When parents divorce or separate, they encounter the difficult task of determining child support. Since the late 80’s, mediators have been asking divorcing couples to create parenting plans instead of fighting for custody. Similar logic supports the same approach for child support. Such a shift in thinking is necessary today; the rigid application of child support guidelines can create unfair results when applied to individual divorce situations. Many states have implemented deviations from the norm to address the inequities resulting from the use of these guidelines, and when these changes are evaluated as a whole they reveal that an alternate approach is necessary. This article asserts that the implementation of these deviations is necessary because current child support guidelines are based on three flawed assumptions. These deviations attempt to acknowledge and correct these flawed assumptions, and in turn create a more fair an equitable child support system. Just as parenting plans have evolved to allow families to co-parent after divorce, states should begin to implement Child Support Plan legislation so that divorcing parents can eliminate the need to rely on statutory deviations created by the inherent unfairness in current child support guidelines.
This article examines the current approach to creating and enforcing child support guidelines and suggests a new way to achieve cooperation between divorcing and never-married parents through the use of a “Children’s Checkbook ”  to manage the shared costs of raising the children. The three major flawed assumptions in existing child support guidelines are that the formulas assume that child support (1) must be exchanged between the parents, (2) must be tied to the amount of time a child spends with each of parent, without reference to how much each parent actually pays for the child’s expenses, and (3) must be a single mathematical formula. Each state has attempted to address these flaws by setting forth situations under which courts may either deviate from a rigid application of the guidelines or by adding on categories of shared expenses.
The fact that most states have created, rely on, and indeed are gradually expandingdeviation procedures from statutory child support guidelines marks the beginning of a migration away from rigid formulas towards a greater use of itemizing and sharing certain categories of expenses. For this expanding list of add-ons, the parents must learn how to cooperate when managing how they will pay these expenses jointly. Currently, child support guidelines seem to view shared categories of expenses as only deviations or additions to whatever existing formula is applied. Instead, these deviations should be viewed as the core of a solution, an evolutionary change in child support law moving toward a greater emphasis on cooperation, similar to changes in custody law over the past ten to fifteen years.
More than twenty years of mediation experience demonstrates that parents can more easily and more cooperatively share the costs of raising children in two separate homes by abandoning mathematical child support formulas and re-framing the child support question from “how much money” the state requires them to pay or receive to “how they will share the costs” of raising their children in two homes in the future. The change is a logical extension of the movement in many states toward the adoption of parenting plan legislation, where the basic goal is focusing more on generating future cooperation between the parents. Asking a different question, together with using a joint Children’s Checkbook to manage the various expenditures made on behalf of the children, this new approach creates a process that will provide both cooperative and high-conflict couples with more tools to reach consensus. This approach could dramatically change the way parents resolve the question of child support, just as re-framing the child custody question dramatically changed the focus from good parent/bad parent to building parenting plans through the use of mediation – an approach which has resulted in greater flexibility of results and increased perceptions of fairness.
Finally, the article recommends that state legislatures recognizing the near impossibility of creating a universally fair child support formula might be well-advised to consider taking a significant step and adopt a child support law implementing Child Support Plans rather than taking another ten to fifteen years of small steps to come to the same conclusion.
- Existing State
Child Support Guidelines and Flawed Assumptions
Support Guidelines Today
There are many complaints about the child support guidelines, most of which seem to be from the public. A Google search of “Child Support Guidelines Criticisms” reveals many web sites that are vehement in their attacks on the guidelines system. Current child support laws are perceived as unfair, lacking in practicality and ease of calculation and most importantly, failing in compliance rates. The inability of existing child support statutes to properly serve divorcing and never-married couples is growing increasingly acute, as more parents follow equal or near-equal time sharing arrangements for exchanging their children. This trend has created more complex spending patterns on behalf of the children. Because guideline child support methods are seen as rigid and often unfair in their application, there have been many attempts to declare them unconstitutional; all have been unsuccessful.
There are three basic child support guideline models being used in the United States today. The Income Shares Model used by thirty-three states. The second guideline model, used by fifteen states, is the Percentage of Obligor’s Income (including two states which use a hybrid that is similar) model. Finally, the method usedused in just three states, Montana, Delaware and Hawaii, is the Melson formula.
The Income Shares model is now the most commonly used. It allocates an amount of support for the child using a percentage formula based on the parents’ pooled or combined income. In Minnesota after January 1, 2007, the determined child support amount is apportioned between the parents based upon their respective Parental Income for Calculating Support (PICS). The PICS calculates support by pooling the income of both parents and then determining a base amount of child support needed by the child. This amount is determined by applying a guideline table, which is an amount of basic child support that uses the United States Department of Agriculture’s Costs of Raising Children Studies, with marginal housing costs applied.
of Obligor Model
The Percentage of Obligor Model is the most simple and easiest to calculate of all the guideline models. This formula is used in nine states at the time of this writing, including Minnesota from 1983 until January 1, 2007. This model asks three questions: (1) how many children are there, (2) what is the obligor’s income, and (3) who is the less-time parent? The less-time parent, or the absent parent, as defined by the Family Support Act of 1988, is typically the parent who lost the custody battle, or who by the parent’s agreement will physically have the children for less time than the other and must send money over to the greater-time parent.
- Melson Model
Under the Melson Formula - the most complicated guideline model - the child support formula is applied to the income of the parents after first deducting the parents’ basic living expenses from each of their respective incomes. Although it is the most complex of the three models, it builds on the concept of the income shares model by also trying to factor in the number of children, child care, and extraordinary medical expenses instead of seeing child care and medical expenses as add-ons to the basic formula amount.
States Require that One Parent Pays the Other Parent
Every states’ formulas require one parent to be the obligor, who is defined as the absent parent in Congress’ originating legislation, and the other parent is seen as the recipient of money from the absent or custodial parent. Through an award of child support to the parent with greater time or lower income, there is a rebuttable presumption that such formulas are fair. In order to deviate from the formula, the court must make clear and specific findings stating the reasons for such deviations. Only in certain cases of equal time sharing and equal incomes have the formulas permitted no exchange of child support on the theory that each parent will simply pay for the cost items of the child or children when needed, and the statutes and case law are silent on the issue of who should pay for what.
Support Act of 1988
A common conclusion is that child support implies an exchange of money. This conclusion is supported by a reading of the entire Family Support Act of 1988, the original impetus for all state guidelines, which required all states to adopt child support guidelines that at a minimum satisfy the following:
- Take into consideration all
earnings and income of the noncustodial"
based on specific descriptive and numeric criteria and result in
the computation of the support obligation; and
- Provide for the child(ren)’s health care needs, through health
coverage or other means.
Notably, the beginning words speak of the “non-custodial” parent. Section 101 of the Family Support Act authorizing support withholding speaks of the “absent” parent. For those states that have adopted some form of Parenting Plan legislation, the concept of an “absent” parent runs contrary to the intent and expectations of such legislation. Parenting plan legislation moves away from the concept of absent parent, recognizing that both parents continue to parent in divorce. Indeed, if we have learned anything from our experience of moving from custody to parenting plans, we might want to recognize our new found enlightenment and move from the “absent parent concept” to the concept of “two involved parents” sharing the costs of raising their minor children.
The Family Support Act of 1988 also required that the guidelines formulas be based upon specific descriptive and numeric data. This requirement has resulted in an attempt to base a formula on economic data, such as the costs of raising children studies by the Department of Agriculture. Some formulas are tied to the Bureau of Labor Statistics Consumer Expenditure Studies (CES). One formula, Minnesota’s Percentage of Obligor’s income model, was created before the adoption of the Family Support Act by a retrospective compilation analysis of one jurisdiction’s averaging a group of judges’ rulings on child support over a six month period examining low income cases. The resulting averages fell into a pattern of ordering the non-custodial parent to pay 25% of net income for one child, 30% of net income for two and so on up to 49% of net income for five or more children.
- Take into consideration all earnings and income of the noncustodial"
- Income Shares Model
Regardless of which guidelines formula is used, as noted above, three flawed assumptions emerge. These three arethat child support (1) must be exchanged between the parents, (2) must be tied to time with each parent and not tied to who pays which children’s costs, and (3) must be a single mathematical formula. One could argue that a main contributing factor to all three flaws is continued reliance on the “absent parent” concept. Each flaw also results in negative consequences that make it difficult to establish fair methods of sharing the costs of raising children.
Support Must Be Exchanged Between Two Parents.
In all three existing statutory child support models, one parent always pays money to the other, and the guidelines formula used to establish how much money should be paid is tied directly to who wins the custody battle, or alternatively, who is the primary parent or residential parent. In the opinion of this author, this notion that children are provided for completely by one parent who receives money from an absent parent is flawed because it does not recognize both the monetary and non-monetary contributions of the non-custodial absent parent.
Days for Dollars Sets up the Custody Battle
When only one person is allowed to send money to the other, and especially when the amount of money sent is tied to who is more in charge, conflict inevitably arises over who gets to be in charge. This results either in a custody battle or, in its milder form, this assumption becomes the underlying fuel for a phenomena that has been called “trading days for dollars,” whereby couples fight over the exchange schedule because increased or decreased time with a child affects the amount of money the obligor will send. Sending money from one parent to the other, with no participation in the decisions about how it will be spent also creates mistrust, resulting in some states enacting legislation requiring the receiver of child support payments to account for how money is spent.
This problem of “trading days for dollars” and the fight to “win” the custody battel will continue to remain difficult when child support amounts are always tied to custody or who is the primary parent. This obligor-obligee transfer payment system is reminiscent of the military approach where a “supply sergeant” is designated as the one person who manages all of the children’s material needs and must collect money from the “absent parent” as defined by the originating federal legislation. Non-custodial parents rightly ask, “what about the money I spend on my children when they are with me, even though I send money to the other parent?” “And what if I start to spend more time with my children, don’t I get a break on my child support?’ This question was asked by Mr. Valento and the Minnesota Court of Appeals answered yes. Yet, the fight for time with the children still creates conflict, because most state child support guidelines, including Minnesota’s income shares model, call for a reduction in child support for the obligor when the obligor’s time with the children is increased past a certain point. In Minnesota, under the newly adopted income shares formula, there is a “Parenting Expense Adjustment” whereby any parent who has between 10% and 45% of the time with the children is allowed a 12% reduction in child support. This somewhat wide range was specifically designed to unhook the support from the schedule and encourage the obligee parent to be more willing to allow the obligor parent to have more time with the children. What mediator or judge hasn’t spent time listening to conflicted parents fight to the bitter end over whether there will be equal time-sharing or primary custody to one, or for that matter, whether there are going to be 12 overnights a month to Dad or 10 overnights per month to Dad when the child support amount statutorily awarded under the formula hangs on this determination?
Sergeant Concept (Absent Parent Model Assumes Inability to Cooperate)
One possible reason Family Law has relied exclusively on the obligor-obligee transfer of payment model is because it is mandated by the Family Support Act, and underlying the adoption of the Family Support Act was the need to collect money from fathers who were content to have the state support their children. The concept of an “absent” parent certainly does not assume cooperation between mom and dad. Indeed, traditional historical definitions of child support have not typically included both parents cooperating and discussing shared contributions towards their children’s need. Family law has traditionally analyzed the child support problem by first seeking to determine the proper level of child support that one parent pays to the other parent rather than asking about how support is shared and who should pay what for what items. It is difficult to find any commentators who question this basic theme of requiring a payment of child support from the parent who “loses” custody (or has less time with the children) to the parent who “wins” custody (or has more time with the children). Even Black’s Law Dictionary defines child support as “the money legally owed by one parent to the other for expenses incurred for children of the marriage.”
Perhaps because the traditional custody approach assumed that only one parent can be in charge of raising the children, the custodial-non-custodial hierarchy was created to eliminate the need to cooperate when one parent is vested with the most authority by being put in charge as the custodial parent receiving money for child support. It is easy to see how the absent parent paying money to the “supply sergeant model” occurred. There seems to be a common sense notion among most lawyers and other professionals trained in using the adversarial system, that if parents cannot cooperate enough to stay married, then they certainly cannot raise their children together after divorce. Therefore, it is best to put one parent in charge, including paying for the costs of the children. Reliance on the rigid notion that only one parent pays for the day-to-day expenditures of the children reinforces the idea that there is always a custodial parent who has more power and control over the children’s lives, and that there is always a visiting, non-custodial, secondary parent whose job is to send money over to help out. Such an approach fails to recognize that parents will continue to be parents after the divorce. They might be able to terminate their marriage relationship, but they will never be able to terminate their parenting relationship, and this is the principle that all parenting plan legislation is based upon.
This supply sergeant approach also fails to recognize and give credit to the contributions made by each parent, particularly the non-custodial visiting parent who might occasionally want to buy a pair of shoes or pay for a soccer camp registration. Some states have even given a “visitor’s credit” to the non-custodial parent who exercises visitation in an effort to solve this flaw. The notion that only one person may be trusted to pay for a child’s expenses is inflexible and can create competition for the child’s allegiance through the purchase of special items as a result of non-communication between parents about children’s expenses.
To be effective, parents must learn how to cooperate around parenting their children and the Minnesota Legislature recognized the need to involve both parents in decision-making when adopting parenting plan legislation that was designed to encourage both parents to cooperate around building the ground rules of a new parenting plan rather than fighting over who was in charge. Moreover, in what appears to be a precursor to creating a child support plan, in connection with the passage of parenting plan legislation, the Minnesota Legislature included a provision for allocating children’s expenses between the parents. Subd. 8 of the Minnesota Parenting plan legislation states (a): “Parents creating a Parenting Plan are subject to the requirements of the child support guidelines under Chapter 518 A and (b): Parents may include in the parenting plan an allocation of expenses for the child. The allocation is an enforceable contract between the parents.
Just as other states have adopted some form of Parenting Plan legislation, isn’t it now possible that we will begin to see other states adopt new child support statutes that encourage the use of mediation and individual custom-designed child support arrangements based on similar reasoning that sharing children’s costs may include methods other than just exchanging money from the custodial parent to the non-custodial parent? Perhaps the exchange of money is just too ingrained in our system to challenge its premises. Indeed, most mediators, some judges, and some practicing attorneys will attest to the fact that frequently, the expectation that parents cannot cooperate is a self-fulfilling prophecy. Moreover, we should learn from the success of mediation coupled with Parenting Plan legislation that gives people a process of learning how to cooperate in the new relationship of parenting which replaces the relationship of marriage. The research results of one study that compared litigating custody with building a parenting plan are astounding because parents were randomly assigned to either a mediating group or a litigating group. A follow-up with mediating parents up to twelve years later showed significantly more contact between the “absent” parent and the children when compared with the litigating parents. Perhaps it is time to ask the question, are they really that uncooperative, or is it something we are doing in our adversarial system that actually creates conflict?
- Trading Days for Dollars Sets up the Custody Battle
Support Tied to Time With Each Parent
“Time tells me little about who arranges for the children’s material needs.”
The second flawed assumption is that child support must be tied to time with each parent, and that specific expenditures made on behalf of the children by each parent are not important and will not be part of any formula. I submit that children’s expenses should be tied to who pays for the child’s costs because this is where the rubber hits the road. It is incorrect to assume that the parent who spends more time with the children will spend more money on them than the parent with less time. It is also incorrect to assume that parents will spend money equally for their children even if both parents have equal income and equal time with the children. The only categories of expenses that are tied to time are food and utilities. That is, the parent with less time will feed the children less and thus, will likely spend less money on the children than the more-time parent, and the parent with more time will likely spend more on the light bill and hot showers that increase heat and electricity bills. However, other than these two categories of food and housing , all other categories of costs related to the normal raising of children can be paid by either parent, regardless of the time that he or she spends with the children.
Minnesota’s new Income Shares formula still ties child support to the amount of time the parent spends with the child insofar as a different calculator is used when the child is with each parent more than 45% of time or with one parent less than 10% of time. Thus, the 45% threshold may produce resistance to requests for nearly equal time. After January 1, 2007 in Minnesota, the amount of time a parent spends with a child must reach a forty-five percent threshold before any downward adjustment is made. This means that when a parent has forty-five percent or more of the time with the children, that parent’s child support role changes from that of visitor; the parent is recognized as a contributor to the children’s costs and child support is further reduced. This same concept was recognized in a judicial modification of Minnesota’s previous Percentage of Obligor formula, through the two cases of Hortis v. Hortis and Valento v. Valento. These two cases laid down the same principle of reducing child support for the obligor based upon the consideration of added time. However, it did not rigidly set 45% as the threshold. The concept of these two cases called for the obligor to pay less child support until a 50-50 equal timesharing and equal incomes situation was reached, and it was presumed at that point that each parent would incur the same costs and would have the same ability to pay for these costs when the children were with each parent.
Canada’s child support model is similar to Minnesota’s. Canada, however, uses a forty-percent threshold that reduces the child support when a parent exceeds forty percent of the time with children when they are in a secondary parenting role. Carol Rogerson, writing in the Canadian Journal of FamilyLaw succinctly outlines the fairness question when a formula attempts to take into account the element of time.
The question of whether to allow for an adjustment to guideline amounts in cases of increased access and shared custody, and if so, how to structure such an adjustment, raises complex and controversial policy choices. Pushing in favour of some adjustment is a concern for fair and consistent treatment of payors who incur increased expenses during the time they spend with the child. There are two dimensions to the fairness claim. The first is fairness between the payor and the support recipient, who is arguably being relieved of some costs assumed by the payor. The second is fair and consistent treatment of the payor as compared to payors at the same income level who may not be spending any money directly on their children apart from the payment of child support. On the other hand, allowing such an adjustment raises many concerns. Increased time spent with a child does not necessarily entail increased spending on the child.
One Canadian judge, struggling with the 40% line in the sand, ruefully observed that using a formula tied to time tells him nothing about who is buying what for the children:
This crass focus concerning the number of hours spent told me nothing whatsoever about who bears the expenses of parenting. The 40% delineation offers no clue as to how expenses of housing, feeding, clothing and other such expenses usually subsumed in the regular expenses of children that are addressed by the table amounts in the Guidelines, are paid. Many access parents who have the children somewhat less than 40% of their hours still bear the expense of providing child suitable accommodation and must nevertheless pay the table amount. Time tells me little about who arranges for the children’s material needs.
Justice Eperhard, writing in the above case put his finger on another core piece of the puzzle that has always been ignored in the zeal to create the perfect formula. It is simply the notion that who pays for what is more important than time, than who has custody, than who is the primary parent, than who is the residential parent, or whether one has 38% of the overnights each month or whether one has 42% of the overnights each month.
States have Deviations or Reductions for Time
Most states allow an adjustment or deviation from the guidelines for greater time spent with the children. The assumption is that by having the children more of the time, there will necessarily be higher costs. Minnesota does not require documentation of greater expenses, just that the time be more than 45% for the reduction to occur. To find any discussion of who pays what, we must look to the unusual cases for guidance. Some courts, when reviewing high income cases have found it necessary to look at actual expenditures rather than simply time. 
One commentator, writing on cases of high income divorce couples, where the courts in several states have found it necessary to require deviations, observes a principle that is at the core of the Children’s Checkbook Method:
A support award that is based upon the financial means of the parent rather than the demonstrated needs of the child may also deprive the payor parent of a role in deciding the child’s lifestyle. As the court indicated in Harmon v. Harmon an award that was not based on express findings of the child’s actual needs would trespass upon the right of parents to make lifestyle choices for their children. As that court noted “although entitled to support in accordance with the pre-separation standard, a child is not a partner in the marital relationship entitled to a ‘piece of the action.’” Indeed, it has been suggested that determinations as to the child’s appropriate lifestyle are not purely mathematical determinations to be arrived at by application of child support guidelines but more properly issues of parental decision making, particularly where parents have joint legal custody and therefore should have equal input into decisions as to the manner in which the child is reared. Such a consideration may carry significant weight in the event that the parties’ spending habits during the marriage reflected expenditure patterns that were modest in comparison with the available income. However, a concern that the child not be “spoiled” by lavish spending on his or her behalf is less likely to be credible if the parent’s frugality is newly acquired. 
As will be discussed later, determinations as to the child’s appropriate lifestyle should be made by the parents, not by a mathematical formula that attempts to fit everyone into the same size shoe. Even in cases where the parents do not have equal timesharing, it seems appropriate for the parents to make decisions about how and how much to support their children. Indeed, in those instances where the parents make equal incomes and have equal time sharing, the state of Minnesota says they can support their children as they wish, without any exchange of child support monies between them.
- Minnesota’s Approach
Support Must Be A Single Mathematical Formula
The third and final flawed assumption underlying the child support guidelines is that they must employ a single mathematical formula that creates fairness. When this notion exists, there will be unfairness because it is not possible to create a single child support formula that will work for every one of the 1.2 million couples who divorce in the United States every year.Indeed, when one observes that there are four variables existing in all situations that create a need to address child support, then logic requires asking “how can one formula possibly create fairness among the variables?” The four variables are: 1) mother and father have differing incomes; 2) mother and father spend differing amounts of money on behalf of the children; 3) mother and father spend differing amounts of time with the children; and 4) over time, the costs of the children will change with the ending of day care, the starting of extracurricular activities, the arrival of driver’s education requiring increased car insurance, etc.
In any child support formula, income is seen as the driving force. Indeed, all guidelines formulas in the fifty states and Canada start with some income base as the coefficient to plug into the formula tables. Income figures seem to be the philosophical underpinning of formulas based upon trying to ensure that the children have a lifestyle similar to what they had before the divorce. Each state was permitted to devise its own formulas and many looked to other states that used the number of children and who has primary custody as the other two factors in establishing tables and formulas setting a proper level of child support. However, a quick analysis of the guidelines statutes shows a wide variation between the states in the formulas. One commentator even argues that the guidelines have become the province of the economic consultants. Notably absent in the guidelines of every state is the factor of expenses incurred on behalf of the children. These are not part of any state’s formula, but are dealt with in the deviations and add-ons to the basic guidelines amount.
However, one must ask that if the guidelines do have a safety valve in their recognition of categories of deviations, add-ons and other variables that permit deviation, then why not simply acknowledge that everyone is an individual case and let the couple create their own compete set of deviations, together with a method of sharing the total costs of all expenditures made on behalf of the children, regardless of whether their result is higher or lower than the guidelines in their own particular jurisdiction? This question will certainly be met with raised eyebrows and urgent gasps in many quarters, (particularly those who believe that certain types of people are prone to forsake their obligations towards their children) but do we not ask couples to create their own laws of fairness when there is equal time sharing and equal incomes? Do we also have an answer for them when they ask, why are the child support guidelines formulas so different when moving across state borders? And, are we really being fair when we allow high income parents, and those who have chosen equal time sharing and have equal incomes, to come up with their own method of sharing the costs of raising the minor children? Why not extend such expectations of rational behavior to all parents who must determine a method to share the costs of raising their minor children in two homes instead of one?
- Child Support Must Be Exchanged Between Two Parents.
Child Support Deviations – Signs of an Evolutionary Change in Child Support Law
In fact, we could be at the point where couples are expected to build Child Support Plans, just as they are expected to build a parenting plan. Each state’s procedures for deviating from the guidelines and continued reliance on and gradual expansion of these deviations can be seen as a beginning migration away from rigid formulas towards greater use of requiring couples to itemize and share certain categories of expenses that are either paid jointly by the parents or paid by one of the parents as a factor to consider in adjusting the amount of support that may be exchanged.  Although child support statutes seem to see shared categories of expenses as only deviations from or additions to whatever formula is being applied, I suggest that when shared expenses are seen as the core of a solution, the deviation principles are actually the beginning step in building a comprehensive Child Support Plan.
Indeed, a compelling argument can be made that all fifty states teeter on the verge of now being able to adopt Child Support Plan legislation. Minnesota and other states have adopted the use of parenting plans rather than custody battles, rejecting the notion that it is necessary to determine who is a better or worse parent which then provides one parent a higher level of ownership and control of the children. Under the parenting plan approach, the battle over better or worse parent is discarded and couples self-design agreements about schedules of exchanges, ground rules for conduct, methods of communicating and other agreements about the shared parenting of the minor children. Similarly, a Child Support Plan provides a workable model that allows divorcing parents to address the realistic financial needs of their children, and more importantly, address differences in expenditure levels for the children tied to each family’s history and desires.
- Child Support Guidelines Today
- Sharing the
Cost of Children Using the Children’s Checkbook Allows for Creating a Child
to Ask a Different Question that Creates Cooperation
Mediators have long known that there is great power in asking a different question. The form of the question asked influences how the issue or dispute is defined. Professor Morton Deutsch observes that “[c]ontrolling the importance of what is perceived to be at stake in a conflict may be one of the most effective ways of preventing the conflict from taking a destructive course.” Perhaps the reason the Children’s Checkbook has been successful with a variety of couples at Erickson Mediation Institute (EMI) is the fact that EMI asks a completely different question than the guidelines. While the guidelines formulas all ask a series of questions about who is the absent or less time parent, what is that parent’s or both parent’s incomes, and how many children are there, the most important piece of the puzzle is left unasked by the guidelines formulas. This missing piece is most importantly, what have you been spending on your children in the past and what can you afford to spend on them in the future, given the fact that you now must incur the cost of a second household? We must ask the parents how they will share the costs of raising their children in the future and in order to answer this question, we must know who will be paying for what items. Building upon Deutsch’s principles, it is possible to take the typical child support question and re-frame it from “How much do I have to pay in child support?” to “How can we share the costs of raising our children in the future so that it will be fair to both of us?” Thus, a mutual journey begins. In the task of answering the question, parents will learn new methods of cooperation. They will also have failures, but they will not view the task as a contest, where one side wins and the other side looses. They will rather begin to view the journey as a problem that must be solved. This new approach of creating a Child Support Plan welcomes and accounts for the inherent complexities that divorced and never-married parents face: they live in two separate homes, may have differing incomes, spend differing amounts of money on their children, and care for them differing amounts of time. Moreover, building a Child Support Plan acknowledges the need for and allows flexibility for parents to deal with the changes in children’s expenses, for example increased extracurricular or sporting activities and expenses associated with becoming a teenager.
For too long, we have assumed that the child support question could be simply answered by looking at incomes and time variants and creating a formula. As long ago as 1989, some courts recognized that the wrong questions were being asked. In an Idaho case, Justice Johnson’s Stockwell v. Stockwell concurring opinion showed that he understood the implications of asking the correct questions by recognizing that the focus and questions should be centered on the parent’s future decision making and not on ownership rights or time with the child. More recently, the Oregon Statewide Family Law Advisory Subcommittee reached a similar conclusion by observing that the need to frame family law questions in a future focus requires a paradigm shift in thinking.
Disputes in Family law are poly-centric and do not always fit into neat patterns. The Futures Subcommittee recognized the concept [of parenting plans] represents a paradigm shift in family law. “Plan is a very different word than “award”: plan is the future, award is the past; plan is collaborative, award is competitive; plan implies problem-solving, award implies a contest. The help attorneys and courts need to provide for families is to give them the knowledge and the skills to develop their own plans, not to provide “cookie cutter” plans.
To understand why we keep asking the wrong question, what I submit is that it is helpful to realize that how child support is paid is a factor in limiting our ability to make this necessary paradigm shift in thinking. In order to make this shift, we must acknowledge that there are really three methods for managing child support, not just one. First, child support can be paid from the absent parent to the other, but, second, it can also be paid by buying items directly for the children, or, thirdly, it can be paid by both parents to a checkbook that is then used to buy items or to pay for expenses for the children.
First, as discussed above, the guidelines support model always puts one parent in charge of buying items for the children. This method assumes that because parents cannot live together as husband and wife, they certainly cannot raise their children together and therefore must put one parent in charge of the children and their care, because after all, one of them is the “absent” or perhaps “more absent” parent. This method appears simple; it is the least complicated and supposedly the least conflict producing because the parents have no interaction other than money exchanging hands. Because the guidelines say nothing about what items the child support should cover, a complex system of deviations and add-ons has evolved. Moreover, when nothing is said about what the child support covers, the following may likely occur:
Son, I can’t possibly buy you that new 12 speed mountain bike you have been asking for. You’ll have to speak with your father, he earns three times as much as I do.” (Next time son is with dad) “Son, what is your mother doing with all of the money I send her, she gets $1,321 a month from me in child support. She should use it on you.
The second method of managing child support is for each parent to pay for items directly. Indeed, there is beginning to be statutory and case law recognition of some parts of the Children’s Checkbook principle. Parents can pay for items directly, or from a checkbook and not necessarily always be required to have the obligor send a formulaic amount of money over to the obligee who becomes the supply sergeant because we cannot trust them to cooperate. This method of direct payment of children’s expenses is beginning to be more frequently used by those couples who engage in approximately equal time sharing. It is also the principle announced in the Minnesota case of Valento v. Valento whereby the court declared that the higher income parent should send money to the other to help equalize the disparity in incomes. Yet the underlying assumption of the Valento case is that both parents will buy an approximately equal amount of food, clothing and other items used by the children because the children are with each parent equally. This is also the principle of the new Minnesota Income Shares Child Support Model effective January 1, 2007 in Minnesota. Under the new statute, there is no child support exchanged when there is equal income and equal time-sharing of the children. However, in order for couples to be sure that they are each purchasing about equal amounts of child related items, it is necessary to have some system of record keeping. One attorney familiar with couples using the checkbook reports that those who do not use a checkbook seem to have more conflict than those couples who use a joint checkbook for paying and managing shared expenses.
This second form of child support, recognized not only in Minnesota but in other states, is to share certain children’s expenses by paying these costs directly and then to adjust, reimburse, or compensate the other for fronting the costs. In the broad scheme of child support formulas, sharing payment for these costs such as day care expenses or shared medical support is not the central part of the core formula computation and paying for these items directly has been seen as add-ons or a deviations. With the use of a children’s checking account to create a Child Support Plan, all items that are deemed to be shared expenses are paid directly from the checkbook and either one or both parents uses the checkbook. Therefore, a third method is to pay child support to a checking account and the checkbook is the mechanism for sharing the children’s costs, much as several co-owners of a duplex may use one checkbook to track income and expenses of the operation.
Support Plan & the Children’s Checkbook
Although there are a number of forms that a Child Support Plan could take, this article recommends the use of a Children’s Checkbook as a tested and successful method of developing a Child Support Plan. Of all the methods of managing child support discussed here, a Child Support Plan and sharing the expenses through the use of a joint checkbook is the only method that resolves the flawed assumptions discussed above. Mediators have been using Child Support plans for many years. For two decades, parents mediating their divorces at EMI have used the Children’s Checkbook Method to calculate and share child support.
The idea for the Children’s Checkbook was originated in 1981 as a suggestion by EMI to parents adopting 50-50 time sharing. The Children’s Checkbook calls for each parent to contribute monthly amounts into a joint account that is then used by each parent to pay for all agreed upon, or court ordered, expenses, incurred on behalf of the children. It establishes support levels based on the actual needs of each family, rather than a one-size-fits-all approach.
Because the amounts placed into the joint Children’s Checkbook are tied to the unique and individual budget needs of the children, it allows the children to continue their standard of living as was established during the ongoing marriage. By unhooking the calculation of child support from the custody and/or visitation determination, the checkbook arrangement also solves the problem of trading days for dollars. By using a proportionate contribution most often based upon the gross incomes of the parents, the Children’s Checkbook Method can also embrace another principle well established in the law which is that child support should be based upon ability to pay and in those states with an income shares model, upon the abilities of both parents to pay. Finally, and most importantly, the checkbook method enhances cooperation by scheduling periodic reviews of the budget, obviating the need for constant motions to amend.
On balance, this approach does a better job of creating fairness, allows for a simplified method of modification, and creates a written record for the parties of their shared expenses that is automatically tracked through bank statements, all of which results in better compliance and more cooperation, goals that have previously eluded legislators, jurists and commentators of the current system. Because this joint account is shared and managed by both parents, it provides for the opportunity to not only create fairness, but to also more readily involve both parents in providing for the children’s needs.
Children’s Monthly Budget
Expense Item (Estimated Monthly Cost)
SeparatelyPaid by Mom Separately
Shared using Joint Checkbook
SeparatelyPaid by Dad Separately
Food and Groceries
Lunches at School
(Through Mom) 121
Uncovered Medical Expenses
Therapy & Counseling
Uncovered Dental Expenses
Gas/Oil Oldest Child’s Car
Maintenance & Repairs
Personal Care Items
EMI couples have helped refine the delineation between a shared expense and a separately paid expense not to be shared between the two parents. Much of this is common sense, but a search of other state statutes reveals that may states see these categories of additional expense as either added on to the basic child support amount paid or as a shared expense between the parties.
FOOD AND GROCERIES: Most often, food and groceries are not considered part
of the shared categories of expenses. Even when there is a great disparity in
incomes, the first task of the budget process is to ask both parents to
estimate what they spend for food on themselves and what they spend for food on
he children. Perhaps the reason parents see this cost not in the middle column
of shared expenses is that no records should be kept as to which items are
eaten or used by the children and which items are consumed by the parent. That
would be too difficult to track. In those cases where the children are eating
most of their meals at one home, parents can allow one parent to access the
checkbook for some agreed upon amount each month to supplement their food
costs. Of course, this would not be necessary if there were equivalent time
- CHILDREN’S LUNCHES AT SCHOOL: This is an easy category to consider shared
because it can be identified and parents usually pay for it at the beginning of
each week or each month.
- EATING OUT AND RESTAURANTS: For many families, this is a ritual of living in America. Couples uniformly have decided to designate this as a personal expense not part of
the Children’s Checkbook . No one expects to go to the other parent or to the
checkbook and say, you owe me two dollars for the four dollars I spent on the
children last weekend at the Dairy Queen.
- CLOTHING: Clothing has traditionally been viewed as a shared expense. Even for
couples who do not run the shared expenses through the checkbook, clothing, at
least the larger items, are generally seen as a shared expense. In Arkansas the cost of clothing is specifically listed as a reason for deviating from the
guidelines formula. In Indiana, a deviation from the child
support guidelines is permitted if the non-custodial parent purchases school
- MEDICAL INSURANCE: As of 1998, forty-two states already viewed medical
insurance premiums as an add-on to support guidelines, with the most common approach for
adjusting the formula being on a pro rata basis. If the family has medical insurance
coverage, this is a usually a deduction from their salary check. The amount
deducted can be noted here as a children’s expense to be shared
- UNCOVERED MEDICAL AND DENTAL EXPENSES:
eye care, therapy, counseling, and orthodontia are expense categories are
traditionally seen as shared expenses, not only in the Children’s Checkbook
process but also in Minnesota. The couple is asked not to predict what
these costs will be in the future, but to list a general level of family
medical expense needs based upon past experience. Some families rely heavily
on medicine while other families spend very little on this category of
expenses. Costs depend on a family’s level of health and access to medical
- PERSONAL CARE ITEMS: These items may include grooming products, cosmetics and
personal care products for teenagers, and other non-grocery items needed by the
children. Generally, this category does not produce controversy and most often
it is shared by the parents.
- HAIRCARE: This is also often seen as a shared expense. Running this expense
through the checkbook allows either parent to take the children for a hair care
appointment and pay from the joint checkbook.
- CHILDCARE: Not only do couples not take issue with sharing this expense, it is
also either a shared item or an add-on deviation in many states.
- EDUCATION EXPENSES: Tuition, books, supplies and other school costs can be
listed here in more detail. These are always seen as shared expenses.
- NON-SCHOOL CLASSES, ENRICHMENT, CAMPS: This category of expense has often
caused controversy in the actual implementation of child support in the legal
system. Costs of lessons, summer camp, dance and extracurricular activities are
not specifically addressed by most state deviations other than saying they may
be generally considered as grounds for deviating. In constructing the budget
jointly, parents are asked to decide first if the activity is a desired expense
and secondly what the cost is. Later, there will be a discussion about how the
expense is shared.
- SPORTS FEES: In the budgeting process, parents with children in sports and
extracurricular activities see this category as somewhat different than
enrichment and non-school classes. Activity fees charged by many schools may
also be part of this category.
- AUTOMOBILE EXPENSES: For those families that have teenage children driving
automobiles, all of the expenses related to the car such as gas, oil, repairs
and insurance can be listed here.
GIFTS: This line item relates only to gifts the children give to their friends
at birthday parties and other special times. It has not been used to include
gifts that the parents give to the children as that is seen not as a shared
expense, but paid separately.
- RECREATION AND ENTERTAINMENT: This category is seen as not part of the shared
account because it is too difficult to keep track of and it is part of each
parent’s discretionary parenting. This category does not appear in any of the
guidelines as a deviation or an add-on in any of the fifty states.
- HOUSING: Although this has typically not been a shared cost, in some cases at
Erickson Mediation Institute where one parent is staying in a costly home or
could not stay in home ownership without some shared help from the other
parent, the parents may decide to add this as a category of shared children’s
expenses. Interestingly, Georgia lists housing as a specific deviation.  Indiana lists this as a deviation
(presumably downward) if “both parents are in the military and have housing provided.” New Hampshire cites special
circumstances for deviating that include “economic consequences to either party
of the disposition of a marital home for the benefit of the child.”
Colorado lists a blanket reason for deviation: “Deviation is allowed where application of the guideline would be inequitable, unjust, or inappropriate.” Most states appear to have a general fairness deviation such as New York’s calling for deviation “if the amount is unjust or inappropriate when considering the financial resources of the parents and of the child.” Arkansas has a peculiar blanket deviation that to throws in everything except the kitchen sink. It says that “relevant factors [for a deviation] include: food; shelter and utilities; clothing; medical expenses; educational expenses; dental expenses; child care; accustomed standard of living; recreation; insurance; transportation expenses; and other income or assets available to support the child from whatever source.” Finally, Minnesota’s new income shares model lists deviation factors. The Senate author of the bill that created the new statute writes:
Section 17 of the new law includes a philosophical statement that “deviation is intended to encourage prompt and regular payments, and to prevent either parent or the joint child from living in poverty.” The author [of the bill] expects that this statement will send a message to courts that they should allow deviation in order to create fair child support orders.
After completing the task of building the budget, the parents have now answered the question of what it costs their particular family to raise the children. They next must determine how to share the costs as well as whether each of them is able to meet their combined living expenses when their personal budgets are added in. It is helpful when working with couples on this task to use a divorce planning software program to calculate their income, expenses and budget shortfalls. There are several available that are quite useful in helping couples view their entire cash flow picture. These software programs can also calculate the guidelines child support amount in their state for comparison purposes when discussing the use of the Children’s Checkbook.
- FOOD AND GROCERIES: Most often, food and groceries are not considered part of the shared categories of expenses. Even when there is a great disparity in incomes, the first task of the budget process is to ask both parents to estimate what they spend for food on themselves and what they spend for food on he children. Perhaps the reason parents see this cost not in the middle column of shared expenses is that no records should be kept as to which items are eaten or used by the children and which items are consumed by the parent. That would be too difficult to track. In those cases where the children are eating most of their meals at one home, parents can allow one parent to access the checkbook for some agreed upon amount each month to supplement their food costs. Of course, this would not be necessary if there were equivalent time sharing.
- Need to Ask a Different Question that Creates Cooperation
- Suggestions for
Changing Existing Child Support Statutes
the Child Support Plan
Cooperation (Mutuality and Ownership of the Decisions)
I urge that greater use of the Children’s Checkbook Method will lead to more cooperation and mutuality of ownership of the final result. Child support statutes should require mediation to be the first choice. If mediation fails, the couple can always ask for a judicial ruling. This approach would begin to eliminate unhealthy conflict and positional bargaining arguments so that the child support arrangements are driven more by actual numbers and by family choices rather than by which interpretation of a formula prevails. Or, as one commentator has observed in support of settlement as opposed to relying on court rulings for these intimate family decisions:
Through individually adaptive solutions in settlement we may see the limits of law and explore avenues for law reform. Settlement (and its sometime rejection of law) could just as easily be seen as a democratic expression of individual justice where rules made for the aggregate would either be unjust, or simply irrelevant to the achievement of justice in individual cases. Settlement is, thus, not “unprincipled,” but may be seen as aquestioning of particular principles or the application of different individually adaptive principles.
Indeed, when parents are asked to jointly create a budget for what they believe they will spend on the children in the next twelve months, they are essentially designing their own deviations each time they decide what they can afford for their children and what they want their children to have. Jim Coogler, the Atlanta attorney widely credited with being the first to create a structured process of divorce mediation, often said to couples in the mediation room, “I want to help you create your own law of fairness.” He also found in his early work with couples that when he assigned them a joint task to complete, they would engage in the joint effort and forget about their differences. When couples are engaged in the joint task of discussing fairness and they are busy determining the amount of money they have to spend on their children, they are building trust and fairness. When couples are in the process of preparing for a temporary hearing, they are more likely to feel as if they are in an adversarial process and are less likely to recognize that because they are aligned together for the duration of the children’s minority, they must find a way to cooperate.
The Oregon Futures Commission recognized that when the focus of the task is changed from finding an “award” to creating a “plan,” a paradigm shift occurs. This shift in thinking is created by redefining the problem in a more future-focused manner that requires a joint effort to solve the problem. Perhaps other states could take the simplified approach that Tennessee takes with its parenting plan legislation and require that within 30 days of filing an action for dissolution, the parents must submit a proposed Child Support Plan (together with their proposed parenting plan) and if there are differences in the plans, the parties will be referred to mediation.
Child support statutes should take into account the actual specific costs of child-related expenses (sometimes referred to as ‘the needs of the children’) rather than relying upon outdated or generalized national data about average costs of raising children. In a curious backward way, the courts do take into account the cost needs of the children when a rote application of the guidelines formula to very high income parents results in unfair and preposterous child support amounts, sometimes referred to as the “three ponies rule.” If high income parents are permitted to argue that the guidelines formulas infringe upon their right to “direct the lifestyle of his or her children,” then why shouldn’t all parents be permitted and indeed encouraged to engage in the same discussion about the level of funding that their children need or require?
In addition to allowing each family to decide for itself the level of child related expenses, greater use of the Children’s Checkbook would also direct which parent pays for which expenses of the children. This approach can take into account differences in housing, when, for example, in mediation, parties will frequently decide that the one parent should stay in the family home, even though that home is quite expensive and requires a joint sacrifice to be made by both parents. It is doubtful that judges could really “deviate” enough from the guidelines in order to take into account the need for this sacrifice. This is actually a decision that must be made by the parents.
Furthermore, in order to prevent confusion and to lessen conflict, it would be helpful if all couples getting divorced took some time to discuss exactly what items and at what level of costs the recipient of child support should be expected to purchase on behalf of the children. As more and more parents are engaging in equal or near equal time sharing and as men’s and women’s incomes reach more equivalency, the checkbook method assists couples in being clear and specific about how they will equally share the costs of raising the minor children.
For almost all parents who experience differing incomes, unequal time with the children, and dissimilar purchasing patterns for the children, allowing parents to clarify spending patterns through the use of the Children’s Checkbook would also likely reduce the number of post decree motions to change child support.
- Encourage Cooperation (Mutuality and Ownership of the Decisions)
of the Checkbook Model - Desirable Goals that the New Method Accomplishes
- No More Trading Days for Dollars
The Children’s Checkbook Method disconnects the child support calculation from the custody arrangement and the problem of trading days for dollars is eliminated. In other words, it does not matter whether one parent is the visitor, or the physical custody parent, or whether the parties are calling their arrangement a shared parenting plan, joint custody, split custody, sole custody, or whether the schedule is 50-50, 60-40, or 80-20 with each parent. The Children’s Checkbook Method recognizes that the only expense that is really affected by changes in the schedule is the number of meals provided by each parent (and perhaps in some cases the electricity bill from kids leaving lights on and the water bill because of long showers). Otherwise, all of the other expenses remain constant and can be paid by either parent. It becomes simply a matter of determining who is going to pay for which items needed by the children and what these costs are. When they are paid through a checkbook mechanism, the real discussion can then center on what can be afforded and how much more the higher income parent should be contributing to these expenses. In most cases where couples are using and being successful at the checkbook method, the parents contribute to the checkbook on a proportional basis according to their gross or net incomes.
The checkbook method allows for and encourages more participation from both parents and does not allow for a slide back into the totally discretionary situation that the guidelines were determined to avoid. Just as the parenting plan approach adds much more detail to the typical one sentence custody award, the Children’s Checkbook Method provides for a more comprehensive approach that also gives parents an easy record to review when modification is needed. When both parents participate in building the Support Plan, compliance with the final agreement will likely increase because the parents participated in designing the agreement themselves. Use of the checkbook allows for the lower income parent to fully participate in the purchases of items for the children rather than saying, “You will just have to get that from your mother, she makes more than I do.”
Parents using the checkbook method can readily see where the funds are being spent. There is no need to keep track of and exchange receipts because the checkbook automatically records everything for the parents. The whole system is open and transparent to both. As to the obvious concern that one person will use the checkbook approach to control or harass the other parent, many mothers (who will often take on more of the purchasing of items for the children) report that the use of the checkbook “really proves how expensive it is to raise children.” 
Courts could take the posture of the Texas court in Bailey v. Bailey  and supervise the use of the checkbook. They could also require parents to retain the checkbook for examination by the court in any dispute. However, more likely, if the parents cannot maintain cooperation around the use of the checkbook, the language as set forth in the Appendix suggests that they will simply discontinue the method and follow the existing child support statutes in force at the time they stop using the checkbook.
The language used in the application of the checkbook method suggests that parents share the total agreed-upon costs of the children through a proportional sharing of the total monthly costs using gross income figures. Parents are expected to exchange income verification each year (usually W-2 statements are sufficient or some other verification mechanism such as tax returns) and as incomes change, the pro rata contribution to the checking account will change.
- No More Trading Days for Dollars
- Implementing the Child Support Plan
It is time to reject the notion that we might find the proper child support payment level through application of a perfect formula. Rather, let us use our energy and resources to encourage parents to create Child Support Plans. We must recognize that, even when deviations from the formula are meant to take off the rough edges of rote application of the guidelines tables, fairness is always elusive, particularly when someone other than the parents makes such important decisions for them. If the impetus for parenting plans was a paradigm shift away from fighting over who was a better or worse parent, we should likewise begin to frame the child support question in a similar future-focused fashion that requires cooperation to answer the question. We should ask parents to jointly build Child Support Plans, and we must also give them the tools to accomplish this task. One of the tools is the language found in the Appendix that sets forth language developed by Erickson Mediation Institute during the past 30 years of practice. Divorcingcouples can be successful at sharing the costs of raising children in two separate homes when guided through a process of first setting the amount of each category of children’s costs and then negotiating the method of sharing these costs.
Realistically, a Child Support Plan would be no more difficult for courts and hearing officers to administer than the current task concerning parenting plans. However, most parents would need the assistance of a neutral mediator, much as they are doing now with the creation of parenting plans. Such a re-focusing of the statutes would recognize the complexity of the task and would allow each family to find fairness on its own with the guidance of a mediator. Just as the statutory movement towards parenting plan legislation was recognition that cooperation was better than adversarial posturing, this article argues that the use of a Children’s Checkbook approach is consistent with the family court’s emphasis on the greater use of mediation to encourage post-divorce cooperation. The use of a Children’s Checkbook is also consistent with each state’s slow movement towards creating more shared categories of costs.
View Child Support Plan & Children's Checkbook: Sample Language
View all footnotes for this article.