What Are Your Child Support Options? Learn More from an Attorney in West Linn, OR
Serving Clients in Oregon City, Milwaukie, Lake Oswego, West Linn, Portland, Wilsonville, and Surrounding Areas
Since the Oregon Legislature first enacted a child support statute in 1989, it has made many changes in the formula by which support is calculated. (Prior to 1989, child support was based on a formula created by the Oregon Supreme Court.)
The power and authority of the Oregon Department of Justice, Support Enforcement Division has increased significantly, and the authority of parents to make financial decisions regarding their own children has decreased. Nevertheless, parents still have more authority than they may think.
How is Child Support calculated?
The current Oregon Child Support Guidelines’ formula consists of several variables and a fixed chart of “basic support.” With this information, the “legal” amount of support to be paid from the non-custodial to the custodial parent can be calculated. The variables are 1) each parent’s gross monthly income, 2) the number of children, 3) the children’s health insurance premium, if any & which parent is paying the premium, 4) the number of children each parent has from another marriage, 5) which parent will have custody and the amount of visitation time the other parent will have, 6) the ages of the children and 7) the actual monthly day-care expense. With this information an experienced attorney can determine the “legal” amount of child support.
Does the Child Support calculation take into account income taxes?
No. The child support formula is based upon before-tax income and does not account for changes in federal income taxes from year to year. The payer is not able to deduct child support on tax returns, and the recipient is not required to pay taxes on the child support received.
Can divorcing parents create their own financial arrangements for the children?
Yes and no. The short answer is yes IF the parents work together and have attorneys who are willing to work with them. Some attorneys will tell you that you have no choices, but they are inexperienced and/or uninformed. Seek an attorney who understands all your options and will work with you to maintain some control. The short answer is no IF the parents do not cooperate and/or the case actually goes to trial. With some exceptions, the trial judge is required to follow the Oregon Child Support Guidelines.
Who decides the correct amount of Child Support?
Only a Circuit Court Judge has the authority to order one individual to pay money to another individual, including child support. Both legal parents of a child are obligated to provide for the child. This is true for both paternity parents and divorced parents. If the parents do not live together, one parent can obtain a child support order from the Circuit Court requiring the other parent to pay support.
How does the process start?
The parent who wants to modify an existing support order can choose one of two methods. He or she can file a motion directly with the Circuit Court, either with or without hiring an attorney, OR file an application with the DA’s Office who will process the paperwork, contact the other parent, calculate the alleged support amount, and draft the Support Order.
If one parent wants to challenge the amount of support that the DA’s Office calculates, he/she can request a telephone hearing. The decision of the hearings referee does not become a support order until it is signed by a Circuit Court Judge. Either parent can challenge the referee’s decision by filing an appeal with the Circuit Court within 60 days. The State of Oregon has no authority to arbitrarily change child support and no authority to “rule” upon the amount of support. ONLY a Circuit Court Judge can do that. A support order obligates monthly payments only when it is signed by a judge.
Is there any difference between filing for child support directly with the Circuit Court and filing through the DA’s Office?
Yes! There is only one child support chart and only one set of rules. The Court, the DA’s office, and the hearings referee are all supposed to calculate child support the same way. However, judges have much more authority, more experience with “the bigger picture,” and more discretion in applying their own interpretation of the child support rules, than the DA’s caseworkers. Also, the expertise of the DA’s staff varies from county to county, and the caseworkers are usually NOT attorneys. The key to protecting your interests lies in understanding the process. I strongly recommend a consultation with an experienced attorney before a parent files the application with the DA’s Office.
How long does it take to get child support changed?
The length of the process varies widely. If a parent files directly with the Circuit Court in Multnomah or Clackamas Counties, the entire process will take 6 to 12 weeks. In my practice, I pick a hearing date 6 weeks in advance, because that is all we need to get the other parent served and prepare for the hearing. Filing with the DA’s Office takes about 6 to 12 months. The time varies greatly from case to case, depending upon whether a parent requests a telephone hearing, the experience of the caseworker, and whether the case is transferred between caseworkers.
With such a difference in the time involved, why would anyone file with the DA’s Office?
The taxpayers are paying for the entire process if a parent uses the DA’s Office. However, the parent has little control over the process and is not kept informed. If a parent files directly with the Circuit Court (with or without hiring an attorney) he/she has control over the process, is closely involved in each step, and can stop or change the process at many points. Also, other issues, such as the child’s medical expenses and visitation problems, can only be addressed by the Circuit Court, since the DA’s Office has no authority to handle these.
Moreover, once the bureaucracy starts the process, it is out of the parent’s control and cannot be stopped until it runs the full course. If the parent is unhappy with the result, his or her only recourse is to file an appeal with the Circuit Court. The old expression ‘you get what you pay for’ really applies here. Free services may save you money in the short-run, but often cost you much more in the long run. I have met many unhappy parents who filed for an increase or decrease via the DA’s Office, and wound up receiving the opposite.
“Oregon Supreme Court Denies Parents Equal Protection”
By Diane L. Gruber
Published in The West Linn Tidings, May 17, 2001
In its April 26, 2001 decision, the Oregon Supreme Court affirmed an Oregon statute that places financial burdens on divorced and paternity parents that are not forced upon married parents.
The Fourteenth Amendment to the U.S. Constitution prohibits states from treating some citizens differently than other citizens: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”
In 1973, the Oregon Legislature decided that divorced and paternity parents would be required, BY STATUTE, to finance their adult children’s forays into post-high school learning. There is no such statutory requirement that requires married parents to provide a dime for ANY purpose to sons and daughters who have reached majority. Indeed, once the kid reaches age 16 parents are not even required to get Junior to the front steps of the high school building, although they are required to support him UNTIL the age of majority, 18.
The age of majority was lowered from 21 to 18 in 1973. At 18 we can vote, we can enter into binding contracts, we can live wherever we like, we can travel to the other side of the world, AND we can force BOTH parents to send us a monthly check.
There are just two “conditions” that must be met: 1) our parents don’t reside together and 2) we are enrolled in ANY type of school part-time (10 credit hours per term) maintaining a “C” average. We can extort these payments from mom and dad until age 21 so long as we continue with our basket-weaving classes. We are not even required to declare and work toward obtaining a degree.
For years family law attorneys, recognizing that this Oregon statute tramples the 14th Amendment with mud-covered boots, (or should I say ducks), have speculated over just when a trial judge would be brave enough to officially recognize and comply with the U.S. Constitution, and thereby incur the wrath of the powerful Liberal minority who has long controlled the Oregon Judiciary, the Oregon State Bar and the Oregon Legislature.
Finally, in 1997 an Oregon Circuit Court Judge, Paula Kurshner, (Multnomah County) had the courage to follow the U.S. Constitution when she ruled that “ORS 107.108 permits a child support obligation to be imposed upon one class of citizens . . . while no provisions exists permitting such an obligation to be imposed in like circumstances upon married parents.” In her ruling Judge Kurshner said Dennis Crocker did not have to make “child” support payments because his 18-year-old daughter decided to go to college. His ex-wife, Marianne Groom, appealed this decision to the Court of Appeals who reversed Judge Kurshner’s ruling, stating that there is a “rational basis for a distinction between divorced parents and cohabiting married parents.” Mr. Crocker then appealed to the Oregon Supreme Court.
The Oregon Supreme Court refused to address the issue of constitutionality. In a tortured reasoning process that utilized an obscure statute adopted in 1889, the court came up with an excuse for discriminating against divorced and paternity parents. Neither the father’s attorney nor the mother’s attorney used this antiquated statute, ORS 108.110, as supporting either side of this dispute. However, the Support Enforcement Division and the Oregon Attorney General, in it’s “friend of the court” brief brought up this statute. That was all the court needed to know. They had their marching orders from the State, and they marched all over the U.S. Constitution, not to mention the Oregon Constitution, and a significant number of Oregon’s citizens.
The childless, never-divorced, and/or naive among us might very well ask “Why should Support Enforcement or the Attorney General care whether or not parents must pay ‘child’ support for adult children?” The State of Oregon intercepts the great majority of child support payments paid between mothers and fathers and runs the money through the State’s coffers before sending it to the college student or the custodial parent. While these funds are being held by the State, the State earns interest on it. This interest is not turned over to the parent or college student.