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As divorce lawyers in Charleston, South Carolina<\/a>, we are frequently asked questions about the state\u2019s child support laws. In this article, we explain what child support is in South Carolina, how it is calculated, the circumstances when the family court may order more or less than the child support guidelines, what happens if you don\u2019t pay child support, and more.<\/p>\n Child support is calculated based on formulas and tables created by the Department of Social Services (DSS), which are called the \u201cSouth Carolina Child Support Guidelines<\/a>.\u201d The child support calculation is based on several factors:<\/p>\n After consideration of these factors, the total child support obligation is divided between the parents in proportion to their income. When both parents have custody of one or more of their children, the \u201csplit custody\u201d guidelines apply. In cases where a parent has the children more than 109 overnights, the \u201cshared custody\u201d guidelines may be applied. If you are trying to calculate a potential child support obligation, DSS has created a South Carolina Child Support Calculator that you can access by clicking here<\/a>. Please note that DSS\u2019s child support calculator gives an estimate and not a precise calculation.<\/p>\n Under certain circumstances, the family court can set child support at an amount that is different from the Child Support Guidelines. Deviation from the Guidelines is the exception and not the norm. Here are the factors a family court considers in deciding whether to deviate from the Guidelines:<\/p>\n The family court has the discretion to consider other factors not listed here. For example, if the custodial parent relocates to another state, and the non-custodial parent will have substantial costs in traveling and lodging to spend time with the children, then the family court may reduce the non-custodial parent\u2019s child support payment.<\/p>\n If you don\u2019t pay your court-ordered child support, then the consequences can be very severe. Some of the penalties for nonpayment of child support include:<\/p>\n Also, If the supporting parent doesn\u2019t pay court-ordered child support on time, then the family court can order that parent to pay via wage withholding and\/or through the family court. If payment is made through the family court, then an \u201cadministrative\u201d charge is tacked on. At present, the administrative fee is 5%.<\/p>\n If a parent is paying child support through the court and falls behind, the clerk of the family court will issue a \u2018bookkeeping\u201d rule to show cause. In a rule to show cause, the parent must appear before the family court to show cause why they shouldn\u2019t be held in contempt. In many instances, the family court will place the parent in jail until they can purge themselves by paying all of their support. Specifically, if a parent is found to be in contempt of court, that parent can be sentenced to up to one year in jail, fined $1,500.00, ordered to complete 300 hours of community service, or a combination of all three penalties. For more information regarding contempt in family court, please click here to read our article<\/a>. If the parent is paying child support directly to the other parent, and the parent falls behind, then the other parent can file for a rule to show cause just like the clerk of court does fir \u201cbookkeeping\u201d purposes.<\/p>\n If a parent claims the other has failed to support the child, then the burden of proof will turn on the other parent to show that he or she did support the child. For this reason, giving the custodial parent cash (or items such as diapers) without getting a receipt or acknowledgment via text or email from the other parent exposes the non-custodial parent to risk that the court won\u2019t later acknowledge that support. We\u2019re not saying that a non-custodial parent shouldn\u2019t do things like dropping off diapers, clothes, or toys at the other parent\u2019s house. We\u2019re just emphasizing that if it ever ends up in court, the other parent might not acknowledge what has been done. The non-custodial parent should document it if he or she can.<\/p>\n Yes. Section 63-17-310 of the South Carolina Code of Laws<\/a> states that the family court has the authority to modify child support at any time if a parent proves that there has been \u201ca substantial change in circumstances\u201d or \u201ca substantial change in the financial ability of either party.\u201d Overall, there are three factors the family court considers in deciding whether there has been a change in circumstances:<\/p>\n For example, if the child becomes disabled, the additional cost of medical treatment may be considered a substantial change in circumstances. As another example, if a parent is involuntarily laid off from work, or they become disabled and are no longer able to work, that may be considered a substantial change in the parent\u2019s financial abilities.<\/p>\n Yes, but claims for retroactive child support are uncommon under South Carolina law. Back (retroactive) child support means you are seeking child support going back in time before there was a court order to pay support. In South Carolina, retroactive child support is the exception to the norm, but there are cases where the family court has awarded back child support. Our supreme court has decided that a family court judge has the discretion to award retroactive child support. For example, in McSwain vs. Holmes<\/span><\/a>, our supreme court noted that a family court judge can award retroactive child support. However, the court did not grant the mother\u2019s claim for 3 years of support because it \u201cwould constitute a substantial aggregate amount which the husband would be unable to pay in a lump sum.\u201d As another example, in Major v. Major<\/a><\/span>, the court awarded 16 months of retroactive child support. As a final example, in Sutton v. Sutton<\/span><\/a>, the court awarded retroactive child support dating back to a month before the claim for support was filed.<\/p>\n If you wait too long, your claim for retroactive child support may be denied. There is a legal term called \u201claches\u201d that prevents people from doing things because they wait too long without an excuse for doing so. Laches sometimes can apply in retroactive support situations. In a case where there a parent waits a long time to ask for child support to start or increase, a court becomes more likely to apply laches and not allow retroactive child support or to limit how far the parent can go back. For example, in Hallums v. Hallums<\/a><\/span>, when the child turned twenty-four, the mother sought sixteen years of retroactive child support. The court decided that, under the doctrine of laches, the mother waited too long to bring the claim for back child support.<\/p>\n However, if the court ordered child support in the past, and the parent receiving support waits many years to enforce the court\u2019s order, the court will NOT apply laches. In other words, the parent who is behind in their court-ordered payments will just get further and further behind. Also, our appellate courts have expressly ruled that the statutes of limitation, which bar certain civil actions, do not apply in child support cases or in claims for paternity.<\/p>\n Yes, but only under special circumstances. In Harris v. Harris<\/a><\/span>, a mother brought a claim for a retroactive increase in child support after she learned that the father earned $400,000 a year for several years instead of $48,000 per year as he previously claimed. Our supreme court decided that retroactive child support increases are permissible in \u201cspecial circumstances\u201d to prevent a \u201cserious injustice.\u201d<\/p>\n The answer depends on the facts of each case. For example, in Blackwell v Fulgum<\/span><\/a>, a mother unilaterally reduced her court-ordered child support payments after the oldest of two kids turned 18 and graduated from high school. The father sent letters to the mother telling her to go through the attorneys or go to court. The mother ignored the letters, and after 18 months, the father filed a contempt action (also called a Rule to Show Cause). The family court held the mother responsible for the payments that accrued from the time the child turned 18 until the mother finally filed her case for a reduction.<\/p>\n However, in Hopkins v. Hopkins<\/span><\/a>, the court ruled that a father was entitled to reimbursement of overpayments of child support because, at the beginning of the case (at a temporary hearing) the father sought to stop his child support payments, but wife the mother asked the court to continue payments with understanding that if father was legally correct, then child support would be adjusted at the end of the case.<\/p>\n Yes. In Justice v. Scruggs<\/span><\/a>, the court held that \u201ca parent is entitled to credit on his child support\u00a0payments for disability benefits paid for the\u00a0support of the children.\u201d The same is true for social security benefits received on behalf of a child.<\/p>\n Generally, the parent who has custody of the children for a greater period of time within the tax year will be allowed to claim the exemption for their children Claiming an EXEMPTION for a child ISN\u2019T the same thing as claiming a child tax CREDIT for a child which allows a taxpayer to claim a credit for expenses paid for the care of children under the age of 13. If the parents had the children for an equal period of time during the tax year, then the parent who earned more money will be allowed to claim the children.<\/p>\n South Carolina Family Courts may give the child tax exemption to the non-custodial parent. However, there has not been much guidance from South Carolina appellate courts as to what circumstances would prompt the family court to do this. For example, if for some reason the custodial parent would benefit little from the exemption, but the non-custodial parent could benefit from the tax break, then perhaps a South Carolina family court judge would reallocate the tax exemption for the children. At the same time, the family court judge could, in theory, increase the amount of child support to make up for the custodial parent\u2019s loss in net income from not being allowed to claim the children on their taxes.<\/p>\n Sometimes the issue of which parent gets to claim the children on their taxes arises in the middle of a case. For example, a judge at a temporary hearing may award custody to one parent, or at least award joint custody but give one parent greater than 50% of the overnights. However, many temporary orders do not address the tax exemption. In this situation, the IRS accepts the return of the parent who files first and rejects the return of the parent who files second, even if the parent filing second had a better legal claim or need for the exemption. We caution non-custodial parents against claiming their children this way because you could be violating IRS rules and you may cause yourself costly problems in family court.<\/p>\n In some instances, a parent may move out of South Carolina to avoid being brought before the family court for contempt proceedings. However, if a parent moves away to avoid child support, then they may be subject to the Deadbeat Parents Punishment Act of 1998 (DPPA) which is a federal law designed to punish parents who move across state lines in order to avoid child support payments. Under the DPPA, a parent can be liable if the parent:<\/p>\n The punishment for an offense under this law can be up to six months in jail for a first offense and two years in jail for a second offense. Additionally, the parent must also pay all of their unpaid child support.<\/p>\n Perhaps one of the most unfortunate situations is when a parent falls on tough financial times and can\u2019t make their regularly scheduled child-support payments. In this situation, the parent finds themselves between a rock and a hard place. They can\u2019t afford to hire an attorney because they don\u2019t have enough money, and yet they need to go to family court to ask the court to reduce their child support payments. Nevertheless, being proactive is the best way to keep from being thrown in jail for falling behind on support. In the end, it is better to fall behind on credit card or installment payments and use that money to either catch up or hire an attorney than to face a rule to show cause and possible jail time.<\/p>\n If a parent fails behind, they can petition the family court to do one of two things. First, they may ask the court to place them on a payment program to allow them to catch up over time on their arrears. If the parent\u2019s financial situation has taken a more permanent turn for the worse, then they can petition the court to reduce their support obligation based on a \u201cmaterial change in circumstances.\u201d In many cases, simply showing a loss of income isn\u2019t enough to reduce support. The parent must also show that they have done all they can to reduce their living and personal expenses to try and meet their current child support obligation.<\/p>\n The answer is yes, you can still visit with your child. In South Carolina, visitation is an entirely separate issue from child support obligations. In other words, a parent who fails to make child support payments may still exercise their visitation rights, and the custodial parent may not restrict access. The right to receive support rests with the child, and neither parent may use support to control or punish the other parent.<\/p>\nWhat is Child Support in South Carolina?<\/h2>\n
How is Child Support Calculated in South Carolina?<\/h2>\n
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Can the Family Court Deviate from the South Carolina Child Support Guidelines?<\/h2>\n
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What Happens if I Don\u2019t Pay My Child Support in South Carolina?<\/h2>\n
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Can You Modify Child Support in South Carolina?<\/h2>\n
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Can You Get Retroactive (Back) Child Support in South Carolina?<\/h2>\n
Can You Retroactively Increase Child Support in South Carolina?<\/h2>\n
Can You Recover Overpayments of Child Support in South Carolina?<\/h2>\n
Is a Parent Entitled to Credit on Child Support Payments for Disability Benefits Paid to Support a Child?<\/h2>\n
Who Gets the Child Tax Exemption in a South Carolina Divorce?<\/h2>\n
What Happens if a Parent Moves Away from South Carolina to Avoid Child Support Payments?<\/h2>\n
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How Does a Parent\u2019s Financial Hardship Affect Child Support Payments in South Carolina?<\/h2>\n
Can I Still Visit With My Child If I Don\u2019t Pay Child Support in South Carolina?<\/h2>\n
Is Failing to Support a Child a Crime in South Carolina?<\/h2>\n