Child support is defined by the Internal Revenue Code as a “payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.”  26 U.S.C.A.  71(c)(1).  Basically, child support is a payment ordered in a divorce decree that the divorce decree labels as child support.  There are situations where payments labeled as “child supprt” may not qualify as child support but we won’t get into those right now.  The tax code treats any payment of child support, so long as it meets the requirements of Section 71, as a non-taxable event, meaning that the receiving spouse does not include the child support in gross income (which means it is received tax-free) and the paying spouse receives no deduction for the payment of child support.  26 U.S.C.A.  71. 

Alimony, on the other hand, is considered income to the receiving spouse (must pay taxes on it just as if earned at a job) and may be considered a deduction by the paying spouse.  26 U.S.C.A. 71.  There are situations where the Internal Revenue Service may consider a spouse to be receiving alimony even if the payment is not called alimony.  Obviously, this would be a huge problem if the receiving spouse had not been including the alimony payments on her income tax return.  We’ll get into alimony is more detail in a later post.

Many people try to prepare their own divorce documents to save money on legal fees but often their efforts to save money result in unintended tax consequences.  It definitely pays in the long run to get the divorce documents drafted correctly.  You do not want to find out during an audit that the tax-free money you’ve been receiving is not really tax-free.

One of the headlines today is “Kate Accuses Jon of Taking $200,000.”  Apparently, Jon and Kate maintained over $200,000 in a joint account and after being notified that he would no longer be part of the show, Jon withdrew all but $1,000 of the money.  Perhaps Jon had a good reason for the withdrawal, but his “reason” had the effect of leaving his spouse and children with very little to make ends meet.   

When two people separate and anticipate divorce, it is natural to be wary of the other’s intentions and to be mindful of your own financial security, especially when children are involved.  However, it is important to remember that in Mississippi, when money is withdrawn from an account held jointly with your spouse, that the money also belongs to your spouse.  This does not mean withdrawing money is improper (unless a court has prohibited any withdrawals), but you may ultimately have to account for the money if a court decides that you overreached and withdrew more than your share of the marital funds.  In the Gosselin matter, Kate withdrew $100,000 earlier this year and was ordered to return the money.  Now that Jon has done the same thing, it is hard to imagine a court not ordering him to return some or all of the funds to his wife, especially considering she is now raising their eight children alone.

When withdrawing funds from a jointly held account while a divorce is pending, it is important to be reasonable and know that you may be ordered to return all or some of the money, even if it has been spent.  While winning the race to the bank may be beneficial, the benefit may only be temporary.

Typically, the husband and wife both sign a document called a Joint Complaint in which they ask the court to grant them a divorce on the basis that irreconcilable differences have arisen between them.  Usually there is a written agreement attached to the Joint complaint that addresses the division of assets and debt, provides for custody and visitation and addresses other issues important in a divorce.  Both spouses will also need to complete a financial statement, unless they agree to waive that requirement.  Once the Joint Complaint is signed, it is filed with the Chancery Clerk’s office in the county of either spouse’s residence, if both are Mississippi residents.  If one of the spouses is not a Mississippi resident, then it should be filed in the county where the Mississippi resident lives.  The Chancery Clerk will require the parties to pay a filing fee at the time they file the Joint Complaint. 

Once the Joint Complaint is filed, it must remain on file for at least 60 days before the judge has the authority to grant the divorce.  In comparison to divorces based on grounds such as adultery, the 60 day period is pretty quick.  During that 60 day waiting period, it is important to remember that you are not divorced.  Even though an agreement has been reached on a divorce, no spouse likes to see their husband/wife displaying their new “companion” in public and such actions often result in litigation.

Once the 60 day waiting period is over, your lawyer will meet with the judge to present the written agreement for approval.  The Court will review the agreement, along with the financial statements, to determine if the agreement is adequate and sufficient.  If so, the Court will sign a document called a Judgment of Divorce that, when filed with the Chancery Clerk, will grant the divorce and end the marriage. 

There are other ways to obtain a divorce on the ground of Irreconcilable Differences and there are variations to the process, but this procedure is the most common.  If you are considering a divorce, you should contact an attorney to discuss your options.  Because of its simple procedure, many people try to get divorced without an attorney.  While this may save a little money on the front end, you may end up with a really bad divorce agreement that you cannot change.  It is well-worth the investment in an attorney to make sure your divorce is done properly.

The first step in the process is calculating the amount of monthly adjusted gross income. This generally is done by taking the gross amount of money earned in a month (which includes all earnings, even if paid in cash) and deducting from that the amount withheld for federal, state and local taxes as well as social security contributions. If the paying parent is required to pay child support for another child pursuant to a court order, then that amount should also be deducted from the monthly gross pay. If mandatory contributions to a retirement plan are made, then a deduction is taken for those contributions. (All of these mandatory deductions, including taxes and social security contributions, are most easily calculated by reviewing the payor’s W-2 form). Finally, if the paying parent is also the parent of a child living with him, then the court may subtract an amount that it deems appropriate to account for the needs of that child. The amount remaining (if calculated on a monthly basis) is the monthly adjusted gross income. If the calculations were done from a W-2 form then the net amount must be broken down into a monthly amount by dividing the net amount by twelve.

Once the monthly adjusted gross income is calculated, the next step is to multiply the monthly adjusted gross income by the correct child support percentage to come up with the amount of monthly child support. The percentages are:

1 child: 14%
2 children: 20%
3 children: 22%
4 children: 24%
5 or more children: 26%

There are some exceptions to these rules, but this summary should assist anyone who wants to take a shot at coming up with a ballpark child support calculation. It is important to remember though that the Court is the final authority over the amount of child support and it evaluates child support amounts carefully to make sure that the law is followed.