Adjustments to Basic Support

Support in Pennsylvania is calculated based on a statewide guideline amount. Pennsylvania Rules of Civil Procedure 1910.16-6 outlines potential adjustments to a basic support obligation. Reasonable child care expenses paid by either parent can be added to a support calculation. The additional cost is then allocated between the parties in proportion to their income. Most additional expenses will be similarly divided among the parties based on their net income. Health insurance premiums on behalf of the other party and/or children can be included. Further, the portion of the premium attributable to the party paying it can also be allocated as long as a duty of support is owed to that party. Unreimbursed medical expenses are also covered. The first $250 is built into the calculations such that the party receiving support is expected to cover it. Expenses over $250 are split by the parties based on their relative amount of income. Expenses include co-pays, deductibles, dental and optical services as well as orthodontia. Expenses that are usually excluded include chiropractic, cosmetic and psychiatric/psychological services.

Private school tuition and summer camp may also be included in a support award if the court deems the expenses reasonable and necessary. Parties usually need to agree on private school in order for the tuition to be shared through a support award. Mortgage payments are the final category of potential adjustments. This provision only applies for a marital residence where only one of the parties continues to reside there. If the mortgage payment exceeds 25% of the net income of the party residing there, there may be a deviation resulting in an increase in support if the residing party is receiving support or a decrease in support if the paying party is residing there. The term “mortgage payments” is inclusive of all real estate taxes and homeowners insurances. At the court’s discretion, it may also include second mortgages, home equity lines and other obligations secured during the marriage secured by the marital residence.

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Self Support Reserve

The self support reserve is the amount of money a parent paying support needs to have available to support themselves. It is intended to ensure low-income parties can meet their own basic needs as well as provide an incentive for continued employment. In Pennsylvania, the self-support reserve is presently $931 a month. This number reflects the federal poverty level for one person. In calculating a support award when the party to pay support has income equal or less to the self-support reserve amount, the court can only award support after consideration of the parties’ actual financial resources and living expenses instead of a strict adherence to the guideline amount.

New Jersey also has a self-support reserve to consider in determining a support award. The self-support reserve for New Jersey is calculated based on 105% of the U.S. poverty guideline for one person. If the net income of the party paying support drops below the self support reserve after consideration of the support award, the support should be adjusted. The exception to this rule is if the custodial’s parent’s net income minus the child support award is less than half the self support reserve amount in which case there is no adjustment. A court may impute income or assign an earning capacity to a party prior to a determination on whether application of the self support reserve is appropriate.

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Defenses to Support Registration

An out of state order may be enforced in Pennsylvania following registration of the order here pursuant to 23 Pa. C.S. 7605. Notice will be given to all interested parties regarding the proposed registration. If there is no response, the order will be registered. If a party contests the registration, a hearing will be scheduled. There are several defenses available to a party contesting registration of a support order under 23 Pa. C.S. 7607. First, the party can assert that the court that initially entered the order lacked personal jurisdiction. Second, the party can assert the order was obtained by fraud. Next, the party can establish the order has been vacated, suspended or subsequently modified by another order.

The fourth defense is that the order has been stayed pending appeal by the issuing court. Fifth, a defense under Pennsylvania law can be raised. Sixth, the party can establish full or partial payment has already been made. Finally, the party can assert the statute of limitations has already run barring enforcement on past due support amounts. If a party successfully proves one of the above-listed defenses, the court can decline to register the order. Additional options available to the court include continuing the matter for additional evidence and/or registration of the uncontested portion of the order. Once an order is registered, the court does not allow any further argument or defense so all defenses must be raised at the initial notice of registration.

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Debt Compromise

It can be difficult to catch up on support if a large arrears balance accrues. Unfortunately, sometimes the party paying support has good intentions to pay support but due to circumstances out of their control, end up falling behind. It may be possible to arrange a settlement to clear up an arrears balance. The settlement will generally involve a reduced total in exchange for a lump sum payment. Such an arrangement can be agreed upon between two private parties at any time. There is more gray area when the debt is owed to the State.

The majority of the states either have a fully implemented debt compromise plan or make a decision on debt compromise proposals on a case-by-case basis. The rationale in even allowing debt compromise is to increase the likelihood the states will receive some of the debt owed as opposed to no payment at all. Pennsylvanian and New Jersey both consider debt compromise plans on a case-by-case basis. In Pennsylvania, by rule of the Supreme Court, any compromise on debt owed to the state must be approved by court order.

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County Differences: Support

There are some differences in procedure among the different counties even though the same law applies. One example is as it relates to support proceedings. Bucks County uses a two-tier system for handling support matters. The first step involves a conference before a court officer. At the conference level, both parties are required to bring proof of their income in the form of pay stubs, tax returns, W-2’s, etc. The officer presiding over the conference will use the income information provided to determine the net income of the parties and subsequently run a calculation based on the state-wide guidelines for support. If the parties are agreeable to the support number generated by the calculations, they can sign a final order for support in that amount. If either party is not agreeable, the next step is a hearing before a Judge.

Montgomery and Philadelphia Counties use a three-tier system in support cases. The first step is a conference as is the case in Bucks County. The second step is a Masters Hearing. The Master is not a Judge but an attorney specially trained in support matters. The Master will hold a hearing where they can hear testimony from both parties and review exhibits. At the conclusion of the hearing, the Master will make a report outlining recommendations for support. The parties receive a copy of the recommendations and are advised that if they do not file exceptions to the recommendations within the time frame allotted, the recommendation becomes a Final Order. If exceptions to the Master’s recommendation are filed, then the matter proceeds to the third-step which is a hearing before a Judge.

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Health Insurance for Children

Health insurance for minor children is an issue dealt with in the context of child support. If the children are presently covered under a plan through one of the parents, the children can remain on that plan. The other parent would then contribute to the premium being paid if applicable. This can be achieved by an increase over the guideline support amount if the party receiving support is paying the premium or a decrease if the parent who is receiving support is not the one providing the coverage. A change in which parent provides the coverage may be beneficial if one parent’s coverage is better than the other or less expensive but with similar coverage. Sometimes, the motive in changing plans is for the parent paying support to reduce the support paid directly to the other parent by adding the children to their plan instead.

If the children are receiving health insurance at no cost to either party it does not affect the guideline support amount. This may happen if one of the parents is employed by a company that covers 100% of the premium. This can also occur if the children are insured through a government program such as medical assistance or CHIP (Children’s Health Insurance Program). Health insurance is only to be provided by one of the parents if at a reasonable cost. The court does not go so far as to mandate health insurance regardless of the financial circumstances of the parties. Again, thanks to programs like CHIP it is possible to ensure the children have health insurance even if the parents cannot afford it. However, even parents should reconsider the financial consequence of not having health insurance given the enactment of the Affordable Health Care Act and the penalties of failing to obtain health insurance going forward. Subsidies may be available based on income to ensure health insurance coverage at a reasonable cost.

 

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Military Service and Child Support

There are several options in providing for child support of minor children when one of the parents is in the military. One option is the traditional method of pursuing court-ordered support through the state court with jurisdiction. An issue that may pop up in this instance is the Servicemember’s Civil Relief Act (SCRA) which mandates a stay on civil matters while a servicemember is on active duty. A servicemember can waive this statutory protection in writing and proceed with any civil matter, including family law issues, at their discretion. Another option is to reach an agreement on support. Written support agreements can be enforced through the military or the state court with jurisdiction.

A final option where there is no agreement and the servicemember has not elected to proceed with a state court child support proceeding is for the relevant branch of military to establish an interim support amount based on their regulations. All branches of the military maintain regulations that require a duty of support by the servicemember to their family/dependents. Most branches of the military have established support requirements that are tied to the number of dependents requiring support (spouse and minor children) and their gross pay and/or Basic Allowance for Housing (BAH). See the links below or specific information on how support is calculated by the various branches of the military in the absence of a court order or agreement.

Air Force: www.e-publishing.af.mil/shared/media/epubs/AFI36-2906.pdf

Army: http://armypubs.army.mil/epubs/pdf/R608_99.PDF

Navy:http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1700Morale/Documents/1754-030.pdf

Marine Corps: http://www.lejeune.usmc.mil/legal/dependent_support_regulations.pdf

Coast Guard: http://www.uscg.mil/lsc/coast_guard_provisions.asp 

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Driver’s License Suspension

One of the consequences of failing to pay child support is a suspension of your driver’s license. This can happen if support is overdue by three months or more. Advance notice must be given prior to the suspension. The notice specifies the past due amount, how, when and where it can be contested. Grounds for contesting notice of suspension are limited to mistake in the amount of past due support actually owed or mistaken identity. The suspension will occur after thirty days if there is no response, the past due amount is not paid or excused, or there is not a court-approved payment plan in place.

The available methods to have a driver’s license reinstated mirror those that could prevent a suspension in the first place. They include paying the past due amount, entering into a court-approved payment plan or being excused from the obligation. A driver’s license is not the only license subject to suspension. The court also has the authority to suspend recreational licenses issued by the Pennsylvania Game Commission as well as licenses issued by the Fish and Boat Commission. There is no right to appeal an order suspending a license. The only option is to petition the court that ordered the suspension for relief. Additionally, car insurers are prohibited from taking adverse actions, such as increased premiums or rate penalties, if a suspension occurs under 23 Pa C.S. 4355.

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New Support Guidelines

Several changes to the state-wide support guidelines will take place in August 2013. First and foremost, the basic child support schedule will be updated to reflect newer economic data. The basic child support schedule is a table that references the combined monthly net income of the parents and the number of children to determine the appropriate support award. There is a presumption that the amount of support indicated by the support schedule is the correct amount. In addition to updating the entire support schedule, the Self-Support Reserve has also increased from $867 a month to $931 a month. This amount reflects the 2012 poverty level for one person. The self-support reserve is the minimum amount of income that should be retained by the party paying support to ensure they can support themselves and to provide an incentive to continue working.

Another change set to take place in August relates to the calculation of net income. Generally, the rules provide for a calculation including the net income of both parents, however, Rule 1910.16-2 will soon provide that two calculations be done in low-income cases. First, a calculation should be done using only the income of the party that will be paying support. Then, a second standard calculation should be done utilizing the income of both parties. The party owing support would be responsible to pay the lower amount of the two calculations. This revised rule is meant to address issues where the party owing support is low-income but the party to receive support has significantly greater income.

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Physician Verification Form

In the event that a party in a support matter asserts an inability to work due to medical issues, the support rules now require that a physician verification form be completed. Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1910.29 (b), regarding evidence in support matters, the physician verification form should be completed by the party’s physician and submitted at the time of the support conference. If the party receives Social Security disability or workers’ compensation benefits, proof of income from those sources can be submitted in lieu of the physician verification form. A sample of the actual form to be used is contained in Pa.R.C.P. 1910.29(b)(3).

If the support matter does not settle at the conference and a hearing will be necessary, the physician verification form can be admitted into evidence if certain requirements are met. First, the party intending to use the physician verification form must serve a copy on the other side within 20 days from the conference date. The other party then has 10 days from receipt of the physician verification form to file an objection. If no objection is received, the form may be accepted into evidence without requiring the physician’s testimony. If an objection is made, the physician would need to testify in court and the court would determine how the cost of the testimony will be divided among the parties.

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