Child support is meant to help the custodial parent pay for their child’s needs, such as clothing, food, health care and more. One factor, among many, used to calculate child support is the noncustodial parent’s income. So if this parent is or becomes unemployed, it’s natural for the custodial parent to worry.
Generally speaking, though, there are ways to collect child support if the father (or other parent) isn’t working. That said, the ability to obtain child support and the amount of support to which you may be entitled depends on the particular facts and circumstances of your case.
The information below may help you better understand child support, including how courts determine how much support you receive, how to obtain child support if the father isn’t working and how to modify child support orders.
Child support awards
In a divorce where children are involved, one critical issue to address is child support.
Child support is the legal obligation of both parents to financially contribute toward the child’s needs and upbringing. The primary consideration in determining a child support award is the best interests of the child. Thus, the courts generally prioritize the child’s needs over the parents’ current financial circumstances.
While there’s no way to determine with certainty how much child support a court will award, most states provide access to a child support calculator. Parents can use this to get a basic idea of how much child support the court may order.
Factors involved in determining child support when a father isn’t working
Most courts calculate child support using a formula that either:
- Considers each parent’s income
- OR calculates a percentage of the paying parent’s income
When a parent chooses to be unemployed or underemployed, courts use several factors to “impute” or assign an appropriate amount of income to that parent that reflects their reasonable earning potential. Then they use that imputed income amount to calculate a child support award.
To determine whether to impute income and calculate the appropriate amount of child support when a parent isn’t working, a court may consider several factors, such as the following.
Reason for underemployment or unemployment
A parent may be unemployed for a number of reasons, such as:
- Voluntary underemployment or unemployment
- Termination from a previous job
- Disability or other health conditions
- Being a primary caretaker for children
Courts typically consider these and other underlying reasons for the parent’s unemployment in making any child support determinations.
For example, if a parent was recently laid off due to no fault of their own, the court may consider pausing child support payments and providing a certain amount of time for the parent to find a new job. Or if a parent has a disability that prevents them from working, the court may order child support, with such payments coming out of any disability benefits the parent qualifies for and receives.
The courts are less lenient if a parent is voluntarily underemployed or unemployed. A parent can’t avoid child support payments simply because they would prefer not to work.
Lastly, if a spouse was a stay-at-home parent during the marriage, the court typically imputes income of at least minimum wage to them. However, the court may make an exception if unusual factors obligated the parent to stay at home, such as having a severely disabled child.
Education and qualifications
Courts may factor in a parent’s education level, skills, qualifications and potential earning capacity when determining child support. In many cases, noncustodial parents with higher qualifications and earning capacity are responsible for larger child support payments.
Job search efforts
Even when a parent is currently unemployed, the legal system typically expects them to actively seek employment until they can secure a job. Courts look unfavorably on an unemployed parent who’s intentionally avoiding work and not making reasonable efforts to find employment.
Custodial parent’s income
In some states, the custodial parent’s income is another factoring in making child support calculations. For example, if the custodial parent has a higher income than the noncustodial parent, the noncustodial parent will likely pay less in child support than they otherwise would have.
How to get child support if the father is not working
According to a 2015 U.S. Census Bureau report, about 44 percent of custodial parents receive the full amount of child support payments due from the noncustodial parent. Although this may seem discouraging, there are avenues to help you obtain child support payments even if your child’s noncustodial parent isn’t working. Consider the following.
Obtain a court order
When a parent is unemployed and not voluntarily seeking employment, you may be able to seek an order from the court directing the parent to actively look for a job. The court may also be able to require the unemployed parent to take specific actions such as:
- Providing periodic reports to the court specifying details confirming their job-search efforts
- Applying for a certain number of jobs in a prescribed time period
- Participating in a local job fair
If an unemployed parent fails to comply with their child support obligations, wage garnishment may be an option to obtain your awarded payments once the noncustodial parent is working again.
Wage garnishment for court-ordered child support is a process by which an employer directly deducts a portion of an individual’s wages from their paycheck. The amount deducted is sent to the custodial parent or child support agency toward fulfillment of their child support obligation.
Even if the noncustodial parent has other outstanding debts, child support payments almost always come out of an individual’s paycheck first. For example, child support takes precedence over and must be withheld before other deductions such as:
- Garnishments from other creditors
- Credit card debt
- Personal loans
- Medical bills
- State and local taxes
- Retirement contributions
- Voluntary insurance premiums
You may also garnish some government benefits, such as unemployment benefits, disability benefits and veterans benefits. While these benefits are protected from garnishment by most creditors, there is sometimes an exception for child support.
Intercept tax refunds
Depending on your jurisdiction, you may also be able to intercept tax refunds. If a parent is delinquent on their child support obligations and you have reason to believe they’ll receive a tax refund, the appropriate child support agency in your state can intercept those refunds and apply them to any unpaid child support. The name of the agency varies by state, but you can typically find it online by searching the name of your state along with “child support collection agency”.
Child support modification
Child support orders may be modified after a divorce, however, most courts will only do so when there’s proof of a substantial and material change in circumstances. This might include when one parent:
- Faces a significant pay cut
- Is laid off
- Becomes incarcerated
- Experiences a significant pay increase
That said, what constitutes a material change in circumstances varies depending on the particular jurisdiction in which the child support modification is sought. It may be beneficial to speak with an experienced family law attorney in your state to discuss the rules and procedures in more detail.
How to win a child support modification case
The parent who requests the child support modification needs to prove that there was a material change in circumstances that warrants the modification. Or if you don’t want child support changed, you need to present evidence that the change isn’t material or substantial.
Evidence you can use to support your claim may include:
- Information regarding any valid reasons for the individual’s unemployment
- Financial statements regarding monthly assets and liabilities
- Child-related expenses such as medical, education and childcare costs
When to talk with a lawyer
Going through a divorce is never easy, especially when children are involved. However, you don’t have to go through this process alone.
An experienced family law attorney can help you gather crucial evidence to support your claim for child support. If your child’s other parent is unemployed or underemployed, an attorney can help you show the court why income should be imputed. They can also review your options for collecting child support you are owed. Having an attorney in your corner may provide valuable support and legal guidance to take some of the stress off your shoulders.