I had a great opportunity to lead (perhaps “teach”) a continuing legal education seminar yesterday facilitated by the Christian Legal Clinics of Philadelphia and hosted by Drinker Biddle & Reath LLP. The seminar was entitled “Proper Practice and Procedure of Family Law,” and I spoke on the Child Support Overview portion. I was joined by several other capable attorneys who each had their own topics to present.
As I wrote the materials for my portion of the seminar, I retain the ownership of that portion, which is posted below in this blog.
Pennsylvania child support law is critical in ensuring children have sufficient resources to meet their needs and that a non-custodial parent is invested – at least financially – in the rearing of his children.
- Establishment of Child Support
In order to establish a child support order, the person seeking support (the “obligee”) must first file a Complaint for Child Support with the family court.
A Complaint for Child Support is first heard by a support conference officer who receives the information provided by the parties and enters a proposed order based on that information accordingly. The conference officer is not a master or a judge, so very little argument or advocacy will be possible at this point. The support officer will merely receive paperwork and enter the data into his computer software to produce the proposed support order.
A child support order can only apply to one’s children. A child born to a marriage is presumed to be the child of the husband in the marriage. For a child born out-of-wedlock, paternity can be established either by the father agreeing to have his name put on the child’s birth certificate and/or acknowledging paternity at a support conference. If a putative father disputes paternity, that issue must be fully addressed and resolved before a support order can be entered against him. Paternity is its own niche area of family law and is beyond the scope of this seminar.
If a party is unhappy with the support order proposed by the conference officer, he can request a hearing before a master. While a support master is not a judge, he is like a judge in that he holds a hearing that resembles a court hearing, and receives testimony and evidence as a judge would. It is at a master’s hearing that traditional court advocacy can occur. A master’s hearing can include the testimony, examination, and cross-examination of witnesses (including experts if necessary), the presentation of documents and evidence, and arguments. Upon reviewing all of the evidence and testimony presented at the hearing, the support master issues a support order. The support master’s order becomes a final order in support unless, by the procedural deadline, one party files exceptions to that order. The exceptions function like an appeal and are heard by a judge. The judge does not hold a de novo support hearing to resolve the exceptions. Rather, the judge hears oral arguments as to whether the support master committed an error of law and/or fact. If the master did commit an error, the judge may enter a new support order taking the error into account, or simply remand the matter back to the master for a new hearing in order to remedy the errors at the prior master’s hearing.
The date a support order (of any kind) takes effect is the date one files for it. So, for example, if someone files for child support on October 1, 2019, but an order is not entered until December 1, 2019, then an obligor begins his support obligation two months in arrears on December 1, 2019. Now, this is not something to worry about and is a standard part of most support orders, and typically an “arrears provision” is included in a support order, which amounts to about an additional 10% of the monthly support being added on to the support order to pay down the arrears.
- Modification of a Child Support Order
Once established, a support order is a fully enforcable order; however, it is also an order that may be modified upon request of either party. The procedure to pursue the modification of a support order is nearly identical to securing the original order (with exception of having to show a change in circumstances as noted below). Instead of filing a Complaint for Child Support, the party seeking modification files a Petition to Modify a Child Support Order instead. As with the establishment of a child support order, the parties must ensure the court is presented with accurate incomes and expenses for both parties based upon which a modified support order may be entered.
A modification of support will only be ordered if the person seeking the modification can demonstrate that there has been a change in circumstances since the most recent support order was entered. Changes in circumstances can include: a change in employment status, a change in jobs, establishing a new cohabitating relationship, the birth of a new child, changes to health insurance coverage, and/or changes to extracurricular activities for the children, among other things. If a party is trying to resist modification, attempting to demonstrate that there has been no change in circumstance is, if successful, a viable way to accomplish that goal.
Standard discovery is only permitted in a child support case in certain circumstances. Every child support case is subject to an order of self-executing discovery. Essentially, the order to appear for a child support conference and/or hearing is accompanied by a corresponding order for each party to bring evidence of income and relevant expenses. Typically, self-executing discovery requires the parties to furnish their last six (6) months’ worth of paystubs, their most recent tax return and/or W-2 and/or 1099, receipts of out-of-pocket expenses for the child(ren) subject to the order (e.g.: extracurricular activities, tuition, camp, etc), health insurance coverage for the child(ren) subject to the order, and a completed income/expense sheet.
There are cases where a party is self-employed and/or does contract work and/or is a business owner. In those cases, the opposing party may file to have the case marked “complex” which gives permission to the parties to conduct traditional discovery (e.g.: interrogatories, requests for production,etc). Finally, a party may file for leave of court to conduct discovery upon a showing of some sort of unusual circumstance that warrants it. Of course, a Court is free to grant or deny the request for leave.
- Calculation of Child Support
The calculation of a child support order is according to an established guideline table as provided in Pennsylvania law (see Pa. R.C.P. 1910.16-3). When calculating a support order, the Court bases it on a determination of each party’s net income. Net income, in the context of child support, is a party’s gross income from any source, reduced by taxes, non-voluntary retirement deductions, and union dues. Net income is typically discerned from pay stubs and tax information; however, in “complex” cases, net income can also be derived from bank statements, business records, receipts, and other sources.
Sometimes a party’s income is, for one reason or another, lower than it could or even “should” be based on his/her experience and eduction level. In that case, a Court will determine what the party’s “earning capacity” is and enter an order based on that as opposed to actual income.
Earning capacity is a legal determination made by a court which establishes what a party “should” be able to earn. When determining earning capacity, factors like work history, prior income levels, and level of education are considered. It is important to note that the court will not simply use the highest income one had and determine that to be “earning capacity.” The court typically takes a much more pragmatic approach. For example, if someone worked at “Employer A” ten (10) years ago making $80,000/yr but, for the last nine (9) years has worked for “Employer B” making $60,000/yr, it is unlikely the court will go back to “Employer A” to determine capacity because a work history, and a relative adjustment of lifestyle, has been shown to have occurred over the last nine (9) years. In other words, the most recent employment is most likely to be considered a good measure of earning capacity unless it is shown that this employment was secured as way to facilitate voluntary impoverishment. If it can be shown that an obligor (the person who pays support) engaged in voluntary impoverishment, the support obligation will be calculated according to the obligor’s assessed earning capacity and not actual income.
There are times when someone does voluntarily “impoverish” oneself and it does not qualify as voluntary impoverishment as described above. Pursuant to Pa.R.C.P. 1910.16-2(d)(1), there is a general principle that virtually no voluntary reduction of income will result in a reduction in support, but that very same rule leaves open a possibility with its use of the word “generally” (“[w]hen either party voluntarily … [reduces his income] … there generally will be no effect on the support obligation.”). The key element is whether the reduction of income was for the purpose of circumventing a support order (as opposed to, for example, to pursue greater education or training, or to take a job with better hours, or quitting one’s job due to an infirm parent in need of care, and so forth). Now it hardly needs to be said that determining the motive for a reducing one’s income is extremely fact intensive, and one must be prepared to prove that motive in court. It probably goes without saying that being laid off, or suffering an injury, or what-have-you, against one’s will does not amount to voluntary impoverishment.
Once net income is determined for each party, it is added together in order to calculate the total parental income. The guideline table mentioned above contains a list of net parental incomes ranging from $1,000/mo to $30,000/mo in increments of $50.00 on which the income of the typical set parents can be found. Across from the parental net income is the amount of support, as determined by state law, appropriate for the number of children a set of parents have. This figure is the baseline amount of support for the child(ren) at issue in a particular case. Once the baseline support amount is determined, the amount an obligor must pay is calculated as follows:
- obligor’s income divided by total parental income totals the obligor’s proportion of parental income;
- the obligor’s proportion of parental income is then multiplied by the base support amount per the guidelines.
By way of example, say that a father earns $1,500 per month in net income and a mother earns $500 per month in net income, for a total parental net income of $2,000 to calculate support for their three children. The father in this scenario earns 75% of the parental income. According to the Pennsylvania child support guidelines, $2,000/mo in net income results in $805/mo in baseline support for three children. Therefore, based on the numbers above, the father’s child support for his three children is 75% of $805/mo, which amounts to $603.75/mo in child support.
There are times when the Court may deviate from the guidelines. Deviation is sometimes warranted in unusual or extraordinary circumstances where the guidelines do not adequately or practically address a case’s particular circumstances. For example, a child may have his own source of income (through, say, an inheritance or a law suit or a government benefit), or the other party may be the beneficiary of a huge inheritance or is married and/or cohabitating with someone who earns a substantial income. There are other times when an obligor, for example, is caring for an infirm parent and has to dedicate substantial time and money to that. For situations such as these, and others, it may be warranted to deviate from the guidelines to account for these unusual issues.
It is important to note that party’s (usually an obligor) expenses are rarely a cause to deviate from the guidelines or seek a reduction in support. It is expected that child support will be the priority in one’s monthly budget of expenses, and all other expenses will be subservient to it. So, for example, if one chooses to purchase an expensive car or have an expensive cable or telephone bill, one cannot ask the Court to reduce child support so that one can meet his expenses. It will be expected that he will reduce these other expenses in order to free up his money to pay child support.
On top of the basic guideline support amount, noted above, most support orders have a so-called “arrears provision” that is included in a support order, which often amounts to about an additional 10% of the monthly support being added on to the support order to pay down any arrears that may accumulate.
Federal law requires child support orders to address health insurance. .All children should be covered by health insurance, and many children are involved in extra-curricular activities, camp, day care, and the like. In child support cases, where family health insurance is available to one or both parties through their employment at a reasonable cost, the court will require one of the parties to provide insurance for the children at the most reasonable cost. If such insurance is only available to one party through their employment, that party will be the one required to provide the insurance coverage for the children. If health insurance is available to both parties through their employment, then the court will look at a variety of factors to determine which party should be responsible for providing the insurance coverage, including who currently provides insurance for the children, the benefits available under each plan, and the additional costs to insure the children under each plan. In child support actions where medical coverage is not available through either party’s employer, the court may require the primary custodial parent to apply for government-sponsored coverage, such as Pennsylvania’s Children’s Health Insurance Program (“CHIP”).
In terms of how health insurance premiums affect child support, Pa.R.C.P. 1910.16-6(b)(1) states: “(i) if the party paying the health insurance premium is the obligor, the obligee’s share is deducted from the obligor’s basic support amount. (ii) If the obligee is paying the health insurance premium, the obligor’s share is added to his or her basic support amount.”
In child support cases, the party that is receiving child support pays the first $250 in unreimbursed expenses per child. Any medical expenses above the first $250 are split in proportion to the parties’ incomes as compared to the joint parental income. The obligee will have to keep track of the expenses each year, and then submit them to the other party.
The costs for other expenses, such as camp, day care, tuition, and extra-curricular activities, are also split in proportion to the parties’ incomes as compared to the joint parental income. Of course, this assumes that these other items are agreed upon by both parents or, at the very least, not actively opposed by one.
Although, per the guidelines, one my be entitled to more child support, Pennsylvania law has an upper limit of 50% of one’s disposable earnings as the maximum amount one’s earnings can be garnished for child support if one is also currently supporting a spouse or a child who is not the subject of the order. If one is not supporting a spouse or child from another order, up to 60% of one’s earnings may be garnished for support.
If one earns $981/mo or less, the one is considered destitute and will not have a child support obligation applied to him/her.
While there is an upper limit to the parental income on the guidelines, there are some fortunate people whose earnings exceed this threshold. Child support cases with earnings that go beyond the upper threshold of the guidelines are calculated thusly:
(a) Child Support Formula. If the parties’ combined monthly net income exceeds $30,000, the following three-step process shall be applied to calculate the parties’ respective child support obligations. The support amount calculated pursuant to this three-step process shall not be less than the support amount that would have been awarded if the parties’ combined monthly net income was $30,000. The calculated amount is the presumptive minimum support amount.
(1) The following formula shall be applied as a preliminary analysis in calculating the basic child support amount apportioned between the parties according to their respective monthly net incomes:
- One child: $2,839 + 8.6% of combined monthly net income above $30,000.
- Two children: $3,902 + 11.8% of combined monthly net income above $30,000.
- Three children: $4,365 + 12.9% of combined monthly net income above $30,000.
- Four children: $4,824 + 14.6% of combined monthly net income above $30,000.
- Five children: $5,306 + 16.1% of combined monthly net income above $30,000.
- Six children: $5,768 + 17.5% of combined monthly net income above $30,000;
(2) The trier-of-fact shall apply the formulas in Pa.R.C.P. No. 1910.16-4(a)(1)(Part D) and (Part E) or (2)(Part II) and (Part III), adjusting for substantial or shared custody pursuant to Pa.R.C.P. No. 1910.16-4(c) and allocating additional expenses pursuant to Pa.R.C.P. No. 1910.16-6, as appropriate;
(3) The trier-of-fact shall consider the factors in Pa.R.C.P. No. 1910.16-5 in making a final child support award and shall make findings of fact on the record or in writing. After considering the factors in Pa.R.C.P. No. 1910.16-5, the trier-of-fact may adjust the amount calculated pursuant to subdivisions (1) and (2), subject to the presumptive minimum.
(b) Spousal Support and Alimony Pendente Lite. In cases in which the parties’ combined monthly net income exceeds $30,000, the trier-of-fact shall apply the formula in either Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV) as a preliminary analysis in calculating spousal support or alimony pendente lite. In determining the final spousal support or alimony pendente lite amount and duration, the trier-of-fact shall consider the factors in Pa.R.C.P. No. 1910.16-5 and shall make findings of fact on the record or in writing.
Enforcement of support is rather straight forward. The vast majority of support cases are enforced through the garnishment of wages/salary. Garnishment is preferred by the law, but it is also preferred by most people in support cases, obligee and obligor alike. Obligees prefer it as their support payments are not dependent upon the actions of the obligor. As one may expect, sometimes an obligor may forget, or intentionally withhold payment, or need to pay it late, and so on, and obligees do well to avoid these vagaries. A garnishment order makes the payment of support absolutely priority over all other non-tax obligations, and avoids the temptation for an obligor to prioritize other bills over his support obligation. While garnishment is preferred, there are cases where it is not preferred or impossible to do, in which case the obligor must remit monthly payments to the Pennsylvania State Collection and Disbursement Unit in Harrisburg for it to distribute to the obligee.
The other typical method of enforcing a delinquent support order is through contempt actions for non-payment. Contempt is, generally defined, as a willful defiance of a court order or a willful failure to comply with the terms of a court order. Enforcement of support tends to be straight forward because the various aspects of a support case are fairly obvious and easily definable. The obligor has an obligation to remit a certain amount of funds to the obligee at clearly laid out intervals (typically monthly). Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court. If an obligor fails to fulfill his obligation under a support order, the obligee can file a motion for contempt and request sanctions and enforcement. Contempt in the context of support is typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.
Contempt in a support matter carries with it two aspects one ought to keep in mind when considering pursuing a support action. The first is a consideration of the obligor’s ability to perform the support order. For one reason or another, a party in a support case is not always a as vigilant as he could be in filing for the modification of a support order. So, for example, an obligor who loses his job (and neglects to modify his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation. This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support. The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability. There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration. While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished. It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.
If someone’s arrears amount to $500 or more, the Internal Revenue Service (“I.R.S.”) will deduct it from whatever tax refund the obligor is entitled to receive in what is called an “intercept.”
- Termination of a Support Order
When a typical support case terminates is fairly clear. When the child turns eighteen (18) or graduates from high school (whichever is later) will be the date it terminates (unless the parties have agreed in writing to another date after age eighteen (18)).
Typically, when the eighteenth birthday of a child subject to a support order nears, the court will issue a letter inquiring as to when the child will emancipate (i.e.: turn eighteen (18) or graduate from high school). The obligee is to respond to this letter and confirm the termination of the support order upon emancipation. Unfortunately, courts tend to be overburdened (and do not send the letter in a timely fashion) and/or obligees uncooperative (and do not respond to the letter), as a result it is wise for obligors to file a Petition to Terminate support. This should be filed sufficiently before the emancipation date in order to avoid an over payment. At a hearing for a Petition to Terminate, the obligor must demonstrate that the child for whom support is being paid has been (or will be) emancipated.
There are cases where support can extend beyond traditional emancipation. One way it can last beyond traditional emancipation is if there is an agreement between the parties to do that. Another way is to demonstrate that the child for which support is being sought is disabled in some way which causes him to be unable to sustain himself as an adult. In order to demonstrate disability, the obligee must present evidence from physicians and/or a mental health professional (and the like) to prove that the adult child needs continued support due to a disability.
Finally, it should be noted that even though a support order is “terminated,” all that means is that the accrual of the order stops. The obligor will continue to be responsible for any arrearage after termination of the order, and the arrears will remain as a debt owed by the obligor until it is fully satisfied, even if that is long after the order is terminated.
Maintenance is a colloquial term that typically refers to spousal support (“SS”) and/or alimony pendente lite (“APL”) and/or alimony. While SS and APL greatly resemble one another, they do have some distinctions.
SS is the support one spouse is obliged to provide the other one if the other one is unable to be self-supporting. SS can be awarded without an underlying divorce matter as long as, generally speaking, the estranged spouses do not live together. By contrast, APL is support provided by one spouse to the other, who is unable to be self-supporting, during the pendency of a divorce matter, as long as, generally speaking, the estranged spouses do not live together.
Both APL and SS are calculated using the same formula. The payment will amount to 40% of the difference of the parties’ incomes (or 30% if the SS/APL obligor is already paying the obligee child support).
Many people seem to approach SS/APL as a simple issue of determining which spouse has greater income/assets and, as a result, obtaining an order requiring that spouse to remit funds to the other. While many cases can be that simple, they do not, and often are not, have to be quite that simple. Merely having a lower income or fewer assets does not automatically entitle one to SS/APL; the analysis is a little more complex than that.
In order to receive SS or APL one must prove the assertions made in the typical petition for the same, which generally includes:
- that the obligee cannot support himself (and/or cannot support himself during the course of the litigation);
- that the obligee lacks sufficient property to meet reasonable needs and expenses;
- that the obligee cannot support himself through appropriate employment;
- that the obligee cannot afford necessary and reasonable attorneys’ fees for the underlying case.
As one can see, the focus of the assertions made revolve around the obligee’s ability to pay for and/or afford his reasonable needs and requires the other spouse to help subsidize those needs.
The concepts of “reasonable needs” and “supporting oneself” are vague on specifics and can differ widely depending on the person. Some people may think a Spartan lifestyle is reasonable while others think having some luxury in one’s life is not unreasonable. When discerning what needs are (un)reasonable and whether one can be self-supporting, the first place to look would be the established marital lifestyle as a general guideline. The needs and expenses present in one’s life, which were funded as and by a couple, do not suddenly disappear when that couple separates. Furthermore, the cost to pay for a married couple’s decision to buy a car or a house (of whatever value), for example, does not suddenly become unreasonably expensive when that couple separates. To put it simply: the marital bills need to get paid. Maintaining something similar to a marital lifestyle over the course of the divorce is something which SS/APL strives toward.
Although SS/APL is/are to help maintain reasonable needs and/or helping someone unable to support himself, this does not mean that the potential obligee is without financial responsibility, nor does it mean that one should (or even could) be immune from the negative financial effects that divorce (or separation) inevitably brings. The focus is on what is “reasonable.”
In order to receive SS/APL one has to demonstrate an actual need for the money. As a result, a look at the assets and income of the person seeking SS/APL is fair game when determining whether SS/APL is appropriate. The goal is to help maintain a standard of living that is reasonably consistent with the standard established during the marriage and if the obligee can do that without any money from a potential obligor, then SS/APL may not be warranted. Any financial discomfort caused by the separation can be remedied through the distribution of the marital assets in divorce.
Of course, the greater the disparity of assets and income is between the parties, the greater the likelihood SS/APL will be awarded as the ability for the potential obligee to maintain a marital standard of living becomes increasingly unlikely as that disparity widens.
There are other defenses to SS/APL other than arguments surrounding the concepts of “reasonable” and/or what it means to support oneself; by contrast, these other defenses are much more straight forward, though what they lack in legal complexity, they more than make up for in a potential for emotionality.
The first defense is that the parties were never married. Only married people can collect SS or APL. This is an obvious defense, perhaps, but there are still some people who can claim a common law marriage and/or seek annulments, and this defense would apply to those cases.
The other defense is to raise an old fashioned “fault” argument (it must be stressed that this is only a defense to SS and not APL). Although rather uncommon in post-modern America, the law still allows for a traditional old fashioned divorce based on marital fault (23 Pa.C.S.A. §3301(a)). The typical marital faults include adultery, abuse, and abandonment, among others. If it can be proved that a potential obligee committed one of these faults, then it will disqualify him from receiving SS.
These issues are included here as they did not have a natural or logical home in the materials above.
- Child Support Cannot be Bargained Away
As with any sort of Court case, it is not uncommon for the parties to a support case to seek an agreed resolution as opposed to seeking an order from a Court after a hearing; however, a child support case as limitations to how much leeway or freedom a party has to enter into an agreement.
Pennsylvania Courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania Courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the Court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).
Despite the above, however, the Courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the Court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.
Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The Court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.
- Who pays and who collects child support?
For the vast majority of cases, the primarily custodial biological parent is entitled to support while the partial custodial biological parent is obliged to pay it. Adoptive parents, and step-parents and/or anyone else who assumes an in loco parentis role, are treated just like their biological parents counterparts in terms of entitlement and obligation.
There are very rare cases when a primary custodial parent pays child support to a partial custodial parent, but this is only when the income/wealth disparity between the two (with the partial custodian having less wealth than the primary) is so tremendously great that it would be against the best interests of the child(ren) to make the partial custodian become even more comparatively impoverished while the primary custodian amasses even more wealth.
Of course, if the parties both live in the same house and the person from whom support is sought pays the household expenses, no order will be entered.