Child Support in South Carolina – Your Ultimate Guide to SC Law

As divorce lawyers in Charleston, South Carolina, we are frequently asked questions about the state’s 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’t pay child support, and more.

What is Child Support in South Carolina?

In South Carolina, parents are legally obligated to financially support their minor children until they turn eighteen or graduate from high school, whichever comes later. This financial support is known as “child support.” Child support is not spousal support or alimony. Child support is paid by a non-custodial parent for the support of his or her children. Under South Carolina Code Section 63-17-325, the duty to pay child support begins at conception.

How is Child Support Calculated in South Carolina?

Child support is calculated based on formulas and tables created by the Department of Social Services (DSS), which are called the “South Carolina Child Support Guidelines.” The child support calculation is based on several factors:

  1. Prior support obligation
  2. The number of children being supported
  3. How many overnights the visiting parent may have (shared custody)
  4. The income (or earning capacities) of both parents
  5. Whether alimony is paid by one spouse to another
  6. The percentage of combined income each parent has
  7. The number of other children each parent has living in their own home
  8. The work-related daycare expenses either party has for the children
  9. The health insurance expenses either party has for the child or children

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 “split custody” guidelines apply. In cases where a parent has the children more than 109 overnights, the “shared custody” 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. Please note that DSS’s child support calculator gives an estimate and not a precise calculation.

Can the Family Court Deviate from the South Carolina Child Support Guidelines?

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:

  1. The educational expenses for the children or spouse including private, parochial or trade schools, other secondary schools, or higher education
  2. The equitable distribution of property
  3. The parties’ consumer debts
  4. Whether the family has more than six children
  5. Unreimbursed extraordinary medical expenses for either parent
  6. Unreimbursed extraordinary medical expenses for the children
  7. Mandatory deduction of retirement pensions and union fees
  8. Support obligations for other dependent children living with the noncustodial parent
  9. Monthly fixed payments imposed by a court or operation of law
  10. Whether the child has significant income
  11. Whether the noncustodial parent’s income is significantly less than the custodial parent’s income, making it financially impracticable to pay what the Guidelines require
  12. Whether a parent pays alimony
  13. Non-court-ordered child support from another relationship

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’s child support payment.

What Happens if I Don’t Pay My Child Support in South Carolina?

If you don’t pay your court-ordered child support, then the consequences can be very severe. Some of the penalties for nonpayment of child support include:

  • A finding of contempt of court
  • Fines, jail, or both
  • Garnishment of wages, including unemployment and worker’s compensation
  • Exclusion from receipt of certain government benefits
  • Effect on Military Standing

Also, If the supporting parent doesn’t 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 “administrative” charge is tacked on. At present, the administrative fee is 5%.

If a parent is paying child support through the court and falls behind, the clerk of the family court will issue a ‘bookkeeping” rule to show cause. In a rule to show cause, the parent must appear before the family court to show cause why they shouldn’t 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. 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 “bookkeeping” purposes.

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’t later acknowledge that support. We’re not saying that a non-custodial parent shouldn’t do things like dropping off diapers, clothes, or toys at the other parent’s house. We’re 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.

Can You Modify Child Support in South Carolina?

Yes. Section 63-17-310 of the South Carolina Code of Laws states that the family court has the authority to modify child support at any time if a parent proves that there has been “a substantial change in circumstances” or “a substantial change in the financial ability of either party.” Overall, there are three factors the family court considers in deciding whether there has been a change in circumstances:

  1. Changes in the parents’ finances
  2. Remarriage that results in a termination of alimony
  3. Changes in the child’s needs

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’s financial abilities.

Can You Get Retroactive (Back) Child Support in South Carolina?

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, our supreme court noted that a family court judge can award retroactive child support. However, the court did not grant the mother’s claim for 3 years of support because it “would constitute a substantial aggregate amount which the husband would be unable to pay in a lump sum.” As another example, in Major v. Major, the court awarded 16 months of retroactive child support. As a final example, in Sutton v. Sutton, the court awarded retroactive child support dating back to a month before the claim for support was filed.

What Happens if You Wait Too Long to Claim Retroactive Child Support in South Carolina?

If you wait too long, your claim for retroactive child support may be denied. There is a legal term called “laches” 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, 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.

However, if the court ordered child support in the past, and the parent receiving support waits many years to enforce the court’s 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.

Can You Retroactively Increase Child Support in South Carolina?

Yes, but only under special circumstances. In Harris v. Harris, 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 “special circumstances” to prevent a “serious injustice.”

Can You Recover Overpayments of Child Support in South Carolina?

The answer depends on the facts of each case. For example, in Blackwell v Fulgum, 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.

However, in Hopkins v. Hopkins, 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.

Is a Parent Entitled to Credit on Child Support Payments for Disability Benefits Paid to Support a Child?

Yes. In Justice v. Scruggs, the court held that “a parent is entitled to credit on his child support payments for disability benefits paid for the support of the children.” The same is true for social security benefits received on behalf of a child.

Who Gets the Child Tax Exemption in a South Carolina Divorce?

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’T 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.

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’s loss in net income from not being allowed to claim the children on their taxes.

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.

What Happens if a Parent Moves Away from South Carolina to Avoid Child Support Payments?

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:

  1. Willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000;
  2. Travels in interstate or foreign commerce with the intent to evade a support obligation, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000; or
  3. Willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000.

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.

How Does a Parent’s Financial Hardship Affect Child Support Payments in South Carolina?

Perhaps one of the most unfortunate situations is when a parent falls on tough financial times and can’t make their regularly scheduled child-support payments. In this situation, the parent finds themselves between a rock and a hard place. They can’t afford to hire an attorney because they don’t 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.

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’s 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 “material change in circumstances.” In many cases, simply showing a loss of income isn’t 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.

Can I Still Visit With My Child If I Don’t Pay Child Support in South Carolina?

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.

Is Failing to Support a Child a Crime in South Carolina?

Under South Carolina Code Section 63-5-20, it is a misdemeanor if an “able-bodied person capable of earning a livelihood” fails to provide reasonable support for their child “without just cause or excuse.”  If convicted, a person can face up to one year in jail, a fine ranging from $300 to $1,500, or both jail and a fine. In our many years of practicing family law, we have never seen or heard of anyone getting arrested under this law.

Do You Have to Pay for Your Child’s College Expenses in South Carolina?

Maybe. In McLeod v. Starnes, the court held that “[w]hile it is certainly true that not all married couples send their children to college, that does not detract from the State’s interest in having college-educated citizens and attempting to alleviate the potential disadvantages placed upon children of divorced parents. Although the decision to send a child to college may be a personal one, it is not one we wish to foreclose to a child simply because his parents are divorced. It is of no moment that not every married parent sends his children to college or that not every divorced parent refuses to do so.” The court considered the following factors in deciding whether one or both parents should pay for college:

  1. The characteristics of the child indicate that he or she will benefit from college;
  2. The child demonstrates the ability to do well, or at least make satisfactory grades;
  3. The child cannot otherwise go to college; and,
  4. The parent has the financial ability to pay for such an education.

Final Thoughts

As you can tell from this article, South Carolina’s laws concerning child support are very complicated. If you need a family law attorney in Charleston, SC regarding paying or receiving child support, please contact us. For more information, please visit our Family Law Services Page.

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