Should side jobs lead to increased support obligations?

One of the many fundamental unfairnesses in South Carolina’s child support system is that a payor’s increased income almost universally leads to an increase in child support while any decrease in the payor’s income requires the payor to prove he or she (generally he) isn’t underemployed or didn’t suffer the decrease in income due to his own actions before he gets a decrease. Contrast Rogers v. Rogers, 343 S.C. 329, 540 S.E.2d 840 (2001), which held a 21% increase in a noncustodial parent’s income justified an upward adjustment to child support with Miller v. Miller, 299 S.C. 307, 310-11, 384 S.E.2d 718 (1989), which held “[a] downward modification of child support based upon a decrease in the noncustodial parent’s income is not warranted absent a strong showing the person seeking the change is no longer in a condition to make the support payments prescribed by an earlier Family Court order.”

Roy Stuckey’s Marital Litigation in South Carolina, 4th Ed., notes that “making ‘inability to pay’ a precondition for child support reduction is contrary to the conceptual foundation of the Child Support Guidelines which is that both parties should be responsible for providing child support in proportion to their incomes.” Id, at 680. He further notes this system “raises Equal Protection issues.” Id. The system creates a continued upward pressure on child support obligations that are one cause of the mass incarceration for civil contempt, a system that troubled the United States Supreme Court in Turner v. Rogers, 564 US 431 (2011).

The system become further unfair to noncustodial parents when they take second jobs to maintain their own lifestyle when face with a support obligation or an increased support obligation. South Carolina’s child support guidelines note that child support is premised on the idea that:

The Income Shares Model calculates child support as the share of each parent’s income which would have been spent on the children if the parents and children were living in the same household. The shares are based on the amount of money ordinarily spent on children by their families living in the United States and adjusted to South Carolina cost of living levels. This evidence indicates that individuals tend to spend money on their children in proportion to their income, and not solely on need.

Conceptually, this Income Shares Model accurately reflects how most parents link income and expenditures on children. As income goes up, expenditures go up. These expenditures tend to go up proportionally with income–as does child support (at least until incomes increase above middle-class).

However, in the midst of or after support litigation, non-custodial parents often take on second jobs as a method of paying their support obligation without diminishing their own lifestyle. The useful fiction that parents will use some portion of their income to support their children is a falsehood here. I’ve yet to see anyone take on a second job because they want to pay more child support. Yet, South Carolina family law treats this second-job income no differently than the primary job and will use the combined income to increase the support obligation. And, as noted above, a noncustodial parent who then cuts back on his or her second income will have a hard time getting a support reduction.

Second-job income that exists at the time of separation (in marital litigation) or the time of the initial support request is properly considered in setting child support as the fiction that part of this income was meant to support the child is justifiable. However a parent who wishes to quit a second job should be entitled to automatically have support adjusted so long as he or she is working a full-time first job. And a parent who takes on a second job after the support obligation is set shouldn’t have that income count towards child support. Adults should be able to better their financial circumstances through extra work without having ex-spouses or co-parents taking a chunk.

And now the counterargument from my esteemed colleague, Paul LeBarron, who is offering his personal opinion, and is not the official position of South Carolina’s Child Support Services Division.

Child support in South Carolina is calculated pursuant to the income-shares model, which is the prevalent model of child support determination in the United States. The model aims to approximate the support of a child in a household if both parents were still together in that household and providing for that child, with each parents’ share determined. In this basic fiction, it follows that as more monies come into the shared household the child is benefited proportionately.

The child does not have the ability to support itself, so it must depend on the parents who created the child. Each parent has the duty to provide for their children to their utmost ability. That utmost ability is reflected in a demonstrated capacity for earning. Absent unearned income, such as investments or royalties, this wage capacity defines the gross income utilized in calculating a child support obligation. A second, third, or fourth job increases this wage capacity. When one has a duty to support a child, that person cannot be allowed to choose not to support that child to the best of their ability. Although an individual can choose not to continue working several jobs, the standard of living of the child should not diminish due to those choices.

One of the anecdotal reasons to support this position is the other side of the equation. Many single mothers are forced to work a second job to make sure the children get their needs met. The expense is constant: food, clothes, housing, child care, school, activities. These mothers do not work for themselves, they work for the children. The other parent should do no less.

Society does not impose children on individuals. The individuals make the children through voluntary, consensual actions. While a child is living, the parent’s life should be devoted to providing for and nothing that child. The fact that the child is no longer in the constant care of one of the parents is immaterial, and therefore makes it selfish for such parent to believe that bettering his own standard of living should not also benefit the child’s through increased child support.

On the other hand, when an individual works in excess of sixty, seventy, or eighty hours per week, that level of activity may not be physically possible over an extended period of time. That argument goes to the Miller factor of ability, where a judge would need to determine whether a parent should be forced to continue working at that level for years to come. As each individual is unique, there is no cookie-cutter answer to that question, and should only be addressed on a case-by-case basis.

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