can add up quickly. There are no hard and fast rules to guide how little or how much the court may award, other than that the award cannot be unreasonable. If when considering the parties’ respective assets, incomes, and lifestyles, and the cost of the activity, it would be reasonable for the chancellor to award payment, he may do so. If it would be unreasonable, he should not.
Courts pay attention to the expenses that the family typically incurred prior to divorce. If the family paid for travel soccer before the divorce, the court is more likely to make provision for that expense.
Reasonableness is in the eye of the beholder. What is reasonable for one family would be unreasonable for its neighbors. Even given precisely the same facts to consider, different chancellors might well reach different conclusions as to what is reasonable.
Extracurricular activities is a term of art. It refers narrowly to activities sponsored by the child’s school, rather than to any activity with which the child may be involved. Thus, if a divorce agreement provides that your ex will pay half of the child’s extracurricular activities, your ex has no obligation to pay for, say, karate school or the church summer camp because these are not sponsored by the school.
A common arrangement is for the parents to each pay half of the children’s activities and for the child to have only one reimbursable activity at a time. Under such an arrangement, the child could take piano and ballet at the same time, but only one activity would be (partially) reimbursed by the other parent.
Another common arrangement is to impose a cost-cap, say, that each parent will contribute up to $1,000 per child, per year for activities (or whatever amount the parents decide).
It is helpful to define in the judgment what will be included/excluded as a reimbursable expense. For example, if a child is involved in travel soccer or travel baseball, is the cost of hotel included? Gas? Restaurants? If so, is the cost limited to the child, or are the expenses of the parent who accompanies the child also included?
PRIVATE SCHOOL
A parent can be required to contribute toward the expenses of a child’s private school education, but the Mississippi Supreme Court has held that, ordinarily, expenses so paid are to be deducted from the regular, basic child support obligation. Or, to put it another way, the general rule is that (absent an agreement to the contrary), a parent would not be required to pay for private school on top of regular, guidelines child support. If he is ordered to do so, there must be a good reason.
In seeking payment of private school expenses, it is helpful to prove (if you can) that before the divorce arose, the parents had an agreement that the child would attend private school. This is most easily done by showing that the child is already attending and that the paying party can afford the expenses. In the absence of an agreement, it is helpful to show that there is a need for private school — that public schools are not an effective option, considering the parties’ assets, incomes, educations, and lifestyles.
COLLEGE EXPENSES
The law is clearer as to when parties will be required to pay for college than for private school. A parent can be required to contribute if the child has an aptitude for college and the parent has the financial ability to pay. However, the child must have and maintain a healthy and caring relationship with the paying parent(s), unless the deterioration in the relationship was caused by the parent.
How the chancellor is to measure the child’s aptitude for college has never been fully defined. The child does not have to be on the honor roll or even be an A/B student. Many agreements provide that the child must maintain at least a 2.0 GPA while being full-time enrolled. Other agreements provide that the obligation to provide support extends only for the first eight semesters following graduation from high school, not counting summer semesters.
A chancellor cannot order a parent to contribute to a child’s college expenses beyond the date of the child’s emancipation, unless the parent agrees to it. In one case, the parties’ divorce agreement simply provided that the father would pay for the child’s college education, without specifying whether the obligation to do so did or did not extend beyond the child’s emancipation. Since the agreement did not provide that the obligation ended at the child’s emancipation, the court held that the father was obligated to pay even post-emancipation college expenses.
A parent has no obligation to pay college expenses for a child who does not maintain a close, loving relationship with that parent. However, recent cases in which the child has little or no relationship with the parent have focused on the cause of the estrangement. If the parent, rather than the child, caused the estrangement, the court can still order him to provide for the child’s college expenses.
Basic college expenses at a state-supported school include tuition, books, room and board, fees required by the school, and other necessary living expenses. Beyond this, the family’s finances will determine who has to pay what. Discretionary expenses include fraternity/sorority, apartment (rather than a dormitory), attending a private school or one that charges out-of-state tuition, sports tickets, clothes, restaurants, a car, and so on. As with other add-ons, the chancellor will look at the parties’ lifestyles and respective abilities to pay to determine what expenses would be reasonable.
When negotiating agreements, lawyers take great care to define expenses that are included/excluded, since almost any expense could theoretically be justified as a “college expense.”
Chancellors have the discretion to reduce the basic, monthly child support obligation for the periods when the child is attending college. A typical arrangement is to reduce the obligation by one-half during those months when the child is in fact attending college and not primarily living at home.
