A Child Support case begins with the filing of a Petition for Support. Either parent may file a Petition for Support, even if they are ultimately the parent which ends up paying support. The first step is to establish the paternity of the father. Often this has already been done at the child’s birth through signing a voluntary acknowledgement of paternity. If this has not yet been completed, however, the Court can Order genetic testing to establish the paternity of the children.
In most Delaware cases, Child Support is determined using a formula, often referred to by practicing attorneys as the Melson Formula or the Delaware Child Support Formula. Delaware law requires both parents to contribute to support their children and requires that the parents be appropriately employed to accomplish this requirement. The formula takes into account each parent’s income, how many children they are each required to support, allowable payroll deductions, and child care expenses. The Formula also considers the taxes, including local taxes, that each parent is required to pay. In nearly all cases, child support is paid through a wage attachment, meaning that the parent receiving support receives a check from the Division of Child Support Services each time the other parent is paid. The Court may also award medical support, where one parent is required to maintain the children on employer-sponsored medical coverage.
Child Support Mediation
Like most cases in Delaware’s Family Court, the case is then scheduled for mediation. At mediation, the mediator is given information about the parents’ incomes, certain payroll deductions, and how many children each parent is required to support. The mediator will run calculations using different support scenarios. If the parents are able to agree, then the agreement is put in writing and sent to a Commissioner to be entered as an Order of the Court. If the parents are unable to agree, the case is scheduled for trial before a Commissioner.
Trial for Wilmington Child Support Cases
If the case is scheduled for trial, the parents are expected to each complete a Rule 16(a) Financial Report detailing their income, payroll deductions, and child care expenses and later appear before the Commissioner for a trial. Discovery is also permitted at this time where each parent can seek information about the other parent’s income and deductions, both through requests for documents and in some cases depositions of their employers or accountants.
At the trial, the Commissioner hears evidence about each parent’s income, including overtime, bonuses and income from businesses or investments as well as payroll deductions, such as union dues, medical insurance, and 401(k)/ pension contributions. If a parent is unemployed the Court can attribute income based on the parent’s last job, unemployment compensation, or using the Delaware Wage Survey, which contains information about wages across the State. Although the Court allows parents to make 401(k) or pension contributions, those contributions are generally capped at 3% of the parent’s gross income unless the contributions are mandatory through an employer. The Commissioner may then hear evidence about child care expenses and private school tuition and include some, all, or none of these expenses in the support formula. The Commissioner then uses the evidence to determine the inputs to the Formula and arrives at a total child support figure.
Appealing a Child Support Decision
If either parent is unhappy with the decision or believes the Commissioner wrongly applied the law, they may appeal to a Judge, called a Review of Commissioner’s Order, within 30 days. If they do not appeal, that right is lost and the Commissioner’s decision stands. If either parent is unhappy with the Judge’s decision, that parent may appeal that decision to the Delaware Supreme Court.
Modifying Child Support
Parents are required to pay support according to the Court’s Order. A parent may file to modify the Order based on a change in circumstances. In most cases, the Court will not modify the Order unless it results in a 10% change in the support due. If a parent does not pay support, the parent receiving support can file a Petition for Support Arrears, in which the parent lays out the payment history and asks the Court to add an additional payment to the current support to clear the arrears over time. Child Support terminates automatically at the later of the child’s 18th Birthday or when they finish high school. Child Support does not extend past age 19, except in certain rare cases involving disabled or incapacitated children.
Call a Wilmington Child Support Attorney Today
The child support process—particularly discovery, preparing a case for trial, and presenting the case—is complex and requires significant time and energy to be done properly. The Family Court cannot provide you legal advice or guidance on how to protect your rights. Don’t risk a bad decision that may be difficult to modify in the future! The Family Law attorneys at Doroshow, Pasquale, Krawitz & Bhaya can represent you and ensure that your rights are protected and that your case is presented in a way that increases your chances of a realistic support order. Call us today for a consultation.
