Alaska Divorce Lawyer & Attorney : Peg Roston Law Firm : Property Division, Net Worth, Division of Assets : Anchorage, Alaska

Frequently there is a gap between the date a husband and wife physically separate, the date one of them files a complaint for divorce and the date the superior court judge assigned to a case enters a temporary child support order.
Here are some tips to protect yourself against being assessed child support if you have continued to support your children after you and your spouse have separated:

• Try to reach a temporary agreement about how the children will divide their time between both parties, put it down in writing and have both parents sign the agreement. If one or both of you have attorneys, they can help you with this process.

• If it is clear that you are going to be the non-custodial parent for child support purposes because you have fewer than 110 overnights a year, calculate the amount of your child support and begin making payments to your spouse on the first day of each month after you have separated. Make sure that you write “child support” in the memo box.

• Save all credit card statements, receipts, bills and other written proof of payments you make for groceries, utilities, medical expenses for the children, clothing for the children and activities for the children. Make sure your attorney knows about these payments so you get a credit for these payments against any back child support, which you might otherwise owe from the date of separation forward.

If you and the other parent have not been married, but you have lived together be prepared to provide your attorney proof that you lived together and provided financial support for the children. Finally, if you and the other parent have not lived together, but you have provided financial support for your child/children, you should be prepared to provide proof of the financial support. In either case, the tips in this post can help you protect yourself from paying child support during a time you were supporting your children.

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One of the challenges divorcing parents face is negotiating a parenting plan, which includes a schedule of the time the children will spend with each parent during the school year, summer vacation, and holidays.

Because child support is tied directly to the number of overnights each parent has with the children, parents frequently have a double agenda when they negotiate a parenting plan, which allocates the amount of time the children will spend with each parent.

Under Alaska law, child support is calculated using the formula found in Alaska Rule of Civil Procedure 90.3(a)(primary physical custody) or 90.3(b)(shared physical custody). There is a third formula for divided custody cases where each party has primary custody of one or more of the children.  There is a fourth "hybrid" formula, which applies when the parents have a combination of shared and physical custody. 

Whether Civil Rule 90.3(a) or Civil Rule 90.3(b) applies depends on the number of overnights. The magic number for child support is 110 overnights. If a parent has less than 110 overnights in a year, then child support is calculated based only on that parent’s income. If a parent has more than 110 overnights than child support is calculated using a formula, which takes into account both parents’ income. Converting the number of overnights into a percentage is the first and perhaps most important step. For example if one parent has 112 overnights the calculation is: 112/365 = 30%. So for child support purposes there is a 30/70 shared custody arrangement.  You can find additional information about the nuts and bolts of calculating child support on the Family Law Self-Help Website, which has a useful set of questions and answers about child support.

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Back child support is a frequent problem in a divorce case particularly if there is a gap between the date a couple separates and the date one of the spouse's files for divorce.

According to a concise, well-written June 2, 2008 post on Attorney Robert Mue's Ohio Family Law Blog, the IRS is treating the federal economic stimulus payment as a tax refund.  If you owe back child support, the IRS will apply the payment to the amount you owe.  So you may receive a smaller payment or no payment at all.  Quoting Attorney Mue's commentary, the New Hampshire Family Law Blog writes:

So what do you do if you and your spouse have filed a joint return and your spouse owes back child support if you want to avoid having the IRS seize your share? Well, you may fall in the category of what the IRS calls an “injured spouse”. To get your share of the stimulus payment, you can file Form 8379, Injured Spouse Allocation. You will then get your share of these payments, and your spouse’s share will be applied to his or her past-due federal or state income taxes or non-tax federal debt such as student loans and child support.

This is something you should take up with your tax-preparer or divorce attorney if you are concerned that your economic stimulus payment may be seized to pay back child support.

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