Other articles have addressed how to respond when the other party wants to move and relocate the minor child. The purpose of this article is to examine how relocation of one party might impact the financial orders in a divorce case (child support and maintenance). We will assume the relocation has been done lawfully and the only issue remaining is to see how the relocation impacts these financial orders. Please keep in mind each case is unique.
This article is written to be generally applicable but I will specifically rely on Kansas law in analyzing key issues. You should consult a domestic relations attorney to review your case in light of the law in your state.
A party could move after a divorce for any number of reasons.
There are three primary ones, however:
1) to be with a new spouse or romantic interest;
2) to be closer to family;
3) for a new job or a job transfer.
Of these three reasons, the new job or job transfer is the most directly relevant to the financial orders in a divorce case and I will spend most of this article on that specific reason. It is often helpful to look at an example rather than relying on vague descriptions.
To help in understanding the impact of relocation on the two financial orders we will assume the following facts: the father earns $100,000 per year, the mother earns $50,000 per year and the parties have one 5 year old child. Maintenance (also known as alimony) is paid to a former spouse and is based on the need of the recipient and the ability of the other party to pay. Often courts will use a formula to calculate maintenance. A typical formula would be the party with the greater income will pay 25% of the difference in gross income to the other if there are no minor children and 20% of the difference if there is a minor child or children. In our example there is one child, so the court will use 20% of the difference in incomes. At the divorce the court would order father to pay mother $10,000 per year ($833/mo.) in maintenance. Let us assume mother has decided to relocate and see how this impacts maintenance. Maintenance usually terminates upon the remarriage or cohabitation of the recipient. If she is relocating to be with a new spouse or romantic interest maintenance should terminate.
If, however, she is moving for a job transfer or a new job, maintenance may continue under different terms. If mother gets a promotion or new job that will pay her $65,000 per year, and the divorce decree allows modification of maintenance, father can ask the court to decrease maintenance based on the mother’s decreased need. The difference in gross income is now $35,000 so maintenance should be $7,000 per year ($583/mo.). A final factor to consider is maintenance can generally be decreased but not increased. If mother’s income increases to $65,000 father can request a reduction. If, instead, father’s income increases (or mother’s decreases) the maintenance cannot be increased without the consent of the payer. Child support is more complex than maintenance. The purpose of this article is not to review the calculation of child support but to examine the impact of relocation on the support calculated. There are three separate ways the relocation reviewed above can impact child support.
The first impact of the relocation is the impact of mother’s new income. Child support is based, in part, on the combined incomes of the parties and the relative percentages of that income for each of the parties. The higher the total income the more money the court assumes is spent raising the child. So if mother receives a raise as part of the relocation the parties will have a higher combined income. Mother’s percentage of the income also increases (from 33.3% to 39.4%). In other words, father’s child support is being pushed up by the increase in total income and also pulled down because his percentage of the total income is decreasing. It is possible for the child support figure to be higher or lower. The ultimate result will depend upon the specifics of the case. Kansas Child Support Guidelines specify that an increase in the residential parent’s income (in this example, mother’s income) cannot be the sole basis for increasing the non-residential parent’s (father’s) child support obligation. As a result, mother’s new job will either decrease father’s child support or leave it unchanged.
A second impact on the child support is from the cost of travel for exercising parenting time. If mother moves a great distance and it is necessary for either father or the child to fly in order to have parenting time, the cost of travel can be credited against child support. Note, if the situation is reversed and father is moving and mother is remaining behind, the child support guidelines still require travel costs to be taken into consideration by the court. However, since the costs are the result of father’s choice the costs may be credited against father’ support obligation at less than the full amount.
A third possible impact of the relocation on the child support is if father exercises an extended block of parenting time exceeding fourteen days. This is often the case when one party moves a great distance away. It is no longer possible to have parenting time every other weekend so the non-residential parent exercises a block of parenting time during school holidays or summer vacation. If the child stays with father for two months during the summer father is entitled to a reduction in child support to compensate him for all of the expenses he will incur directly for the child. Finally, the Kansas Child Support Guidelines also call for a pay differential raise adjustment if one party moves out of state. The purpose of the adjustment is to take into account the different cost of living in different states.
So, if one party moves from Kansas to New York. The average pay in New York is 50% more than the pay in Kansas. As a result, a party moving to New York for a 50% raise is actually not gaining due to the higher cost of living. The child support calculations take this into account and adjust the moving party’s income to account for the difference. A similar argument could be made in calculating maintenance, although there is no direct guideline on the point. As you can see, there are several factors to consider in reviewing the impact of relocation on the financial orders in a divorce case. A thorough analysis by a domestic relations attorney in your area can help you sort out the multiple adjustments to maintenance and child support which may be relevant in your case.
Ken McRae is a Cordell & Cordell, P.C. attorney practicing exclusively in family law in the firm’s Overland Park, Kansas office.