A child support case in which combined parental income exceeds $100,000, or where one parent’s income exceeds $60,000, needs special attention. It needs case specific analysis.

Guidelines in most states do not adequately address cases in which the obligor, obligee, or both have above average incomes. Many states have presumptive formulas that apply to all income and do not have a cost or income ceiling. These states may have a deviation factor for incomes over a certain level, but it is still the court’s discretion to honor this suggested ceiling or not. Even in states with presumptive ceilings, the custodial parent can argue for higher awards above the guideline. The real problem is, of course, that there is a lot of money at stake and guidelines provide too little guidance to the courts to preclude the likely winner of child support from arguing for awards that exceed actual costs. In practice, statutory child support ceilings provide little guarantee for a fair and appropriate award without proper argument in court.

Without a combination of proper legal argument (both statutory and case law), and supporting economic exhibits, a high income non-custodial parent is at risk for an award in excess of needs.

Legal issues typically include:

• The guideline is rebuttable for situations in which there is no presumptive ceiling.
• The presumptive award must be set aside when more credible evidence on child costs is shown.
• Child support must be based upon the evidence of actual costs presented to the court.
• Child support must be based upon needs and ability to pay.
• Child support cannot be used as an indirect means to obtain portions of an obligor’s estate.
• Child support cannot be used as a means to circumvent a parent’s right to disinherit a child.
• Child support cannot be used to artificially extend the age at which the duty of support ends.

Yet child support is often used for many of the above, simply because proper evidence was never submitted.

Economic exhibits supporting a fair and economically reasonable award include:

• Comparing case facts to key underlying facts of the presumptive guidelines, such as whether the guidelines were designed to apply to high income situations.
• Using economic studies on child costs to rebut the presumptive child cost amount.
• For both parents, comparing the before-tax, before child support award incomes to the presumptive, after-tax, after-child support award incomes to show that the presumptive award is excessive and leaves a lower earning custodial parent better off than a higher income non-custodial parent.
• Showing the “salary equivalent” of the presumptive child support award. That is, how much in salary income a custodial parent would need to have the same, additional after-tax income as from non-taxable child support.
• For the self-employed obligor or the obligor with business properties, defining (with exhibits) the economic basis for “available income” or “ability to pay” child support in contrast to future income. (Unrealized capital gains.)
• Comparing changes in each parent’s standing in a state’s income distribution, before and after a child support award.
• If their incomes sharply differ, compare the presumptive award to alternative awards that are based on a standard of living that is between the custodial and non-custodial parents.
• Comparing the relative cost of living for cases in which the child lives in a area with a significantly higher or lower cost of living than the obligor. This issue is especially important for cases in which the child lives in another country with a substantially different cost of living. That should rebut the presumptive use of guidelines that all assume the child lives in the United States.