Tennessee Child Support Law Answers to FAQs


Tennessee child support law answers to FAQs (frequently asked questions) by Memphis divorce attorney and family lawyer Miles Mason, Sr. regarding income determination, parenting time, health insurance, and child care.

The Tennessee Department of Human Services (DHS) promulgates the Tennessee Child Support Guidelines which are a set of administrative rules.  These answers to FAQs are based on these Guidelines, which are very detailed and complex. As time passes, interpretations of the Guidelines will be determined by the Tennessee Court of Appeals and Supreme Court of Tennessee.

The answers to the FAQ’s below are general in scope. Some exceptions that may apply to a given situation are not included in the answers. For the answer to a specific question applicable to your particular situation, consult with an attorney. Miles Mason Family Law Group, PLC is a law firm in Tennessee with offices in Memphis practicing family law and divorce.

What child support terms are used in a Tennessee divorce?

The parent who pays child support is usually called the “Alternative Residential Parent,” and the parent who receives child support is usually called the “Primary Residential Parent.”

”Guidelines” or “Rules” mean the Guidelines issued by the DHS.

The child support worksheets, or just “worksheets,” are print outs of the child support calculator available on line.  Links are provided below.  Print-outs of the “worksheets” agreed upon by the parents must be attached to the permanent parenting plan form for divorce.  For post-divorce child support modification, the worksheets must be attached to an order.

The “Income Shares Model” means that under our new child support law (effective January, 2005), both parents’ income is considered in determining child support.

Current Rules, Charts, and important links can be found on the Tennessee Child Support Resources page.

Tennessee Child Support Resources


Tennessee Child Support Overview


Tennessee Child Support, Parenting Plans – Interview Part 1


Tennessee Child Support, Parenting Plans – Interview Part 2

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In a Tennessee divorce, how do I calculate the Basic Child Support Obligation?

In Tennessee, basic expenses include an average amount to cover child-rearing expenses:  housing, food, and transportation. The share of total expenditures devoted to clothing and entertainment is also included in the Basic Child Support Obligation (BCSO), but is relatively small compared to the other three items. Basic educational expenses associated with the academic curriculum for a public school education (such as fees, books, and local field trips) are also included in the BCSO.

The BCSO does not include the child’s health insurance premiums, work-related childcare costs, the child’s uninsured medical expenses, special expenses, or extraordinary educational expenses (because of the highly variable nature of these expenses among different families).

Calculating the BCSO starts with the gross income of each parent. Gross income includes all income from any source (before taxes and other deductions), whether earned or unearned, and includes:

  • wages,
  • salaries,
  • commissions,
  • fees,
  • tips,
  • income from self-employment,
  • fringe benefits,
  • bonuses,
  • severance pay,
  • pensions or retirement plans (including but not limited to Social Security, Veteran’s Administration benefits, Railroad Retirement Board benefits, Keoughs, and Individual Retirement Accounts (IRAs),
  • interest income,
  • dividend income,
  • trust income,
  • annuities,
  • capital gains,
  • disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the Social Security Act (whether paid to the parent or to the child based on the parent’s account),
  • workers compensation (whether temporary or permanent),
  • unemployment insurance benefits,
  • judgments for personal injuries and awards from other civil actions,
  • gifts that consist of cash or other liquid instruments that can be converted to cash,
  • prizes,
  • lottery winnings, and
  • alimony or maintenance received from other persons other than parties to the proceeding before the tribunal.

For more, see Overtime in Tennessee Child Support Law.

The second step is to calculate the Adjusted Gross Income (AGI) of each parent by subtracting “credits” from the gross income of each parent. Credits reduce the amount of gross income that is used to calculate the Basic Child Support Obligation. These credits are:

  • self-employment tax
  • a child being supported in the parent’s home
  • a child being supported by the parent under a child support case
  • a child who does not live in the parent’s home and is receiving support from the other parent, but not pursuant to a court order

Credits are available for both children under pre-existing and subsequent orders. For credit purposes, pre-existing orders are directly deducted from the gross income of a parent. A parent is given the full amount of credit. No credit is given from arrearage (overdue) payments.

Documented proof of support includes:

  • physical evidence of monetary payments to the child’s caretaker (such as cancelled checks or money orders),
  • evidence of payment of child support under another child support order (such as a payment history from a tribunal clerk or child support office or from the Department’s internet child support payment history), and
  • evidence of “in kind” remuneration (such as food, clothing, diapers or formula which has been reduced to a monetary amount approved by the child in a qualified other child’s case or affirmed by the receiving parent in the other case).

The available credit against gross income for either parent’s qualified “not-in-home” children is the actual documented monetary support of the qualified other children, averaged to a monthly amount of support paid over the most recent 12 months period.  The maximum is 75% of a theoretical support order calculated according to these Guidelines, using the Credit Worksheet and the parent’s gross income.  None of these credits is available for step-children.  For more information, see Receiving Credit for Supporting Children Not Living the Parent’s Home and Receiving Credit for Supporting Children Living in the Parent’s Home.

The third step, after calculating each parent’s monthly Adjusted Gross Income by deducting credits, is to take the amount of AGI each parent has, add it together for a total amount, and cross-reference it with the Child Support Schedule. The Child Support Schedule gives the monthly total obligation or Basic Child Support Obligation both parents must provide.

The fourth step is to take the monthly Basic Child Support Obligation and divide it by each parent’s Adjusted Gross Income. Each parent’s share, called the Percentage of Income (PI), is determined by pro-rating the Basic Child Support Obligation between parents.

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What is the “Parenting Time Adjustment?”

Tennessee Child Support & Divorce Law Answers to FAQs

Tennessee Child Support & Divorce Law Answers to FAQs

The Parenting Time Adjustment is an adjustment to the Basic Child Support Obligation based upon parenting time. In equal parenting situations, the adjustment is based upon each parent having 182.5 days of parenting time per year.

Except as applied to equal parenting situations, the adjustment is based upon the Alternative Residential Parent’s number of days of parenting time with the children. Only one parent can take credit for parenting time in one 24-hour period.

A “day” of parenting time occurs when the child spends more than 12 consecutive hours in a 24-hour period under the care, control, or direct supervision of one parent or caretaker. The 24-hour period need not be the same as a 24-hour calendar day. Accordingly, a day of parenting time may be either an overnight period or a daytime period, or a combination of day and night hours.

Except in extraordinary circumstances, partial days of parenting time that are not consistent with this definition shall be considered a “day” under these Guidelines. An example would include a parenting situation where the Alternative Residential Parent is scheduled to pick up the child after school three or more days a week and keep the child until 8 p.m. The three partial days may be considered as a single day for parenting time purposes.

In Tennessee, if the Alternative Residential Parent (ARP) spends 92 or more days per calendar year with a child, an assumption is made that the ARP is making greater expenditures on the child during his parenting time for costs such as food and/or is making greater expenditures for child-rearing expenses for items that are duplicated between the two households. A reduction to the ARP’s child support obligation may be made to account for these transferred and duplicated expenses. The amount of the additional expense is determined by using a mathematical formula that changes according to the number of days the ARP spends with the child and the amount of the Basic Child Support Obligation. This mathematical formula is called a “variable multiplier.”

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What is “Split Parenting?”

In Tennessee, split parenting can only occur in a child support case if there are two or more children of the same parents, where one parent is the Primary Residential Parent for at least one child, and the other parent is the Primary Residential Parent for another child. Split parenting situations are calculated differently under the new Child Support Guidelines so that both parents are given credit for having more than 50% of the time with at least one child.

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How are medical insurance, uninsured medical expenses, and work-related child care costs treated in Tennessee?

Under the new Tennessee Child Support Guidelines, the cost of medical care insurance premiums (which can include both medical and dental) for the children and the costs of work-related child care are included in the calculation for the support order. The parents must divide these expenses according to each parent’s Percentage of Income, and every court order under the new Guidelines must address these expenses.

As for uninsured medical expenses, they are added to the Basic Child Support Obligation These expenses must be routinely incurred so that a specific monthly amount can be reasonably established and added to the Basic Child Support Obligation.

Parents must divide these expenses, according to their Percentage of Income, regardless of whether they are routinely incurred and added to the Basic Child Support Obligation. Uninsured medical expenses may include, but are not limited to:

  • deductibles,
  • co-pays,
  • dental,
  • orthodontic,
  • counseling,
  • psychiatric,
  • vision,
  • hearing, and
  • other medical needs not covered by insurance.

As for work-related childcare, the Guidelines read, in part, as follows:

Childcare expenses necessary for the parent’s employment, education or vocational training that are determined by the tribunal to be appropriate, and that are appropriate to the parents financial abilities and to the lifestyle of the child if the parents and the child were living together, shall be averaged for a monthly amount and entered in the worksheet in the column of the parent initially paying the expense.

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How do educational expenses, special expenses, and other “add-ons” work within the Tennessee Child Support Guidelines?

After calculating the Basic Child Support Obligation and adding health insurance cost and work-related child support expenses, educational expenses for private or special schooling for children can be considered as a deviation from the presumed amount of support.

Other “special expenses” such as music lessons, summer camps, travel, and other activities that may contribute to the child’s cultural, social, artistic, or athletic development may also be considered by the court as deviations from the presumptive child support order and added to the child support amount. These expenses include activities intended to enhance the athletic, social, or cultural development of a child.

Some of these “special” expenses are not mandated under the Tennessee Child Support Guidelines and must exceed 7% of the Basic Child Support Obligation to create a deviation in order to be added to the Basic Child Support Obligation. If a deviation is granted, the court must include in the court order the reasons for the deviation and the amount the order would have been without the deviation.

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Can the Alternative Residential Parent obtain a modification in child support just because the obligor qualifies for a credit under the Tennessee Guidelines?

The Guidelines say no. You still must have a “significant variance.” The Tennessee Court of Appeals explained some of the history behind modification law and the succession of changes in this area of child support rules:

The new Guidelines defined the term “significant variance” as “(a)t least fifteen percent (15%) change in the gross income of the ARP (alternate residential parent)….,” a change in the number of children for whom the ARP was responsible and supporting; a supported child become disabled; or the parties’ agreement to modify support and at least a 15% change between the current support order and the proposed order, using the income shares worksheet. Subsection (7) of this regulatory provision stated that, beginning January 1, 2006, the above definition of “significant variance” would be eliminated. After that, a parent seeking modification would merely have to show a 15% difference between the current support order and the proposed child support order using the income shares worksheet.

On October 14, 2005, the Tennessee Department of Human Services (“DHS”) promulgated an emergency rule, repealing subsection (7) of Rule 1240-2-4-.05, which would have changed the definition of “significant variance” to require only a showing of a 15% difference between the current and the proposed child support orders. DHS also published a “Statement of Necessity” for this emergency rule. In the Statement of Necessity, DHS noted concerns that the changes would result in significant increases or decreases in existing child support obligations based solely on the new methodology for calculating the support. DHS was also concerned that Tennessee courts would be “subject to an unusually high volume of requests for modification by parents seeking to improve their respective financial positions” by receiving a reduced child support obligation under the new income shares guidelines. To address these concerns, DHS decided to eliminate the new subsection (7) definition of “significant variance” and maintain the existing definition of the term, in order to “limit the availability of modifications….”  Hill v. Hill, No. M2006-0273-COA-R3-CV (Tenn. Ct. App., Dec. 17, 2007) (Citations omitted).

Whether or not a parent may modify child support remains a confusing topic for judges and lawyers for many reasons. Application of the new law to a particular situation is not easily predictable. Definitely see a lawyer to inquire about your situation. For more information about child support modification, see our Tennessee child support modification page to determine if you may qualify to modify child support.

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What if the Tennessee child support award does not cover expenses?

Courts cannot create economic resources where they do not exist. However, the Guidelines are minimum requirements. Child support can be set above the Guidelines’ minimum requirements when warranted. One such instance could be a hardship deviation.

A hardship deviation could be found by a court if a modification under the new Child Support Guidelines (as changed in 2005), whether upwards or downwards, creates a large change in the amount of support.  Then the court can ease the impact of the modification on the parent who would be getting significantly less support or on the parent who would be paying significantly more support. The court can only do this in the first modification after the transition from the old Child Support Guidelines to the new Child Support Guidelines. In the next application to the court for modification, the court cannot allow a hardship deviation, and the parents will feel the full effect of the new Child Support Guidelines.

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Can a court order an employer to deduct child support from the supporting parent’s salary and pay it directly to the receiving parent?

Yes. This is called a wage assignment. In Tennessee, the court should order it unless there is a good reason not to. This works extremely well. However, if the supporting parent is self-employed, or if much of his or her income is in cash tips or payments, or is on a straight commission basis without a draw, this process might not be helpful. Discuss the situation with a lawyer experienced in these situations.

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May a supporting parent be ordered to pay child support through the State of Tennessee’s central collection agency?

Definitely. In Tennessee, payment to the state’s central collection agency simplifies the process for the custodial parent, who need not confront the supporting parent or use the children as support collection agents. The agency maintains the records of payments, and when an arrearage occurs, the proof of the amount of that arrearage is much easier to obtain.

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My ex-spouse is delinquent in child support payments. How can I enforce the court order?

You can bring a petition for contempt of court and ask for a wage assignment. If the supporting parent has the money but just refuses to pay, the court might put the supporting parent in jail for punishment or “encouragement.” Tennessee also may revoke state-issued licenses (i.e. driver’s, hunting, or medical licenses) or require the delinquent parent to pick up trash on the roads. For more information, see our Tennessee child support enforcement and collection page.

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But my “ex” moved out of state. Can I still enforce the judgment?

Absolutely. Armed with your state’s court orders, you can go to the other state’s court (often handled through the local district attorney or your local juvenile court) to enforce the wage assignment. Call your attorney, the local district attorney, or your local juvenile court for advice.

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I am worried that my former spouse will file for bankruptcy. Can my former spouse avoid paying child support?

No. If your former spouse is not making child support payments after filing for bankruptcy, check with your lawyer immediately for advice.

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Do I have to report my child support payments as taxable income on my federal income tax return?

No.

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Does that mean my “ex” cannot deduct the child support he or she pays?

Correct.

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Can this change if we both agree?

No, but you can agree to allow the Alternative Residential Parent to have the child dependency deduction as long as the Primary Residential Parent completes and signs IRS form 8332 to be filed with the Alternative Residential Parent’s tax return. For more about taxes and divorce, see Dependency Deductions & Tax Exemptions and Divorce and Taxes | Tennessee Divorce Law & Tax Resources.

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In Tennessee, when does the obligation to pay Tennessee child support end?

The obligation to pay child support ends when the child reaches age 18 or graduates from high school with his or her regularly scheduled class, whichever comes second. However, child support could end earlier if the child becomes emancipated (gets married or quits school and gets a job).

To learn more, see When does Tennessee child support end for a parent of one child? and When can I reduce my Tennessee child support with more than one child?

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May child support continue after a child goes to college?

Yes, but only if the parties agree, or if the child suffers from a severe medical condition or is handicapped. Otherwise, the court cannot award support past the age of majority (18).  See College Tuition & Costs in Tennessee Child Support Laws.

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What if the Primary Residential Parent is very wealthy or remarries someone wealthy?

In Tennessee, relative wealth of the parents does matter in terms of income determination for setting child support. The new Child Support Guidelines apply to both the Primary Residential Parent and the Alternative Residential Parent. If one parent has a greater ability to pay, then that parent should pay a greater amount of the child support obligation. But, the wealth of a non-parent or step-parent is not considered in setting child support awards.

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What happens when the primary residential parent or alternative residential parent’s income cannot be ascertained?

The Child Support Guidelines read, in part, as follows:

When establishing an initial order and the obligor fails to produce evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years), and the court has no other reliable evidence of the obligor’s income or income potential, gross income for the current and prior years should be determined by imputing annual income of $36,369.00 for male parents and $26,989.00 for female parents.

After the initial order, when the court has no reliable evidence of a parent’s income or income potential, then the court shall enter an order to increase the child support obligation of the parent failing or refusing to produce evidence of income by an increment not to exceed ten percent (10%) per year of that parent’s share of the basic child support obligation for each year since the support order was entered or last modified.

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What if the obligor is self-employed?

Income for child support can be different than that amount listed on the parents’ federal income tax return. For self-employed parents, the Child Support Guidelines make certain assumptions and allow for the following adjustments for income determination:

Income from self-employment includes income from … business operations … and rental properties, etc., less ordinary and reasonable expenses necessary to produce such income….

Excessive promotional, excessive travel, excessive car expenses, or excessive personal expenses, or depreciation on equipment, the cost of operation of home offices, etc, shall not be considered reasonable expenses.

Amounts allowed by the Internal Revenue Service for accelerated depreciation or investment tax credits shall not be considered reasonable expenses.

Fringe benefits for inclusion as income or “in kind” remuneration received by a parent in the course of employment, or operation of a trade or business, shall be counted as income if they reduce personal living expenses.  Such fringe benefits might include, but are not limited to, company car, housing, or room and board.

Variable income such as commissions, bonuses, overtime pay, dividends, etc. shall be averaged over a reasonable period of time consistent with the circumstances of the case and added to a parent’s fixed salary or wages to determine gross income.

To learn more, see Self-employed Parent’s Income Determination in Tennessee Child Support.

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May private school tuition, music lessons, special travel, and athletic training costs result in an amount greater than that in the Basic Child Support Obligation?

Evidence of the cost of the private or special needs education, the need of the child to have the education, and the prior educational decisions of the parents are factors that can be used to justify an upward deviation to the child support obligation. As for special expenses such as music lessons and special travel (or any expenses that may contribute to the child’s cultural, social, artistic, or athletic development) the court may use proof of the cost of the special expense and the reasons justifying the expense to  increase the child support obligation.

The educational and special expenses must exceed 7% of the basic child support obligation. If a deviation for educational and special expenses is allowed by the court, then the court must include in the order the reasons for the deviation and the amount the order would have been without the deviation.

The Supreme Court of Tennessee has ruled that a court can find that private school tuition can be an extraordinary education expense, justifying a greater child support obligation than the Guidelines minimum. The court will consider all relevant facts when considering an application for additional support for private school tuition.

For more, see Private School Tuition in Tennessee Child Support Laws.

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When a supporting parent is unemployed, does the court have any power to require him or her to work and pay child support?

Yes. When the person owing a duty of support is unemployed, the court may order him or her to seek employment and report periodically with a diary of efforts to find work and to participate in government job search, training, or work programs. Every able-bodied person has an earning potential. Failure to pay child support can result in a petition for contempt, leading to incarceration for failure to pay court-ordered support. Depending on the situation, however, the unemployed parent may seek a temporary reduction in support while seeking employment.

To learn more, visit Voluntarily Unemployed or Underemployed in Tennessee Child Support Law.

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Can a parent get out of paying past-due child support?

No. The Tennessee child support statute mandates that child support immediately becomes a judgment when it is due and not paid. The law does not allow a reduction in unpaid child support. Ask your lawyer, however, about provisions which may apply if a parent has completely interfered with visitation.

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I have heard of a “cap” on child support as a certain percentage of income. Is that true?

Yes. A cap applies when the presumptive child support order exceeds the amount found by multiplying a net income of $10,000.00 by the percentages set out below.

The Primary Residential Parent seeking support in excess of the “capped” amount must prove that more than “capped” amount is reasonably necessary to provide for the needs of a child. The court can order  that the excess be paid into an educational trust.

The Guidelines allow the following caps:

  • One child (21%) = $2,100.00.
  • Two children (32%) = $3,200.00.
  • Three children (41%) = $4,100.00.
  • Four children (46%) = $4,600.00.
  • Five or more children (50%) = $5,000.00.

For high-income parents, the Tennessee Court of Appeals has approved several rulings awarding child support in excess of the “caps” for education, extracurricular activities, and educational travel.

For more information, see Caps on TN Child Support for Parents w/ Greater Than $10,000 per Month Net Income.

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What is the law concerning retroactive awards of child support?

In Tennessee, in paternity cases and voluntary acknowledgment cases, retroactive support of a child may be ordered from the date of the child’s birth. The court may also award child support retroactively to the date of separation of a married couple, abandonment of a child, or physical custody of a parent or non-parent caretaker.

Retroactive support is calculated using the average income of the parties over the previous two years. Other provisions may apply if a parent has intentionally hidden the child to prevent visitation.[top]

If the supporting parent voluntarily takes a cut in income or quits a job, can he or she get a reduction in child support?

It depends. The judge will have a lot of discretion in this situation. Technically, if a supporting parent is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of that parent’s potential income, as shown by the parent’s educational level and/or previous work experience.

In this situation, though, the individual circumstances matter. For example, if a doctor leaves a practice group to start his or her own practice, the temporary reduction in income will not likely justify a reduction in child support. If, however, a manager of a retail store takes a new job with a cut in pay but also with legitimately increased advancement opportunities, the court might allow a decrease.

On the other hand, leaving a job just to reduce hours or to intentionally make less money, motivated by a desire to pay less child support, will not be looked upon favorably by the judge and can result in a child support obligation based on the parent’s potential income.

There are many appellate decisions discussing willful and voluntary unemployment and underemployment. If this situation concerns you, consult a lawyer immediately. To learn more, visit Voluntarily Unemployed or Underemployed in Tennessee Child Support Law.

Also, for a more detailed discussion of parenting issues, child support, and 8 examples of parenting plans from real Tennessee cases, purchase the Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family, by Miles Mason, Sr. available on Amazon.

For more information and up to date case summaries about Tennessee child support, visit the Child Support category on our MemphisDivorce.com Tennessee Family Law Blog. The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.

 

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