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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

The Judge
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 evidence.

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.


Your Lawyer
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 challenge.

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.


Pro se
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 search engine.

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.


If 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 in costs.


If 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 rare.)

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.


Any 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.)


Common Deviations
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.