Everything you need to know about Child Support in the state of Delaware. Updated 2020.
‘Delaware child support formula’ refers to a set of complicated guidelines that on the basic level, require parents, whether married or unmarried, to support their kids.
Alimony in Delaware is awarded per the guidelines unless one party can prove that the guiding principles are unjust or inappropriate. Additionally, the court does not assume any responsibility for the accuracy of the child support amount determined by the use of the state’s calculator.
In other words, this is going to be a bumpy ride, so lawyer up or consult with a family court attorney for a clearer picture of the potential outcome of your case.
How does Delaware Calculate Child Support?
Established under Family Court Civil Rule 52 (c). The ‘Melson formula’ is a variation of the Income Shares Model that the state of Delaware uses to calculate child support. The model considers the incomes of both parents and the needs of the child to arrive at a monthly figure. Additionally, the system expects the custodial parent to request a court order for child support after which the DCSS, depending on circumstances, may order genetic testing to establish paternity then order payments.
Melson’s formula is based on three fundamental assumptions:
- A child’s needs must be taken care of before the parents may retain any additional income.
- Non-custodial and custodial parents are entitled to keep a minimum amount of income for their basic needs.
- If the primary needs of the parents are met, but there is additional income, then the child or children are entitled to a share.
Also, under Delaware child support guidelines, both parents must support a child until he or she turns 18. However, if the child is still in high school, payments may continue until 19. Accordingly, the considerations taken into account when calculating child support are:
- Support for other children.
- Private school expenses and daycare.
- The number of average annual overnights.
- All earnings and incomes of both parents.’
- Health insurance, pension plans, union dues, disability insurance, and similar expenses.
Although the formula can get convoluted, the important regulations to remember are:
- The court will only use the formula if it finds that the results are in the best interest of the child.
- Income will be attributed to either party if the parent is unemployed, is unemployed voluntarily, underemployed (not working to one’s capacity), failure to provide sufficient income, and when mediation fails.
If you are underemployed or unemployed voluntarily, the court may use the Department of Labor wage survey data to estimate your earning capability. Typically, the courts presume parents to have an earning capacity of at least $1603, unless you are incarcerated, or medically disabled.
Delaware Child Support Changes: Adjustments made to Shared Equal Placement
The number of annual overnights the child(ren) spends in each household determines shared equal placement. For example, shared placement occurs when the number of overnights is at least 164 per year.
The caveat here is a failure to contribute to shared incidental expenses may lead to denial of shared placement status.
If you are in the military, the income cost of living stipends paid to offset assignment in high-income locations, and allowances for clothing are excluded from income. On the other hand, quote, the “service of a term of incarceration that exceeds one year may be considered as evidence of a diminished earning capacity unless.”
- You are incarcerated for nonpayment of child support.
- The parent has independent income, assets, or resources.
Remember, incarceration is not a ground for modification in Delaware.
How to Modify Child Support in Delaware
Under Delaware child support laws, modifications are only accepted if it has been two and a half years since the child support order was issued. Any modification made before this period elapses must prove substantial changes in circumstances.
Normally, when one parent files a petition for modification. Mediation is used as a primary remedy, however, if the parties don’t reach an agreement, the judge or family court commissioner will make one on their behalf.
This raises the question.
Can you go to Jail for not Paying Child Support in Delaware?
If you fail to pay child support in Delaware, the custodial parent or DCSS may file a petition for arrears. Consequently, this may mean garnishment orders, thus, the amount will be collected directly from your employer or source of income. The reason you might go to jail is, in Delaware failure to pay child support for four months is considered a federal misdemeanor. The issue escalates into a federal felony if you stop paying for 8 months.
At this stage, the courts can take collection actions such as:
- Professional, occupational, business, recreational, and driver’s license suspension.
- Intercept tax refunds (state/federal).
- Credit bureau reporting.
- Lottery winnings seizure.
- Private collection agencies may go after the delinquent parent.
- Unemployment compensation may be withheld.
To find delinquent parents, the DCSS uses financial institution data match, tax returns, and the State Directory of Hires. The ‘good news’ is, Delaware, discontinued the use of shaming tactics such as the WANTED poster. But that doesn’t free you from your obligation and it doesn’t mean the DSCC can’t find you.
Can you go to jail for not paying back child support in Delaware?
Note that there is no statute of limitations in the determination of paternity in Delaware. Also, state law makes no provisions for interest charges on retroactive support, missed payments, or adjudicated arrears.
That said. In Delaware, arrears are collected through the withholding of benefits, bank levy, wage garnishment, or other methods including jail time.
In summary or to simplify, the child support process in Delaware works like this:
- The custodial parent/petitioner files an appeal for child support at the DCSS.
- Respondent/non-custodial parent MUST be served with the petition within 20 days.
- The case is scheduled for mediation.
- From step three, two eventualities might occur, one, the parties might reach an agreement. If not,
- A court hearing is scheduled. `
On top of that, in most cases wage attachment is ordered.
What if I’m not Allowed Visitation, Must I Continue to Pay?
Delaware child support laws consider visitation and child support as two separate issues. Consequently, if you are disallowed visitation, you can file a separate rule to show cause petition to enforce the order.
Generally speaking, there are six ways to pay child support in Delaware, that is:
- check or money order
- Touch pay kiosks.
- Direct deposit
- US bank ReliaCard.
What if I am Unable to Pay Child Support during the Pandemic?
On 4/21/2020, DHSS issued a statement part of which reads. “The Delaware Division of Child support understands that it may be tough to pay your court-ordered child support during these difficult times of the COVID-19 pandemic. Please remember that child support is a court-ordered judgment and we cannot stop your order. While the decision is sympathetic to your situation, we will try and help as much as possible during these difficult times.”
The point is, if you have recently lost your job or income, contact the courts or DCSS and inform them about your situation. This may keep arrearage from piling.
When does child support end in Delaware?
Under Delaware child support laws, payments end when the child is 18 or after graduating high school. That means you may have to pay an extra year. However, if the child is disabled physically or mentally, payments may continue indefinitely depending on the court order.
Payments may also be terminated if the child is emancipated.
Currently, the emancipation of minor laws does not exist in Delaware. Therefore, emancipation is decided on a case by case basis.
To be eligible for emancipation in the golden state, the child must demonstrate to the court that he or she is:
- Financially stable (not relying on parents for food and shelter)
- Lives independently from his/her parents
- Is at least 16.
All in all, Delaware child support guidelines can get confusing because issues are solved on a case by case basis. So, talk to a family court attorney near you today!
More Delaware Laws