The law on child support changed dramatically in 2008 with the adoption in the State of Georgia of what is known as an “income shares” child support model. It use to be that you applied a certain percentage to the payor’s gross income and you argued upward or downward from there, based upon the number of children. Now the gross income of both parties must be input into a spreadsheet to determine a “standard” support amount, and this standard support amount is allocated between the parties on a pro rated basis based upon relative gross incomes. To derive gross income certain adjustments are allowed, such as a reduction to a party’s gross income for the following circumstances: a reduction in gross income for self-employment tax, for a pre-existing child support order, and for a party’s responsibility for support of a “qualifying” child (which is basically if you have a child from another relationship (your child, or adopted child) living in your home, and you actually support the child in your home, you get a credit for this. You do not however, get a credit for supporting a step-child that you have not adopted). Based upon the final determination of the parties’ gross incomes a standard child support amount is produced.
This standard amount of support is then further adjusted by allocating (pro rata based upon the relative percentage of gross incomes of the parties) the health insurance premium costs for the children (not the cost for the parents, but the premium cost for the children) and the work or education related childcare costs for the children. This becomes what is called the “presumptive” child support obligation.
From here it gets interesting because then you can argue deviations upward and deviations downward. This is because the new child support guidelines derived its child support numbers based upon the average cost for raising children in an INTACT family. That is a one household family where both mom and dad live under the same roof. The guidelines ignored the fact that two households are more expensive then one. Because of this, there is a lot of room for deviating upwards and deviating downward. Below are the deviation factors based upon the new statute:
- High income
- Low Income
- Other health related expenses
- Child and dependent care tax credit
- Travel expenses for visitation
- Mortgage (or making in-kind payments)
- Permanency or Foster Care Plan
- Extraordinary expenses
- Non Specific deviations
- Parenting time.
As an example, there is a tax credit available to the custodial parent for the cost of childcare. The guidelines allocate the cost of childcare to both parties on a pro rata basis, yet ignore that the custodial parent will also receive a tax credit for the childcare that they pay. It is neither fair, just, nor in the children’s best interest for one party to double pay for childcare, and to have to pay a greater share of the expenses then their pro rata gross income. Yet that is exactly what happens if the paying party is not given some credit for the childcare tax credit. In calculating child support this factor should always be checked.
There are other tax benefits available to the party claiming children on their taxes such as the Head of Household and the Dependency Exemptions. It is not fair, just, nor in the children’s best interest to require one party to pay more than their pro rata share of expenses. If a party is claiming Head of Household and/or the children as dependency exemptions that can add hundreds of dollars a month to that party’s after tax income. For example, with 2 children, and a gross income of $4,200 per month, the actual tax cash benefit for the children (excluding the childcare credit discussed in the previous paragraph) is well over $500 per month. That is more then $500 per month in actual cash the party has to spend on the children solely from the fact that the party gets to claim the child on his or her taxes. It is not fair that the child support paying party not be given pro rata credit for this benefit. To do otherwise is to require one party to pay more than their fair share under the statute.
Travel expenses is another deviation factor. The parties are no longer living in one household. It costs money to pick up the children, take the children out for visitation, etc. This is money that it did not cost when the parties were living together as is assumed in the new child support guidelines. In practice this deviation comes in when visitation travel is of a longer distance, or expenses are greater. For example, you live in Marietta. Your ex-spouse moves the kids to Hall County. You are now going to incur the expense of gas, wear and tear on the car, and probably meals, to continue to visit with your children on the same basis. It is not fair, just, nor in the children’s best interest for you to bear this expense alone and your ex-spouse, who moved, should bare at least a portion of this expense, and perhaps all of it depending on the circumstances of his or her move. This deviation becomes a real necessity when visitation is really long distance such as cross state or out of state. Then you have the cost of airfare, hotels, lost work, and a host of things other than gas, wear and tear on the automobile and meals. I have had one case where the visiting father flew in from Texas, one week a month to keep his son in Atlanta during the school year. He even rented a condominium to stay with his son in Atlanta during that week. He received $600 a month downward deviation to help defray these expenses. It was in the child’s best interest for this client to continue visiting with his son in this manner, it was fair and unjust for him to bare this expense himself, and it did not harm his ex-wife’s ability to provide necessities for their son.
Parenting time deviation is a deviation that is only loosely defined, and not very well understood. From a practical perspective, look at it as having more time then “standard” visitation. Standard visitation is between 20% and 24% custody time (which is between 75 and 90 days per year with the children), depending on how many weeks of visitation you get in the summer. For most of my clients they do not want “standard” visitation. They want more visitation, and if we don’t get custody for some reason we get as much visitation as we can. But for calculations purposes, standard visitation is every other weekend from Friday until Sunday, a dinner with the kids each week, splitting the holidays 50/50 and 2 weeks during the summer. In practice (from how the courts have been interpreting this deviation so far) if you have 90 or more days a year of custody time with the children you can make a valid argument for a parenting time deviation. This deviation exists because the new child support guidelines do not take into account the expense of parent who has more than “standard” visitation, and do not take into account that the support needs of the custodial parent are reduced if the non-custodial parent has more than standard visitation. It is therefore not fair, nor just, nor in the children’s best interest not to make a deviation based upon parenting time. In practice, a good method of determining the amount of deviation involves calculating a per diem amount per day of support, and then giving a credit for this amount to the non-custodial parent for each above standard visitation day that the non-custodial parent has the children. This can be done by taking the presumptive amount of support, calculating it on a per day basis (instead of a per month basis) and running the numbers to see what sort of parenting time deviation is warranted. Keep in mind, it can also work in reverse if a parent exercises less than standard visitation with the children.
Extraordinary expenses is another little understood deviation that is often abused. Lets say your kids take piano lessons, or they have extra-curricular activities that cost money. The custodial parent is going to want you, along with paying child support, to pay “your fair share” of these expenses. However, that is not how the statute treats these sort of expenses, and don’t let your spouse tell you otherwise. This is because the average amount of these expenses is already included in the standard child support amount that we discussed in the first paragraph of this article. To pay for your “fair share” of these expenses again would be double paying, as your child support already includes these expenses. Instead, the statute allows a deviation for these expenses only if these expenses are truly beyond the ordinary. And that is when these expenses EXCEED 7% of the Basic Child Support Obligation (which is the standard child support amount we discussed in the first paragraph). And then only this amount that exceeds 7% will be considered a deviation upward or downward, depending on who is paying the expense.
Extraordinary expenses may also include extraordinary medical expenses, not just for the children, but also for the parents, if such expenses produce a hardship.
The premiums you pay for life insurance, dental insurance, and vision insurance are also potential deviation factors.
If you are paying alimony in case, this factor can be used as a deviating factor; if you are paying in-kind expenses like a mortgage for a party, and any other factor that would tend to reduce the needs of one party or increase the burden of the other party can be taken into account as a deviation.
The above are the major deviation factors. They should not be ignored as they can literally be worth $10,000 or more per year in child support that is either paid or received. Over the minority of your children that can add up to hundreds of thousands of dollars.
Under the new law, after tossing all of this information into a spreadsheet you get the amount of child support that is to be paid per month. I can tell you from experience that most opposing attorneys that I come up against are not utilizing the majority of deviation factors. Primarily because they don’t understand them or they don’t even remember them. The best attorneys however do understand these factors and they do know how to argue for and against them. Determining a fair and just amount of child support is no longer clear cut and it is no longer a simple matter. As a matter of fact it is dang complicated.
Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.
Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.