Child Support Issues

By Spencer Williams, Cordell & Cordell, PC

Child support in Missouri is calculated pursuant to a dual income model.  The Supreme Court designation of the required form is the Form 14.  The basic calculation apportions the needs of the child based upon the combined income of the parties.  The calculation also allows for the inclusion of work related child care costs, health insurance premiums for the child, extraordinary recurring uninsured medical, extracurricular and educational  expenses.  Finally there maybe a credit based upon the over night visitation periods of the non-custodial parent.

INCOME:  All income of a party maybe included as income for child support purposes.  The primary source to determine a person’s income are pay stubs and tax returns.  Bonuses, commissions, overtime and even capital gains can be included as part of the income for Form 14 purposes.  While the Form takes into consideration the taxes, gross income is used.  Further, income for tax purposes is not exactly related to the income for support purposes.  Generally where those income figures can differ is for the self employed.  The income uses is gross for taxes, the income figures is net for business expenses.

However, every business deduction allowed by the IRS is not necessarily allowed for child support purposes.  A common area where the income treatment is different is depreciation.  Some business deductions allowed by the IRS are not allowed for child support purposes.  Generally variable income such as overtime, bonuses and commissions are averaged over a two or three year period and added to any base salary for support purposes.

Imputed Income:  The court is allowed to impute income to a party that has voluntarily reduced their income.  The court will look to the education, prior work experience, work skills, employment availability in the parties city, the age and needs of the children and the health of the parent to determine an income for the parent.  It is likely that if you are trying to impute more than a minimum wage to the other parent that expert testimony such as a vocational expert would be necessary.

Adjustments to Income:  Once the court determines the gross income of each party, the Form 14 requires certain adjustments to that gross income.  If a party has a child in their primary care or is paying court ordered child support for another child a deduction maybe allowed.  In an establishment of support the prior born children of all parties would be included.  Going forward on modifications adjustments for children born after the establishment of support are applied only to the income of  the parent that the defending the modification.  This is also known as the “sword v shield rule”.  You can use an after born child as a shield to prevent a modification by the other parent, but not as a sword to support a modification.

Further, the Court will make adjustments for any maintenance that is being paid to the other parent or to a third party and adjustments to the income of the a party receiving maintenance from the other parent or a third party.
The income of the two parties is combined and then the percent of each parties income is determined.

Base child support amount:  the determination of the base child support amount is very simple once the adjusted income is determined.  The Supreme Court has supplied a chart for one to six children and combined income of the parties from zero to thirty thousand dollars per month.    Note that the chart was modified in August 2008 and is mandatory for use in January 2009 though many courts are using it immediately.  The prior chart only provided combined income up to twenty thousand dollars per month.  In addition the new chart included a cost of living increase across the board.

Expenses beyond the basic support amount.

Daycare:  the court can and usually does include any work related day care of the parties into the support calculation.  The amount that is placed into the Form 14 is adjusted for the federal child care tax credit that the parent paying support receives on their federal income taxes.  The maximum age for a health child to have day care included in the support calculation is age 13.  It is allowed by the court or by agreement of the parties for the court to take the daycare out of the Form 14 calculation and order that the parent paying support pays their share of the daycare outside of the child.  This has the advantage of not requiring a modification to be filed when the daycare is reduced or the child no longer requires that expense.  However, usually the pretax amount is split on the percent of income, not the net amount.  This should be an issue that is considered when taking outside the chart is to push for a division of the net amount or be allowed to pay the daycare amount directly to the provider and then deduction that portion as allowed by the IRS.  It is not common for the court to remove the expense from the chart, but many judges will consider that request if the child is close to age 13.

Health Insurance:  Only the health insurance premium cost for the child is included in the chart.  The cost for the parent or other participants on the plan such as step children or a new spouse are not included.  Gathering information on the cost for just the parent, parent plus one and cost for family early in the case is a good idea.  If a new spouse is paying for the health insurance of the child related to the support calculation, this payment by the new spouse is treated as if made by the parent of the spouse and is included into the support calculation.  Finally, dental and vision insurance may also be included in this expense inside of the chart.

Additional expenses:   It is not common, but is allowed by the Form 14 rules to include other expenses relating to the child of the support order such as recurring uninsured medical expenses, private school tuition and extracurricular expenses. Unless there has been a history of non-payment of these expenses outside of the chart by the payor, the court will usually order these expense divided equally or on percentage of income outside of the chart.  This requires more involvement between the parents in the sharing and exchange of receipts for these expenses.

Visitation credit:  The court must provide a visitation credit based upon the overnight visitation periods that are court ordered and actually exercised by the parent paying support.  The credit is specified for up to 109 days and a 10% credit.  If the parent paying support has 110 overnight visitation periods or more the credit beyond 10% is discretionary with the court.  Note that the new 2009 rules and instructions provide more guidelines to the judges on credits beyond 10%.  If the underlying basis for the credit is extrapolated beyond 109 days, a parent receiving 110 days should receive a 20% credit and range up to a parent on a fifty-fifty custody basis receiving a 34% adjustment.  Note that the visitation credit is a percentage of the base child support amount that does not include any of the additional expenses such as daycare, health insurance and recurring uninsured medical expenses.

Other issues.

Tax deduction:  the Rules and Instructions for Form 14 assume that the parent receiving support receives the tax deduction relating to the child each year.  This assumption is already calculated into the support chart.  If the assumption was not present, the base support of the parent paying support would be increased accordingly.  Basically, the parenting receiving support is getting a share of the tax credit each month by having a lower child support payment than if this assumption was not present.  However, this provision can be negotiated with the other parent such that it is common for parents to either rotate the tax deduction for one child or split the deductions if there is more than one child.

Uninsured medical expenses:  As previously mentioned it is common for the parents to divide the costs of uninsured medical expenses outside of the child support calculation.  There is an assumption in the support calculation that assumes the parent receiving support will pay the first two hundred and fifty dollars of uninsured medical expenses per child per year.  Much like the tax deduction issue, this provision is negotiable between the parties.  If the parent receiving support allows for a rotation or division of the tax deduction, the parent paying support will waive the provision relating to the payment of the first two hundred and fifty dollars of uninsured medical expenses.

 

Spencer E. Williams is the Team Leader over St Louis, St Charles, Indianapolis and Jeffco offices of Cordell & Cordell, P.C. where he practices exclusively in the area of domestic relations.

He is licensed in the states of Missouri and Georgia, and is a member of the Missouri, Kansas City Metropolitan and Georgia Bar Associations. He has argued cases before all three Missouri Appellate Districts. He received his J.D. and B.A. from the University of Missouri at Columbia.

Read more about this father-friendly attorney.