Fairly Facias: Child Support Guidelines
The Publick Enterprise, Annapolis, Maryland As anyone who has ever gone through it knows, divorce is an unpleasant, emotionally difficult experience. When children are involved, there is often an added problem. Will the custodial parent be able to meet the financial needs of the children? As a result of Senate Bill 49, which became effective as law February 24, 1989, Maryland has adopted Federally mandated guidelines for child support. The new law provides for three important changes. By far, the most important change is the recognition that child support should be based on the actual gross income of the parents, not their income after expenses. Second, once the total of the parties gross income is determined, the amount of child support is determined by looking at tables provided in the guidelines. The legislature has set the financial needs of children at higher levels than the Maryland courts have generally found necessary. Each parent then pays child support as indicated in the guidelines, based on the relationship that their gross income bears to the combined gross income of the parties. Third, under circumstances where the court may believe that a parent has voluntarily reduced his or her income to avoid paying child support, it may assess that parent with child support based on potential income rather than actual income. How then, does the law apply these significant changes? Whether considering sole or joint custody, the actual monthly income of each parent before taxes is used. Actual income takes into account income from any source, whether salary or otherwise, and includes potential income of a parent who has voluntarily eliminated or reduced his or her income. A parent will not, however, be assessed with his or her potential ability to earn income of they are unable to work because of a physical or mental disability, or because they are caring for a child under two years of age for whom they and their spouse are both responsible. Actual income is determined before taxes or other deductions and allows the deduction only of ordinary and necessary expenses that are required to produce that income. For self-employed parents, or parents with company benefits, expense reimbursement and in-kind payments are also considered. Under certain circumstances, the court may even consider severance pay, capital gains, and gifts or prizes as actual income. The primary exclusion from actual income is income from certain public assistance programs. Parents are allowed to deduct reasonable pre-existing child support payments that they actually pay, alimony payments that they actually pay, and the actual cost of providing health insurance coverage for any child for whom the parents are both responsible. If alimony is awarded, it will be considered actual income to the person receiving it. After allowable adjustments are made, the combined incomes of the parents are determined. That total is then found on a table as part of the guidelines. This table sets the basic child support obligation for monthly combined incomes. By relating the percentage of each parents income to the combined total income, the amount of each parent’s child support obligation can be easily determined. For example, if we assumed that the mother has an actual monthly income (before taxes) of $1,666 and the father has an actual monthly income (before taxes) of $3,750; and that neither parent has a pre-existing child support payment, and there are no premiums paid for health insurance, then the monthly adjusted actual income of the parents would be $5,416. By dividing each parents income by the combined income, we would see that the mother’s share would be 31% and the father’s share would be 69%. We would then look to the tables provided by the legislature, which indicate that parents with two minor children with a combined monthly actual income of $5416 have a basic child support obligation of $1,115 per month. If we assume for the purposes of this example that there are no work related child care expenses or extraordinary medical expenses, then the total child support obligation would be $1,115 per month. The mother would be assessed with 31% of the $1,115, or $345 per month, and the father would be assessed with 69% of $1,115, or $769 per month. In this example, if the mother were the custodial parent, it would be presumed that she would spend her assessed share on the children and the father would be required to pay her the $769 per month. Special guidelines are used where there is shared physical custody. An approach is used which takes into consideration the amount of time that the child or children spend with each parent. For a shared physical custody to be used, each parent must keep the child or children overnight for more than 35% of the year. They must show that each parent contributes to the expenses of the child or children in addition to the payment of child support. Parties who have already been divorced and who are already subject to an order to pay or receive child support are not ignored by the new law. Either party may request a modification of the prior order and argue the new guidelines as a basis for changing the prior order, if the application of such guidelines would result in a change of child support payments of 25% or more. If must be kept in mind in considering the new support guidelines that they are just that- guidelines. The law indicates that the guidelines are advisory only, and the court may elect to disregard them, considering instead other factors which the court considers most appropriate. |
