Attorney Cheryl Arakaki joins producer/host Coralie Chun Matayoshi to discuss what is child support and how it is determined, whether the amount of child support can be modified, how payment is made, what happens if your ex stops paying child support, and whether child support orders can be enforced outside of Hawaii.
Cheryl Arakaki is a family law attorney with over 2 decades of experience. In addition to private practice, she teaches Family Law, Introduction to Hawaii’s Legal System, Torts, Advanced Torts, and Legal Research and Writing at Kapiolani Community College’s paralegal program and currently serves as the Secretary for the American Inns of Court, James S. Burns Aloha Chapter mentoring the law students at the William S. Richardson School of Law.
Q. Whenever a marriage ends in a divorce, it’s way stickier emotionally and financially when minor children are involved. What is child support and how is it determined?
Child support is a financial obligation created by a court order issued by the Family Court or an administrative order issued by the Child Support Enforcement Agency which falls under the Department of the Attorney General, State of Hawaii. All parents have a legal duty to support their minor children and, in some situations, their adult children. Child support is calculated using the Child Support Guidelines Worksheet. This Worksheet uses a mathematical formula based on each parent’s monthly gross income, cost of childcare expenses and cost of health insurance costs for the children (excluding the parent’s cost), and it is generally ordered absent exceptional circumstances that warrant deviation from the Guidelines. The Worksheet allows for 3 different types of calculations. These calculations are based on the number of overnights the child spends with each parent under the custody arrangement. The calculations are based on: 1) Joint physical custody timesharing; 2) Extensive visitation timesharing; and 3) Sole physical custody timesharing. This is what can cause parents to fight over custody of the child.
Deviation from the Guidelines Worksheet calculation is allowed IF there is a finding that “exceptional circumstances” exist. A parent’s debt and expenses are not “exceptional circumstances.” A parentʻs support for another child from another relationship is considered, however, a person may be garnished up to 70% of his or her net income (which is according to a table in the CSGW) and if the child support does not exceed the 70% net, then support for other children is not an exceptional circumstance. There is a list of items that are not considered exceptional circumstances in the Child Support Guidelines. The Guidelines may be found on the Hawaii Judiciary’s website at https://www.courts.state.hi.us/child-support-guidelines. With the new 2024 Child Support Guidelines, parents are now able to agree to an amount either higher or lower than the Worksheet calculations. In the past, parents could not agree to an amount lower than the Worksheet calculation.
Q. Can the amount of child support payments ever be modified?
Yes. A request for modification of child support may be done every 3 years either by filing a motion with the Family Court or submitting a request for modification through the Child Support Enforcement Agency. A parent may also request a modification of child support if his or her income has an increase or decrease of 10%. This may be difficult for those who work in occupations that may have short down time of employment such as construction workers or people on TDI, because their child support obligation continues and any modification would be done at a later time and it may be retroactively modified, but only to the date of the motion or date of the submission of the request for modification. It is not modified in live time when the Obligor incurs the lower pay.
Q. How are child support payments made to the other party?
When an order for child support is issued, The Obligee can always elect to have the Child Support Enforcement Agency collect the child support though garnishing wages by contacting the Child Support Enforcement Agency. If the Obligee elects this, a garnishment order called an Income Withholding Order is also issued by the Family Court or the Child Support Enforcement Agency (CSEA). These orders direct a person’s employer to withhold the amount of child support from the payor’s pay checks.
Another way for child support to be paid is through “direct payment” from by the Obligor to the Obligee. To proceed by direct payment, the child cannot be receiving any type of government assistance such as welfare. When electing the direct payment method, it is important for the Obligor to keep track of payments made so that the Obligee cannot say that the child support was not received. Some people use VENMO, CASHApp and other people have their bank automatically transfer the payment into the other person’s bank account. This way there is a record of the payments made and received.
Q. What happens if the Obligor stops paying child support?
If a person stops paying child support, it could be because the Obligor is no longer employed at the job where paychecks are being garnished and, in that instance, a new Income Withholding Order must be issued for the new employer and sent to the new employer for garnishment. It could also mean that the payor did not earn enough during that pay period for the employer to garnish the payor’s paycheck. By law, the Obligor’s paycheck can only be garnished up to 70% of the Obligor’s net pay. Or the Obligor could have lost their job and become unemployed. If the Obligor is receiving unemployment benefits, child support may be garnished from the Unemployment Insurance Office.
If the Obligor’s circumstances change that reduces his or her income, it is important to either file a motion in the Family Court or to request for a modification of child support at the Child Support Enforcement Agency. What people do not realize is that the child support order is ongoing prospectively, so if the Obligor does not modify the child support amount, the old amount is being ordered each month. The only retroactive modification is to the date of the filing of the motion or date of the request for modification.
If an Obligor incurs a past due amount, which is what we call an arrearage, then the Obligee could seek enforcement services from the Child Support Enforcement Agency. Some enforcement tools that the CSEA may utilize is to intercept the Obligor’s federal and state tax returns. This may be a problem for the Obligor’s new/current spouse if the amount intercepted belongs to the spouse. When this happens, the spouse must alert the federal and state tax offices to protect the new/current spouse’s tax refund from the interception. Another tool the CSEA uses is to report the arrearage to the credit bureau which affects the Obligorʻs credit score/rating. Liens can also be filed at the Bureau of Conveyances, and this alerts creditors if the Obligor applies for credit. The CSEA can also suspend a person’s driver’s license and have a person’s passport denied. To find out what enforcement services are available, he or she can go to the CSEAʻs webpage https://ag.hawaii.gov/csea/enforcement/.
A person can also go to the Family Court to enforce the child support order and have the Family Court enter a Judgment for the arrears. If a Judgment is entered against the Obligor, the Obligee becomes a creditor and the Obligor a debtor. This is when debtor creditor law applies, and the Obligee has to collect on the Judgment within 10 years or extend the Judgment for an additional 10 years before the first 10 year expiration. A person at that point should consult a debtor/creditor attorney to collect on the Judgment. People generally choose the CSEA route to enforce the payment of child support, but this is only available if the Obligee requests enforcement services. The Obligee should not assume that the CSEA will automatically enforce payment of the child support.
Q. What if the Obligor doesn’t live in Hawaii anymore – can the child support order still be enforced?
The CSEA is not limited to collection in Hawaii. I’ve had experience collecting child support from an Obligor who lives in another country. If that country is a signatory to the Hague Convention, the Child Support Enforcement Agency is able to contact the CSEA or agency equivalent in the other country. It is a lot of work and takes time, so the Obligee has to be persistent. In some countries, not paying for child support can be criminal. In Hawaii, failure to pay child support is not a crime. The experience I had resulted in the Obligor being arrested facing criminal charges in his home country. Unfortunately, this Obligor was engaged to be married to a woman in his home country. He came to Hawaii on vacation for 7 days, had a fling and impregnated mom. He returned to his home country and when child support payment was pursued, his fiancée broke off the engagement and he was arrested. At that time, the arrearages totaled a six-figure amount.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.