Presenting Your Case
The economic arguments against
most states’ presumptive awards are clear and straightforward.
However, first there are a number of case variables to review.
We are NOT lawyers. Mr. Rogers is an economist and expert
witness on child costs and child support guidelines. The following
information is generally available to the public. It is only for
general education purposes and is NOT LEGAL ADVICE. An attorney
should be consulted for case-specific issues.
Step One: Common Variables
All we ask is for a reasonable judge. He or
she need not be a genius nor versed in economics, just be
a reasonable person.
We have had good fortune
here. Judges know that their job is to listen to arguments
of law and fact and they are usually happy to do so –
especially interesting ones – so long as they are well
presented. What we offer is the presentation of economics
based awards, based on sound legal principles and economic
BUT neither you nor we nor
your lawyer control the judge. There are no guarantees.
We make no guarantees of successes since everything depends
upon the judge’s:
a) Willingness to hear
the arguments and evidence.
b) Ability to comprehend them.
c) Personal judgment of them.
Any court case is in some
ways a crap-shoot. Judges vary according to willingness to
deviate from the presumptive award.
Attorneys have not been as willing to argue
for rebuttal as judges have been willing to deviate when presented
with sound reasons. We expect this to gradually change as
more realize that this is a viable, proven course, but currently
most lawyers seem reluctant to do what they may see as challenging
their own establishment. So finding a lawyer is your first
There is a simple qualifier:
Ask the candidate lawyer if they are willing to rebut the
guidelines themselves, not just go along with guideline awards.
Ask them to visit this website and comment on it. We recommend
you contact local support groups who may be able to refer
you to lawyers who will do this this kind of work.
We recommend against acting as your own
attorney. After a reasonable judge, the only other requirement
is proper presentation. This will not be the usual child support
hearing so an however reasonable judge will be understandably
annoyed. A non-lawyer is basically asking the judge to do
their job for them in dealing with opponent objections and
other formalities. Not only is that not their job, it tempts
violation of what is I job which is why it puts judges on
edge. There are good reasons for court formalities. They protect
all parties, including the judge, and you are asking
a lot from him / her as it is.
However, we understand that
many non-custodial parents have limited financial resources,
especially those already paying child support under current
guidelines. This site provides information that will help
though they are intended for lawyers and financial experts.
If you must represent yourself use the American
Pro Se Association and seek assistance from your own county’s
court or from the court of a large county in your state. For
other resources, enter “pro se” in an internet
Still, before doing without
either lawyer or expert witness, consider how much money is
at stake. If it means the difference in saving large amounts
over the next 18 years, maybe you can afford to do
it right the first time. On the other hand, if you get a lawyer
be fully confident in him or her. Any doubts and get another
without hesitation. Too much is at stake.
you already have an order
Most states declare a statutory limit of 2
or 3 years after one child support ruling before you can request
another. But in all cases, a material change in circumstances
should allow you to ask for an immediate hearing instead of
waiting 2 or 3 years. (Many court documents only mention the
time limit, but irrespective of what they say, you can always
file for a hearing if there is a material change, even if
your last hearing was yesterday.)
What constitutes material
change? Ask your lawyer to be sure, but losing a job (any
“substantial” change in income of any sort, and
ask a lawyer for what “substantial” means in your
jurisdiction) always counts, as does any substantial change
your income is reduced
Immediately file a written
petition for modification. The Bradley Amendment to the Social
Security Act prohibits any court from any modification of
arrearage. Ever, for any reason. Anything unpaid piles up
and there will be nothing any judge can do. (Some states are
offering some relief for some special cases, but these are
In some states a court can
assign the new award to start from the day of the filing,
but not before. In other states a new award may not start
until the hearing and ruling are finished. Either way it is
important to file as soon as possible.
Child support arrears also cannot be discharged
by bankruptcy. They will accumulate until child support is
modified for the obligor to afford both current support and
arrearage payments. Courts do put people in jail for being
unable to pay. However, inability to pay is not considered
an excuse. You must get the order modified and, to avoid further
arrears, must do so immediately upon any reduction of income.
hearing is for everything
Check with your lawyer, but it is almost always
true that, once the award is opened (a hearing scheduled)
– by whichever party, for whatever reason – the
entire child support amount can be re-set. All aspects of
your child support case can be re-assessed. (This is one reason
courts are reluctant to hear cases often. There needs to be
a real circumstantial change to warrant this broad task.)
As part of their guidelines all state legislation
lists grounds on which the judge may deviate from the presumptive
amount. Each state’s list varies slightly but commonly
includes things such as other children, distance, parenting
time, age of children, etc. They did this believing it would
satisfy the federal requirement that the guidelines be rebuttable.
But state legislation typically fails to
give the judge any guidance as to how much deviation to allow
for what reason, so judges rarely deviate. All states require
that the judge explain why they made any deviatation, so if
you present vague arguments a judge is not likely to oblige.
Judges can only deviate when given concrete (numerical) exhibits
for factors and well thought out arguments.
We can take two approaches to rebuttal. First,
we may present economic evidence and case law (through your
attorney’s argument or brief) showing that the guidelines
themselves should not be applied to your case. We provide
an economics based model ()
that can be more appropriately substituted. Second, if the
judge is unwilling to completely discard the presumptive award,
we show economics rules that can be used for deviating for
various circumstances, such as shared parenting or additional
dependents in a separate relationship.
Judges rarely deviate because they are not
shown how. That’s what we do.
Step Two: Presumptive Awards
All states have numerical formulas
for calculating a presumptive child support award for all cases.
There are two ways to ask that the award in your case be either
higher or lower than the presumptive amount: request a variance
based on the deviations allowed for in the state law, or challenge
the appropriateness of the presumptive amount itself. What follows
is relevant to both approaches.
First, to understand these child
support guidelines, see our
Primer. It is these state-enacted
guidelines you will be after, one way or another. (You should read
all sections under
before going on.)
As you know from reading that,
the two most commonly adopted guidelines are Income Shares and Wisconsin
(or Percentage of Obligor Income). You might also browse the Analysis
sub-sections for the papers on their lack of economic foundation.
But simply having studies showing
that current guidelines are generally excessive and without sound
economic foundation is not enough. You or your lawyer must convince
a judge that they are inappropriate as applied to you.
That’s not all. You must
provide the judge with an alternative that is
legally and economically sound. (You didn’t think you
could argue against something without offering its replacement?)
You can only show what is not founded on mainstream economic
practice and child needs by comparing it to something that is.
This is not hard. The current guidelines
of all states were adopted in a rush to comply with the 1989 deadline
for establishing presumptive guidelines as required by the federal
Family Support Act of 1988 (just one year before the deadline).
Guidelines were enacted with little real study and without careful
professional review to ensure that they actually apply a standard
of equal duty of support. States also had financial incentives (federal
matching funds) to enact high guidelines. The outcome was that states
enacted guidelines that are without sound economic foundation, are
excessive, and do not fully apply a standard of equal duty of support.
In fact, two separate judges found Georgia’s obligor-only
guidelines so inequitable that they declared them unconstitutional.
(See, for instance, Judge
Perkins' ruling.) Those decisions were reversed on appeal but
still point out the inequity and economic flaws. These issues provide
the basis for rebutting the presumptive award.
Step Three: What We Offer
You are now ready for the next two pages.
But whatever model your state uses, what exactly must be prepared
for your case is not only dependent upon the general model used,
but exactly how that state enacts it, plus the nuances to your own
situation, plus the nuances and conventions of your county court.
There is a lot of work to this, and it’s better to use an
expert who’s done it before and had success along with a lawyer
who knows your state’s laws. The next two pages are NOT a
do-it-yourself kit. They are only so you have a very clear idea
about what is going on, its validity and soundness, and what you
would be paying for.
The next page is “Legal Basis,”
and applies to all cases. After that, go to only one of
the case against Income Shares or the case against Percentage-of-Obligor
Income, depending upon your state.
If you live in a Melson or Hybrid
state, they have similarities to both models and both pages after
the next one will be useful.