Indiana
Rules of Court
Child Support Rules and Guidelines
Adopted
Effective October 1, 1989
Including
Amendments Received Through January 1, 2020
Find child support forms at courts.in.gov
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Rules 1. Adoption of Child
Support Rules and Guidelines 2. Presumption 3. Deviation from Guideline
Amount Guidelines 1. Preface. 3. Determination of Child
Support Amount. A. Definition
of Weekly Gross Income. 1. Definition
of Weekly Gross Income. 2. Self-Employment,
Business Expenses, In-Kind Payments and Related Issues. 3. Unemployed,
Underemployed, and Potential Income. B. Income
Verification. 1. Submitting
Worksheet to Court. 2. Documenting
Income. C. Computation
of Weekly Adjusted Income. 1. Adjustment
for Subsequent born or Legally Adopted Child(ren). 2. Court Orders
for Prior-born Child(ren). 3. Legal Duty
of Support for Prior-born Child(ren) When No Court Order Exists. 4. Alimony or
Maintenance. D. Basic Child
Support Obligation. E. Additions to
the Basic Child Support Obligation. 1. Work-related
Child Care Expense. 2. Cost of
Health Insurance for Child(ren). 3. Extraordinary
Health Care Expense. 4. Extraordinary
Educational Expense. F. Computation
of Parent's Child Support Obligation. 1. Division of
Obligation Between Parents. 2. Deviation
from Guideline Amount. |
Guidelines (cont'd) G. Adjustments
to Parent's Child Support Obligation. 1. Obligation
from Post-Secondary Education Worksheet. 2. Weekly Cost
of Work-related Child Care Expenses. 3. Weekly Cost
of Health Insurance Premiums for Child(ren). 4. Parenting
Time Credit. 5. Effect of
Social Security Benefits. 7. Health Care/Medical
Support. Accessibility Reasonable cost Cash medical support Explanation of 6% rule/uninsured health
care expenses Birth expense Extraordinary educational expenses Other extraordinary expenses 9. Accountability, Tax
Exemptions, Rounding Child Support Amounts. Accountability of the custodial parent
for support received Tax exemptions Rounding child support amounts •
Child
Support Obligation Worksheet (CSOW) •
Parenting
Time Credit Worksheet •
Post-Secondary
Education Worksheet (PSEW) •
Guideline
Schedules for Weekly Support Payments |
Support Rule 1. Adoption of Child Support
Rules and Guidelines
The Indiana Supreme Court hereby adopts the
Indiana Child Support Guidelines, as drafted by the Judicial Administration
Committee and adopted by the Board of the Judicial Conference of Indiana and
all subsequent amendments thereto presented by the Domestic Relations Committee
of the Judicial Conference of Indiana, as the Child Support Rules and
Guidelines of this Court.
In any proceeding for the award of child
support, there shall be a rebuttable presumption that the amount of the award
which would result from the application of the Indiana Child Support Guidelines
is the correct amount of child support to be awarded.
Support Rule 3. Deviation from Guideline
Amount
If the court concludes from the evidence in
a particular case that the amount of the award reached through application of
the guidelines would be unjust, the court shall enter a written finding
articulating the factual circumstances supporting that conclusion.
INDIANA CHILD SUPPORT GUIDELINES
Guidelines to
determine levels of child support and educational support were developed by the
Judicial Administration Committee of the Judicial Conference of Indiana and
adopted by the Indiana Supreme Court. The guidelines are consistent with the
provisions of Indiana Code Title 31 which place a duty for child support and
educational support upon parents based upon their financial resources and
needs, the standard of living the child would have enjoyed had the marriage not
been dissolved or had the separation not been ordered, the physical or mental
condition of the child, and the child's educational needs.
The Guidelines
have three objectives:
(1)
To establish as state policy an appropriate standard of support for children,
subject to the ability of parents to financially contribute to that support;
(2) To make awards more equitable by ensuring more
consistent treatment of people in similar circumstances; and,
(3)
To improve the efficiency of the court process by promoting settlements and
giving courts and the parties guidelines in settling the level of awards.
The Indiana Child
Support Guidelines are based on the Income Shares Model, developed by the Child
Support Project of the National Center for State Courts. The Income Shares
Model is predicated on the concept that the child should receive the same
proportion of parental income that he or she would have received if the parents
lived together. Because household spending on behalf of children is intertwined
with spending on behalf of adults for most expenditure categories, it is
difficult to determine the proportion allocated to children in individual
cases, even with exhaustive financial information. However, a number of
authoritative economic studies provide estimates of the average amount of
household expenditure on children in intact households. These studies have
found the proportion of household spending devoted to children is related to
the level of household income and to the number and ages of children. The
Indiana Child Support Guidelines relate the level of child support to income
and the number of children. In order to provide simplicity in the use of the
Guidelines, however, child support figures reflect a blend of all age
categories weighted toward school age children.
Based on this economic evidence, the Indiana
Child Support Guidelines calculate child support as the share of each parent's
income estimated to have been spent on the child if the parents and child were
living in an intact household. The calculated amount establishes the level of
child support for both the custodial and non-custodial parent. Absent grounds
for a deviation, the custodial parent should be required to make monetary
payments of child support, if application of the parenting time credit would so
require.
History of Development. In
June of 1985, the Judicial Reform Committee (now the Judicial Administration
Committee) of the Judicial Conference of Indiana undertook the task of
developing child support guidelines for use by Indiana judges. While the need
had been long recognized in Indiana, the impetus for this project came from
federal statutes requiring guidelines to be in place no later than October 1,
1987. P.L. 98‑378. Paradoxically, guidelines did not need to be mandatory
under the 1984 federal legislation to satisfy federal requirements; they were
only required to be made available to judges and other officials with authority
to establish child support awards. 45 CFR Ch. III, § 302.56.
The final draft was completed by the Judicial
Reform Committee on July 24, 1987, and was presented to the Judicial Conference
of Indiana Board of Directors on September 17, 1987. The Board accepted the
report of the Reform Committee, approved the Guidelines and recommended their
use to the judges of Indiana in all matters of child support.
Family Support
Act of 1988. On October 13,
1988, the United States Congress passed the "Family Support Act of
1988," P.L. 100‑485 amending the Social Security Act by deleting the
original language which made application of the Guideline discretionary and
inserted in its place the following language:
"There shall be a rebuttable
presumption, in any judicial or administrative proceeding for the award of
child support, that the amount of the award which would result from the
application of such guidelines is the correct amount of child support to be
awarded. A written finding or specific finding on the record that the
application of the guidelines would be unjust or inappropriate in a particular
case, as determined under criteria established by the State, shall be
sufficient to rebut the presumption in that case." P.L. 100‑485, §
103(a)(2).
The original
Guidelines that went into effect October 1, 1987 and their commentary were
revised by the Judicial Administration Committee to reflect the requirement
that child support guidelines be a rebuttable presumption. The requirement
applies to all cases where support is set after October 1, 1989, including
actions brought under Title IV‑D of the Social Security Act (42 U.S.C.A.
§ 651‑669). Also, after October 1, 1989, counties and individual courts
may not opt to use alternate methods of establishing support. The Indiana Child
Support Guidelines were required to be in use in all Indiana courts in all
proceedings where child support is established or modified on and after October
1, 1989.
Periodic Review of Guidelines and Title IV‑D
Awards. The "Family
Support Act of 1988" also requires that the Guidelines be reviewed at
least every four years "to assure their application results in the
determination of appropriate child support award amounts." P.L. 100‑485,
§ 103(b). Further, each state must develop a procedure to ensure that all Title
IV‑D awards are periodically reviewed to ensure that they comply with the
Guidelines. P.L. 100‑485, § 103(c).
Compliance With
State Law. The Child
Support Guidelines were developed specifically to comply with federal
requirements, as well as Indiana law.
Objectives of the
Indiana Child Support Guidelines. The
following three objectives are specifically articulated in the Indiana Child
Support Guidelines:
1. To
establish as state policy an appropriate standard of support for children,
subject to the ability of parents to financially contribute to that support.
When the Guidelines were first recommended for use by the Indiana Judicial
Conference on September 17, 1987, many courts in the state had no guideline to
establish support. Many judges had expressed the need for guidelines, but few
had the resources to develop them for use in a single court system. The time,
research and economic understanding necessary to develop meaningful guidelines
were simply beyond the resources of most individual courts.
2. To
make awards more equitable by ensuring more consistent treatment of people in
similar circumstances. This consistency can be expected not only in the
judgments of a particular court, but between jurisdictions as well. What is
fair for a child in one court is fair to a similarly situated child in another
court.
3. To
improve the efficiency of the court process by promoting settlements and giving
courts and the parties guidelines in settling the level of awards. In
other words, when the outcome is predictable, there is no need to fight. Because
the human experience provides an infinite number of variables, no guideline can
cover every conceivable situation, so litigation is not completely forestalled
in matters of support. If the Guidelines are consistently applied, however,
those instances should be minimized.
Economic Data
Used in Developing Guidelines. What
does it take to support a child? The question is simple, but the answer is
extremely complex. Yet, the question must be answered if an adequate amount of
child support is to be ordered by the court. Determining the cost attributable
to children is complicated by intertwined general household expenditures. Rent,
transportation, and grocery costs, to mention a few, are impossible to
accurately apportion between family members. In developing these Guidelines, a
great deal of reliance was placed on the research of Thomas J. Espenshade,
(Investing In Children, Urban Institute Press, 1984) generally considered the
most authoritative study of household expenditure patterns. Espenshade used
data from 8,547 households and from that data estimated average expenditures
for children present in the home. Espenshade's estimates demonstrate that
amounts spent on the children of intact households rise as family income
increases. They further demonstrate at constant levels of income that
expenditures decrease for each child as family size increases. These principles
are reflected in the Guideline Schedules for Weekly Support Payments, which are
included in the Indiana Child Support Guidelines. By demonstrating how
expenditures for each child decrease as family size increases, Espenshade
should have put to rest the previous practice of ordering equal amounts of
support per child when two or more children are involved. Subsequent guidelines
reviews have considered more current economic studies of child-rearing
expenditures (e.g., Mark Lino, Expenditures on Children by Families: 2006
Annual Report, United States Department of Agriculture, 2007; David Betson,
State of Oregon Child Support Guidelines Review: Updated Obligation Scales and
Other Considerations, report to State of Oregon Department of Justice, 2006). These
periodic guidelines reviews have concluded that the Indiana Guidelines based on
the Espenshade estimates are generally within the range of more current
estimates of child-rearing expenditures. A notable exception at high incomes
leveled off the child support schedule for combined weekly adjusted incomes
above $4,000. In 2009 this exception was removed. The increase is now
incorporated into the schedule up to combined weekly adjusted incomes of $10,000
and a formula is provided for incomes above that amount. Previously, a formula
was provided for combined weekly adjusted incomes above $4,000.
Income Shares
Model. After review of
five approaches to the establishment of child support, the Income Shares Model
was selected for the Indiana Guidelines. This model was perceived as the
fairest approach for children because it is based on the premise that children
should receive the same proportion of parental income after a dissolution that
they would have received if the family had remained intact. Because it then
apportions the cost of children between the parents based on their means, it is
also perceived as being fair to parents. In applying the Guidelines, the
following steps are taken:
1. The gross income of both parents is
added together after certain adjustments are made. A percentage share of income
for each parent is then determined.
2. The total is
taken to the support tables, referred to in the Indiana Guidelines as the
Guideline Schedules for Weekly Support Payments, to determine the total cost of
supporting a child or children.
3. Work‑related
child care expenses and the weekly costs of health insurance premiums for the
child(ren) are then added to the basic child support obligation.
4. The child
support obligation is then prorated between the parents, based on their
proportionate share of the weekly adjusted income, hence the name "income
shares."
The Income Shares Model was developed by The
Institute for Court Management of the National Center for State Courts under
the Child Support Guidelines Project. This approach was designed to be
consistent with the Uniform Marriage and Divorce Act, the principles of which
are consistent with IC 31‑16‑6‑1. Both require the court to
consider the financial resources of both parents and the standard of living the
child would have enjoyed in an intact family.
Gross Versus Net
Income. One of the
policy decisions made by the Judicial Administration Committee in the early
stages of developing the Guidelines was to use a gross income approach as
opposed to a net income approach. Under a net income approach, extensive
discovery is often required to determine the validity of deductions claimed in
arriving at net income. It is believed that the use of gross income reduces
discovery. (See Commentary to Guideline 3A). While the use of gross income has
proven controversial, this approach is used by the majority of jurisdictions
and, after a thorough review, is considered the best reasoned.
The basic support obligation would be the same
whether gross income is reduced by adjustments built into the Guidelines or
whether taxes are taken out and a net income option is used. A support
guideline schedule consists of a column of income figures and a column of
support amounts. In a gross income methodology, the tax factor is reflected in
the support amount column, while in a net income guideline, the tax factor is
applied to the income column. In devising the Indiana Guidelines, an average
tax factor of 21.88 percent was used to adjust the support column.
Of course, taxes vary for different
individuals. This is the case whether a gross or net income approach is used. Under
the Indiana Guideline, where taxes vary significantly from the assumed rate of
21.88 percent, a trial court may choose to deviate from the guideline amount
where the variance is substantiated by evidence at the support hearing.
Flexibility Versus the Rebuttable Presumption. Although application of the Guideline yields a
figure that becomes a rebuttable presumption, there is room for flexibility. Guidelines
are not immutable, black letter law. A strict and totally inflexible
application of the Guidelines to all cases can easily lead to harsh and
unreasonable results. If a judge believes that in a particular case application
of the Guideline amount would be unreasonable, unjust, or inappropriate, a
finding must be made that sets forth the reason for deviating from the Guideline
amount. The finding need not be as formal as Findings of Fact and Conclusions
of Law; the finding need only articulate the judge's reasoning. For example, if
under the facts and circumstances of the case, the noncustodial parent would
bear an inordinate financial burden, the following finding would justify a
deviation:
"Because the noncustodial parent
suffers from a chronic medical condition requiring uninsured medical expenses
of $357.00 per month, the Court believes that setting child support in the
Guideline amount would be unjust and instead sets support in the amount of
$___per week."
Agreed Orders submitted to the court must
also comply with the "rebuttable presumption" requirement; that is,
the order must recite why the order deviates from the Guideline amount.
1. Phasing in Support Orders. Some courts may find it desirable
in modification proceedings to gradually implement the Guideline order over a
period of time, especially where support computed under the Guideline is
considerably higher than the amount previously paid. Enough flexibility exists
in the Guidelines to permit that approach, as long as the judge's rationale is
explained with an entry such as:
"The Guideline's support represents an
increase of 40%, and the court finds that such an abrupt change in support
obligation would render the obligor incapable of meeting his/her other
established obligations. Therefore, the Court sets support in the amount of
$_____ and, on October 1, 20___, it shall increase to $_____ and, on September
1, 20__, obligor shall begin paying the Guideline amount of $_____."
2. Situations Calling for Deviation. An infinite number of situations may prompt a judge to deviate
from the Guideline amount. For illustration only, and not as a complete list,
the following examples are offered:
•
One or both parties pay union dues as a
condition of employment.
•
A party provides support for an elderly
parent.
•
The noncustodial parent purchases school
clothes.
•
The noncustodial
parent has extraordinary medical expenses for himself or herself.
•
A parent is a member of the armed
forces and the military provides housing.
•
The obligor is
still making periodic payments to a former spouse pursuant to a prior
Dissolution Decree.
•
One of the parties is required to travel an
unusually long distance in the course of employment on a regular or daily basis
and incurs an unusually large expense for such travel, and
•
The custodial or noncustodial parent incurs
significant travel expense in exercising parenting time.
Again, no attempt has been made to define every
possible situation that could conceivably arise when determining child support
and to prescribe a specific method of handling each of them. Practitioners must
keep this in mind when advising clients and when arguing to the court. Many
creative suggestions will undoubtedly result. Judges must also avoid the
pitfall of blind adherence to the computation for support without giving
careful consideration to the variables that require changing the result in
order to do justice.
GUIDELINE 2. USE OF THE GUIDELINES
The Guideline
Schedules provide calculated amounts of child support. For obligors with a
combined weekly adjusted income, as defined by these Guidelines, of less than
$100.00, the Guidelines provide for case‑by‑case determination of
child support. When a parent has extremely low income the amount of child
support recommended by use of the Guidelines should be carefully scrutinized. The
court should consider the obligor's income and living expenses to determine the
maximum amount of child support that can reasonably be ordered without denying
the obligor the means for self‑support at a minimum subsistence level. A
numeric amount of child support shall be ordered; however, there are situations
where a $0.00 support order is appropriate.
Temporary
maintenance may be awarded by the court not to exceed thirty‑five percent
(35%) of the obligor's weekly adjusted income. In no case shall child support
and temporary maintenance exceed fifty percent (50%) of the obligor's weekly
adjusted income. Temporary maintenance and/or child support may be ordered by
the court either in dollar payments or "in‑kind" payments of
obligations.
Federal law
requires the Indiana Child Support Guidelines be applied in every instance in which
child support is established including, but not limited to, dissolutions of
marriage, legal separations, paternity actions, juvenile proceedings, petitions
to establish support and Title IV D proceedings.
Indiana requires
worksheets, including a Child Support Obligation Worksheet, to assist judges,
practitioners, and parents in calculating the presumptive amount of child
support under the Guidelines.
Minimum Support. The
Guideline's schedules for weekly support payments do not provide an amount of
support for couples with combined weekly adjusted income of less than $100.00. Consequently,
the Guidelines do not establish a minimum support obligation. Instead the facts
of each individual case must be examined and support set in such a manner that
the obligor is not denied a means of self‑support at a subsistence level.
For example, (1) a parent who has a high parenting time credit; (2) a parent
who suffers from debilitating mental illness; (3) a parent caring for a
disabled child; (4) an incarcerated parent; (5) a parent or a family member
with a debilitating physical health issue; or, (6) a natural disaster are
significant but not exclusive factors for the court to consider in setting a
child support order. The court should not automatically attribute minimum wage
to parents who, for a variety of factors, are not capable of earning minimum
wage.
Where parents live together with the child
and share expenses, a child support worksheet shall be completed and a $0.00
order may be entered as a deviation.
Temporary Maintenance. It
is recommended that temporary maintenance not exceed thirty‑five percent
(35%) of the obligor's weekly adjusted income. The maximum award should be
reserved for those instances where the custodial spouse has no income or no
means of support, taking into consideration that spouse's present living
arrangement (i.e., whether or not he or she lives with someone who shares or
bears the majority of the living expense, lives in the marital residence with
little or no expense, lives in military housing, etc.).
It is further recommended that the total of
temporary maintenance and child support should not exceed fifty percent (50%)
of the obligor's weekly adjusted income. In computing temporary maintenance, in‑kind
payments, such as the payment of utilities, house payments, rent, etc., should
also be included in calculating the percentage limitations. Care must also be
taken to ensure that the obligor is not deprived of the ability to support
himself or herself.
Spousal Maintenance. It
should also be emphasized that the recommendations concerning maintenance apply
only to temporary maintenance, not maintenance in the Final Decree. An award of
spousal maintenance in the Final Decree must, of course, be made in accordance
with Indiana statute. These Guidelines do not alter those requirements. Theoretically,
when setting temporary maintenance, child support should come first. That is,
if child support is set at forty percent (40%) of the obligor's weekly adjusted
income, only a maximum of ten percent (10%) of the obligor's income would be
available for maintenance. That distinction, however, makes little practical
difference. As with temporary maintenance, care should be taken to leave the
obligor with adequate income for subsistence. In many instances the court will
have to review the impact of taxes on the obligor's income before entering an
order for spousal maintenance in addition to child support to avoid injustice
to the obligor.
The worksheet provides a deduction for spousal
maintenance paid (Line 1D). Caution should be taken to assure that any credit
taken is for maintenance and not for periodic payments as the result of a
property settlement. No such deduction is given for amounts paid by an obligor
as the result of a property settlement, although that is a factor the court may
wish to consider in determining the obligor's ability to pay the scheduled
amount of support at the present time. Again, flexibility was intended
throughout the Guidelines and they were not intended to place the obligor in a
position where he or she loses all incentive to comply with the orders of the
court.
Guidelines to be Applied in all Matters of
Child Support. The Indiana Child Support Guidelines shall
be applied in every instance in which child support is established including,
but not limited to, dissolutions of marriage, legal separations, paternity
actions, juvenile proceedings, petitions to establish support and Title IV‑D
proceedings.
The Indiana legislature requires the
Indiana Child Support Guidelines be applied and the Child Support Worksheet be used in determining the manner in
which financial services to children that are CHINS (Child in Need of Services)
or delinquent are to be repaid. Similarly, the legislature requires the court
to use the Guidelines to determine the financial contribution required from
each parent of a child or the guardian of the child's estate for costs
associated with the institutional placement of a child.
GUIDELINE 3. DETERMINATION OF CHILD SUPPORT AMOUNT
A. Definition of Weekly Gross Income.
1. Definition of
Weekly Gross Income (Line 1 of Worksheet). For purposes
of these Guidelines, "weekly gross income" is defined as actual
weekly gross income of the parent if employed to full capacity, potential
income if unemployed or underemployed, and the value of "in‑kind"
benefits received by the parent. Weekly gross income of each parent includes
income from any source, except as excluded below, and includes, but is not
limited to, income from salaries, wages, commissions, bonuses, overtime,
partnership distributions, dividends, severance pay, pensions, interest, trust
income, annuities, structured settlements, capital gains, social security
benefits, worker's compensation benefits, unemployment insurance benefits,
disability insurance benefits, gifts, inheritance, prizes, and alimony or
maintenance received.
Social
Security disability benefits paid for the benefit of the child must be included
in the disabled parent's gross income. The disabled parent is entitled to a
credit for the amount of Social Security disability benefits paid for the
benefit of the child.
Certain
Exclusions from Income. Specifically excluded are benefits from means‑tested
public assistance programs, including, but not limited to, Temporary Aid to
Needy Families (TANF), Supplemental Security Income, and Food Stamps. Also
excluded are survivor benefits received by or for other children residing in
either parent's home.
2. Self‑Employment,
Business Expenses, In‑Kind Payments and Related Issues. Weekly Gross Income from self‑employment,
operation of a business, rent, and royalties is defined as gross receipts minus
ordinary and necessary expenses. In general, these types of income and expenses
from self‑employment or operation of a business should be carefully
reviewed to restrict the deductions to reasonable out‑of‑pocket
expenditures necessary to produce income. These expenditures may include a
reasonable yearly deduction for necessary capital expenditures. Weekly Gross
Income from self‑employment may differ from a determination of business
income for tax purposes.
Expense
reimbursements or in‑kind payments received by a parent in the course of
employment, self‑employment, or operation of a business should be counted
as income if they are significant and reduce personal living expenses. Such
payments might include a company car, free housing, or reimbursed meals.
The self‑employed
shall be permitted to deduct that portion of their FICA tax payment that
exceeds the FICA tax that would be paid by an employee earning the same Weekly
Gross Income.
3. Unemployed,
Underemployed and Potential Income. If a court finds a parent is voluntarily
unemployed or underemployed without just cause, child support shall be calculated
based on a determination of potential income. A determination of potential
income shall be made by determining employment potential and probable earnings
level based on the obligor's employment and earnings history, occupational
qualifications, educational attainment, literacy, age, health, criminal record
or other employment barriers, prevailing job opportunities, and earnings levels
in the community. If there is no employment and earnings history and no higher
education or vocational training, the facts of the case may indicate that
Weekly Gross Income be set at least at the federal minimum wage level, provided
the resulting child support amount is set in such a manner that the obligor is
not denied a means of self-support at a subsistence level.
Weekly Gross Income.
1. Child Support Calculations Generally. Weekly
Gross Income, potential income, weekly adjusted income and basic child support
obligation have very specific and well‑defined meanings within the
Indiana Child Support Guidelines. Their definitions are not repeated in the
Commentary, but further explanation follows.
2. Determination of Weekly Gross Income. Weekly Gross Income is the starting point in determining
the child support obligation, and it must be calculated for both parents. If
one or both parents have no income, then potential income may be calculated and
used as Weekly Gross Income. Likewise, imputed income may be substituted for,
or added to, other income in arriving at Weekly Gross Income. It includes such
items as free housing, a company car that may be used for personal travel, and
reimbursed meals or other items received by the obligor that reduce his or her
living expenses.
The Child Support Obligation Worksheet does
not include space to calculate Weekly Gross Income. It must be calculated
separately and the result entered on the worksheet.
In calculating Weekly Gross Income, it is
helpful to begin with total income from all sources. This figure may not be the
same as gross income for tax purposes. Internal Revenue Code of 1986, § 61. Means‑tested
public assistance programs (those based on income) are excluded from the
computation of Weekly Gross Income, but other government payments, such as
Social Security benefits and veterans pensions/retired pay, should be included.
However, survivor benefits paid to or for the benefit of their children are not
included. In cases where a custodial parent is receiving, as a representative
payee for a prior born child, Social Security survivor benefits because of the
death of the prior born child's parent, the court should carefully consider
Line 1 C of the basic child support obligation worksheet, Legal Duty of Support
for Prior-born Children. Because the deceased parent's contribution for the
support of the prior born child is being partially paid by Social Security
survivor benefits that are excluded from Weekly Gross Income, the court should
not enter, on Line 1C, an amount that represents 100% of the cost of support
for the prior born child. The income of the spouses of the parties is not
included in Weekly Gross Income.
A court may not consider the incarceration
of a parent as voluntary unemployment and his or her potential income should
not be assessed for the establishment or modification of child support. I.C.
31-16-8-1 (d).
a. Self‑Employment,
Rent and Royalty Income. Calculating
Weekly Gross Income for the self‑employed or for those who receive rent
and royalty income presents unique problems, and calls for careful review of
expenses. The principle involved is that actual expenses are deducted, and
benefits that reduce living expenses (i.e. company cars, free lodging,
reimbursed meals, etc.) should be included in whole or in part. It is intended
that actual out‑of‑pocket expenditures for the self‑employed,
to the extent that they are reasonable and necessary for the production of
income, be deducted. Reasonable deductions for capital expenditures may be
included. While income tax returns may be helpful in arriving at Weekly Gross
Income for a self‑employed person, the deductions allowed by the
Guidelines may differ significantly from those allowed for tax purposes.
The self‑employed pay FICA tax at twice the rate that is
paid by employees. At present rates, the self‑employed pay fifteen and
thirty one‑hundredths percent (15.30%) of their gross income to a
designated maximum, while employees pay seven and sixty‑five one-hundredths
percent (7.65%) to the same maximum. The self‑employed are therefore
permitted to deduct one‑half of their FICA payment when calculating
Weekly Gross Income.
b.
Overtime, Commissions, Bonuses and Other Forms of Irregular Income. There
are numerous forms of income that are irregular or nonguaranteed, which cause
difficulty in accurately determining the gross income of a party. Overtime,
commissions, bonuses, periodic partnership distributions, voluntary extra work
and extra hours worked by a professional are all illustrations, but far from an
all‑inclusive list, of such items. Each is includable in the total income
approach taken by the Guidelines, but each is also very fact sensitive.
Each of the above items is sensitive to
downturns in the economy. The fact that overtime, for example, has been
consistent for three (3) years does not guarantee that it will continue in a
poor economy. Further, it is not the intent of the Guidelines to require a
party who has worked sixty (60) hour weeks to continue doing so indefinitely
just to meet a support obligation that is based on that higher level of earnings.
Care should be taken to set support based on dependable income, while at the
same time providing children with the support to which they are entitled.
When the court determines that it is not
appropriate to include irregular income in the determination of the child
support obligation, the court should express its reasons. When the court
determines that it is appropriate to include irregular income, an equitable
method of treating such income may be to require the obligor to pay a fixed
percentage of overtime, bonuses, etc., in child support on a periodic but
predetermined basis (weekly, bi‑weekly, monthly, quarterly) rather than
by the process of determining the average of the irregular income by past
history and including it in the obligor's gross income calculation.
One method of treating irregular income is
to determine the ratio of the basic child support obligation (line 4 of the
worksheet) to the combined weekly adjusted income (line 3 of the worksheet) and
apply this ratio to the irregular income during a fixed period. For example, if
the basic obligation was $110.00 and the combined income was $650.00, the ratio
would be .169 ($110.00 / $650.00). The order of the court would then require
the obligor to make a lump sum payment of .169 of the obligor's irregular
income received during the fixed period.
The use of this ratio will not result in an exact
calculation of support paid on a weekly basis. It will result in an
overstatement of the additional support due, and particularly so when average
irregular income exceeds $250.00 per week or exceeds 75% of the regular
adjusted Weekly Gross Income. In these latter cases the obligor may seek to
have the irregular income calculation redetermined by the court.
Another form of irregular income may exist
when an obligor takes a part‑time job for the purpose of meeting
financial obligations arising from a subsequent marriage, or other
circumstances. Modification of the support order to include this income or any
portion of it may require that the obligor continue with that employment just
to meet an increased support obligation, resulting in a disincentive to work.
Judges and practitioners should be
innovative in finding ways to include income that would have benefited the
family had it remained intact, but be receptive to deviations where reasons
justify them. The foregoing discussion should not be interpreted to exclude
consideration of irregular income of the custodial parent.
c.
Potential Income. Potential income may be determined if a
parent has no income, or only means‑tested income, and is capable of
earning income or capable of earning more. Obviously, a great deal of
discretion will have to be used in this determination. One purpose of potential
income is to discourage a parent from taking a lower paying job to avoid the
payment of significant support. Another purpose is to fairly allocate the
support obligation when one parent remarries and, because of the income of the
new spouse, chooses not to be employed. However, attributing potential income
that results in an unrealistic child support obligation may cause the
accumulation of an excessive arrearage, and be contrary to the best interests
of the child(ren). Research shows that on average more noncustodial parental
involvement is associated with greater child educational attainment and lower
juvenile delinquency. Ordering support for low-income parents at levels they
can reasonably pay may improve noncustodial parent-child contact; and in turn,
the outcomes for their children. The six examples which follow illustrate some
of the considerations affecting attributing potential income to an unemployed
or underemployed parent.
(1) When a custodial parent with young
children at home has no significant skills or education and is unemployed, he
or she may not be capable of entering the work force and earning enough to even
cover the cost of child care. Hence, it may be inappropriate to attribute any
potential income to that parent. It is not the intention of the Guidelines to
force all custodial parents into the work force. Therefore, discretion must be
exercised on an individual case basis to determine if it is fair under the circumstances
to attribute potential income to a particular nonworking or underemployed
custodial parent. The need for a custodial parent to contribute to the
financial support of a child must be carefully balanced against the need for
the parent's full‑time presence in the home.
(2) When a parent has some history of
working and is capable of entering the work force, but without just cause
voluntarily fails or refuses to work or to be employed in a capacity in keeping
with his or her capabilities, such a parent's potential income shall be
included in the gross income of that parent. The amount to be attributed as
potential income in such a case may be the amount that the evidence
demonstrates he or she was capable of earning in the past. If for example the
custodial parent had been a nurse or a licensed engineer, it may be
unreasonable to determine his or her potential at the minimum wage level. Discretion
must be exercised on an individual case basis to determine whether under the
circumstances there is just cause to attribute potential income to a particular
unemployed or underemployed parent.
(3) Even though an unemployed parent has
never worked before, potential income should be considered for that parent if
he or she voluntarily remains unemployed without justification. Absent any
other evidence of potential earnings of such a parent, the federal minimum wage
should be used in calculating potential income for that parent. However, the
court should not add child care expense that is not actually incurred.
(4) When a parent is unemployed by reason
of involuntary layoff or job termination, it still may be appropriate to
include an amount in gross income representing that parent's potential income. If
the involuntary layoff can be reasonably expected to be brief, potential income
should be used at or near that parent's historical earning level. If the
involuntary layoff will be extensive in duration, potential income may be
determined based upon such factors as the parent's unemployment compensation,
job capabilities, education and whether other employment is available. Potential
income equivalent to the federal minimum wage may be attributed to that parent.
(5) When a parent is unable to obtain
employment because that parent suffers from debilitating mental illness, a debilitating
health issue, or is caring for a disabled child, it may be inappropriate to
attribute any potential income to that parent.
(6) When a parent is incarcerated and has
no assets or other source of income, potential income should not be attributed.
d. In-Kind Benefits. Whether or not the value of in-kind benefits should be
included in a parent's weekly gross income is fact-sensitive and requires
careful consideration of the evidence in each case. It may be inappropriate to
include as gross income occasional gifts received. However, regular and
continuing payments made by a family member, subsequent spouse, roommate or
live in friend that reduce the parent's costs for housing, utilities, or
groceries, may be included as gross income. If there were specific living
expenses being paid by a parent which are now being regularly and continually
paid by that parent's current spouse or a third party, the value of those
assumed expenses may be considered to be in-kind benefits and included as part
of the parent's weekly gross income. The marriage of a parent to a spouse with
sufficient affluence to obviate the necessity for the parent to work may give
rise to a situation where either potential income or the value of in-kind
benefits or both should be considered in arriving at gross income.
e.
Return from Individual Retirement Accounts and other retirement plans. The
annual return of an IRA, 401(K) or other retirement plan that is automatically
reinvested does not constitute income. Where previous withdrawals from the IRA
or 401(K) have been made to fund the parent's lifestyle choices or living
expenses, these withdrawals may be considered "actual income" when calculating
the parent's child support obligation. The withdrawals must have been received
by the parent and immediately available for his or her use. The court should
consider whether the early withdrawal was used to reduce the parent's current
living expenses, whether it was utilized to satisfy on-going financial
obligations, and whether the sums are immediately available to the parent. This
is a fact-sensitive situation. Retirement funds which were in existence at the
time of a dissolution and which were the subject of the property division would
not be considered "income" when calculating child support.
1. Submitting
Worksheet to Court. In all cases, a copy of the worksheet which
accompanies these Guidelines shall be completed and filed with the court when
the court is asked to order support. This includes cases in which agreed orders
are submitted. Worksheets shall be signed by both parties, not their counsel,
under penalties for perjury.
2. Documenting Income. Income
statements of the parents shall be verified with documentation of both current
and past income. Suitable documentation of current earnings includes paystubs,
employer statements, or receipts and expenses if self‑employed. Documentation
of income may be supplemented with copies of tax returns.
Worksheet Documentation.
1. Worksheet Requirement. Submission of the worksheet became a requirement in 1989 when use of the Guidelines became mandatory. The Family Support Act of 1988 requires that a written finding be made when establishing support. In Indiana, this is accomplished by submission of a child support worksheet. The worksheet memorializes the basis upon which the support order is established. Failure to submit a completed child support worksheet may, in the court's discretion, result in the court refusing to approve a child support order or result in a continuance of a hearing regarding child support until a completed worksheet is provided. At subsequent modification hearings the court will then have the ability to accurately determine the income claimed by each party at the time of the prior hearing.
If the parties disagree on their respective gross incomes, the court shall include in its order the gross income it determines for each party. When the court deviates from the Guideline amount, the order or decree should also include the reason or reasons for deviation. This information becomes the starting point to determine whether or not a substantial and continuing change of circumstance occurs in the future.
2. Verification of Income. The requirement of income verification is not a change in the law but merely a suggestion to judges that they take care in determining the income of each party. One pay stub standing alone can be very misleading, as can other forms of documentation. This is particularly true for salesmen, professionals and others who receive commissions or bonuses, or others who have the ability to defer payments, thereby distorting the true picture of their income in the short term. When in doubt, it is suggested that income tax returns for the last two or three years be reviewed.
C. Computation of Weekly Adjusted Income (Line 1E of Worksheet).
After
Weekly Gross Income is determined, certain reductions are allowed in computing
weekly adjusted income which is the amount on which child support is based. These
reductions are specified below.
1. Adjustment for Subsequent-born or Legally Adopted Child(ren)
(Line 1A of Worksheet). There shall be an
adjustment to Weekly Gross Income of parents who have a legal duty or court
order to support children (1)born or legally adopted subsequent to the birthdates(s)
of the child(ren) subject of the child support order and (2)that parent is
actually meeting or paying that obligation.
2. Court Orders for Prior‑born Child(ren) (Line 1B of
Worksheet). The amount(s) of any court order(s) for
child support for prior‑born children shall be deducted from Weekly Gross
Income. This should include court ordered post-secondary education expenses
calculated on an annual basis divided by 52 weeks. A credit shall not be given
for any portion of the order addressing arrearages.
3. Legal Duty of Support for Prior‑born Child(ren) When
No Court Order Exists (Line 1C of Worksheet). Where a party
has a legal duty to financially support children born prior to the child(ren)
for whom support is being established, and no court order exists, an amount
reasonably necessary for such support actually paid, or funds actually spent shall
be deducted from weekly gross income to arrive at weekly adjusted income. This
deduction is not allowed for step‑children.
4. Alimony or Maintenance (Line 1D of Worksheet). The amount(s) of alimony ordered in decrees from
foreign jurisdictions or maintenance should be deducted from Weekly Gross
Income.
Determining Weekly Adjusted Income. After
Weekly Gross Income is determined, the next step is to compute weekly adjusted
income (Line 1E of the Worksheet). Certain deductions, discussed below, are
allowed from Weekly Gross Income in arriving at weekly adjusted income.
1. Adjustment of Weekly Gross
Income for Subsequent-born or Legally Adopted Child(ren). The
adjustment should be computed as follows:
STEP
1: Determine the number of children born or legally adopted by the parents
subsequent to the birthdate(s) of the child(ren) subject of the child support
order and for whom the parent has a legal duty or court order to support. The
parent seeking the adjustment has the burden to prove the support is actually
paid if the subsequent child does not live in the respective parent's
household.
STEP
2: Calculate the subsequent child credit by multiplying the parent's Weekly
Gross Income by the appropriate factor listed in the table below and enter the
product on Line 1A on the Worksheet.
Appropriate factors are:
1 Subsequent child .065
2 Subsequent children .097
3 Subsequent children .122
4 Subsequent children .137
5 Subsequent children .146
6 Subsequent children .155
7 Subsequent children .164
8 Subsequent children .173
EXAMPLE:
A noncustodial parent has a Weekly Gross Income, before adjustment, of $500.00.
The custodial parent has a Weekly Gross Income, before adjustment, of $300.00. An
adjustment shall be made to the parents' respective Weekly Gross Incomes for
the two (2) children born to the noncustodial parent after the birthdates(s) of
the child(ren) subject of the child support order and the one (1) adopted child
of the custodial parent, legally adopted after the birthdate(s) of the
child(ren) subject of the child support order. The respective subsequent child adjustment
to be entered on Line 1A of the Worksheet would be as follows:
Noncustodial………$500.00
x .097 = $48.50 adjustment
Custodial………$300.00
x .065 = $19.50 adjustment
2. Court Orders for Prior born Child(ren). The
party seeking the adjustment for the court ordered child support obligation
bears the burden of establishing the actual existence of the order and the
amount of the order.
3. Legal Duty to Support for
Prior-born Child(ren) When No Court Order Exists.
A.
Prior Born Child(ren) Not in the Home. A deduction is allowed for reasonably
necessary support actually paid, or funds actually spent, for the child(ren)
born prior to the child(ren) for whom support is being established. This is
true even though that obligation has not been reduced to a court order. The
party seeking the deduction bears the burden of proving the obligation and
satisfaction of the obligation.
The
court may consider evidence of those funds paid or routinely spent on behalf of
the prior born child(ren).
For
example, paternity of the prior born child was established by execution of a
paternity affidavit and the parents lived together for the first two years of
the child's life. The parties then separated and negotiated an agreement for
the ongoing financial support of the child, without seeking a court order. Father
has routinely paid $50 per week to the mother of his prior born child and has
evidence to support those payments.
B.
Prior Born Child(ren) In the Home. A parent should be permitted to deduct his
or her portion of the support obligation for prior born children living in his
or her home. It is recommended that these guidelines be used to compute a
deduction from weekly gross income.
i. Incomes
of Both Parents Known: If the actual incomes of both parents of the prior
born child(ren) are known, then the actual incomes should be utilized in
calculating the basic child support obligation for the prior born child(ren). In
order to determine the adjustment to be applied, use the Indiana Child Support
Guideline Schedules for Weekly Support Payments. The percentage share of the
basic child support obligation attributable to the parent seeking the
adjustment should be considered the legal duty of support for the prior born
child(ren) and the amount placed in Line 1.C., Child Support Obligation
Worksheet.
ii. Income of a Parent Unknown: If actual
income information for a parent of the prior-born child(ren) is unknown, the
court should utilize the known income of the parent seeking the adjustment for
the legal duty to support the prior born child(ren) and attribute zero ($0.00)
income to the other parent. In order to determine the adjustment to be applied,
use the Indiana Child Support Guideline Schedules for Weekly Support Payments
as the amount placed in Line 1.C., Child Support Obligation Worksheet.
If the parent seeking the adjustment has
prior born children with different non-custodial parents whose incomes are
unknown, the basic child support obligation shall be calculated as if the prior
born children have the same noncustodial parent and the adjustment for those
prior born children shall be attributed as a single legal duty, rather than the
total of two or more separate and distinct legal duties.
a. For example, the gross weekly income of
the parent seeking the adjustment is $400.00 and there is one prior born child
in the home. The gross weekly income for the other parent of the prior born
child is unknown. The other parent's gross weekly income would be set at $0.00
to determine the legal duty to support that prior born child. The legal duty to
support that prior born child for the parent seeking the adjustment would be
$79.00 from the Guideline Schedules for Weekly Support Payments.
b. For example, the gross weekly income of
the parent seeking the adjustment is $400.00 and there are two prior born
children in the home with different parents. The gross weekly incomes for those
other parents of the prior born children are unknown. Those other parents'
gross weekly incomes would be set at $0.00 to determine the legal duty to
support those prior born children. The legal duty to support those two prior
born children for the parent seeking the adjustment would be $119.00 from the
Guideline Schedules for Weekly Support Payments.
4. Alimony
or Maintenance. The final allowable deduction from Weekly Gross
Income in arriving at weekly adjusted income is for alimony ordered in decrees
from foreign jurisdictions or spousal maintenance. These amounts are allowable
only if they arise as the result of a court order. This deduction is intended
only for spousal maintenance, not for periodic payments from a property
settlement although the court may consider periodic payments when determining
whether or not to deviate from the guideline amount when ordering support. Refer
to the discussion of temporary maintenance earlier in this commentary. (Line 1D
of Worksheet).
D. Basic Child Support Obligation (Worksheet Line 4).
The Basic Child Support Obligation should be determined using
the attached Guideline Schedules for Weekly Support Payments. For combined
weekly adjusted income amounts falling between amounts shown in the schedule,
basic child support amounts should be rounded to the nearest amount. The number
of children refers to children for whom the parents share joint legal
responsibility and for whom support is being sought, excluding children for
whom Section Two of the Post‑Secondary Education Worksheet is used to
determine support.
Use
of Guideline Schedules.
Combined Weekly Adjusted Income. After reducing Weekly Gross
Income by the deductions allowed above, weekly adjusted income is computed. The
next step is to add the weekly adjusted income of both parties and take the
combined weekly adjusted income to the Guideline schedules for weekly support
payments. In selecting the appropriate column for the determination of the
basic child support obligation, it should be remembered that the number of
children refers only to the number of children of this marriage for whom
support is being computed, excluding children for whom a Post‑Secondary
Education Worksheet is used to determine support.
E. Additions to the Basic Child Support Obligation.
1. Work‑Related
Child Care Expense (Worksheet Line 4A).
Child care costs incurred due
to employment or job search of both parent(s) should be added to the basic
obligation. It includes the separate cost of a sitter, day care, or like care
of a child or children while the parent works or actively seeks employment. Such
child care costs must be reasonable and should not exceed the level required to
provide quality care for the children. Continuity of child care should be
considered. Child care costs required for active job searches are allowable on
the same basis as costs required in connection with employment.
The
parent who contracts for the child care shall be responsible for the payment to
the provider of the child care. For the purpose of designating this expense on
the Child Support Obligation Worksheet (Line 4A), each parent's expense shall
be calculated on an annual basis divided by 52 weeks. The combined amount shall
be added to the Basic Child Support Obligation and each parent shall receive a
credit equal to the expense incurred by that parent as an Adjustment (Line 7 of
the Worksheet).
When potential
income is attributed to a party, the court should not also attribute
work-related child care expense which is not actually incurred.
2. Cost of Health
Insurance for Child(ren) (Worksheet Line 4B). The weekly cost of health insurance
premiums for the child(ren) should be added to the basic obligation whenever
either parent actually incurs the premium expense or a portion of such expense.
(Please refer to Guideline 7 for additional information regarding the treatment
of Health Care Expenses)
3. Extraordinary
Health Care Expense. Please refer to Support Guideline 7 for
treatment of this issue.
4. Extraordinary
Educational Expense. Please refer to Support Guideline 8 for
treatment of this issue.
Additions to the Basic Child Support
Obligation.
1. Work‑Related Child Care Expense (Worksheet Line 4A).
One of the additions to the basic child support obligation is a reasonable
child care expense incurred due to employment, or an attempt to find
employment. This amount is added to the basic child support obligation in
arriving at the total child support obligation.
Work‑related child care expense is an
income‑producing expense of the parent. Presumably, if the family
remained intact, the parents would treat child care as a necessary cost of the
family attributable to the children when both parents work. Therefore, the
expense is one that is incurred for the benefit of the child(ren) which the
parents should share.
In circumstances where a parent claims the
work‑related child care credit for tax purposes, it would be appropriate
to reduce the amount claimed as work‑related child care expense by the
amount of tax saving to the parent. The exact amount of the credit may not be
known at the time support is set, but counsel should be able to make a rough
calculation as to its effect.
When potential income is attributed to a
party, the court should not also attribute a work-related child care expense
which is not actually incurred because this expense is highly speculative and
difficult to adequately verify.
2.
Cost of Health Insurance for Child(ren) (Worksheet Line 4B). The
weekly out of pocket costs of health insurance premiums only for the child(ren)
should be added to the basic obligation so as to apportion that cost between
the parents. The parent who actually pays that cost then receives a credit
towards his or her child support obligation on Line 7 of the Worksheet. (See
Support Guideline 3G. Adjustments to Parent's Child Support Obligation). Only
that portion of the cost actually paid by a parent is added to the basic
obligation. If coverage is provided without cost to the parent(s), then zero
should be entered as the amount. If health insurance coverage is provided
through an employer or purchased through the private market, only the
child(ren)'s portion should be added. If the insurance is eligible for a
federal tax credit, the amount of the credit should be subtracted from the
premiums paid by the parent. In determining the amount to be added, only the
amount of the insurance cost attributable to the child(ren) subject of the
child support order shall be included, such as the difference between the cost
of insuring a single party versus the cost of family coverage. In circumstances
where coverage is applicable to persons other than the child(ren) subject of
the child support order, such as other child(ren) and/or a subsequent spouse,
the total cost of the insurance premium shall be prorated by the number of
persons covered to determine a per person cost.
3.
Total Child Support Obligation
(Worksheet Line 5). Adding work‑related child care
costs, and the weekly cost of health insurance premiums for the child(ren) to
the basic child support obligation results in a figure called Total Child
Support Obligation. This is the basic obligation of both parents for the
support of the child(ren) of the marriage, or approximately what it would cost
to support the child(ren) in an intact household, excluding extraordinary
health care and/or extraordinary education expenses.
F. Computation of Parent's Child Support Obligation (Worksheet Line 6).
Each parent's
child support obligation is determined by multiplying his or her percentage
share of total weekly adjusted income (Worksheet Line 2) times the Total Child
Support Obligation (Worksheet Line 5).
1. Division of
Obligation Between Parents (Worksheet Line 6). The total child support obligation is
divided between the parents in proportion to their weekly adjusted income. A
monetary obligation is computed for each parent. The custodial parent's share
is presumed to be spent directly on the child. When there is near equal
parenting time, and the custodial parent has significantly higher income than
the noncustodial parent, application of the parenting time credit should result
in an order for the child support to be paid from a custodial parent to a
noncustodial parent, absent grounds for a deviation.
2. Deviation from
Guideline Amount. If, after consideration of the factors
contained in IC 31‑16‑6‑1 and IC 31‑16‑6‑2,
the court finds that the Guideline amount is unjust or inappropriate in a
particular case, the court shall state a factual basis for the deviation and
proceed to enter a support amount that is deemed appropriate.
Computation of Child Support.
1. Apportionment of Support Between Parents.
After the total child support obligation is determined, it is necessary to
apportion that obligation between the parents based on their respective weekly
adjusted incomes. First, a percentage is formed by dividing the weekly adjusted
income of each parent by the total weekly adjusted income (Line 1E of the
Worksheet). The percentages are entered on Line 2 of the Worksheet. The total
child support obligation is then multiplied by the percentages on Line 2 (the
percentage of total weekly adjusted income that the weekly adjusted income of
each parent represents) and the resulting figure is the child support
obligation of each parent. The noncustodial parent is ordered to pay his or her
proportionate share of support as calculated on Line 6 of the Worksheet. Custodial
parents are presumed to be meeting their obligations by direct expenditures on
behalf of the child, so a support order is not entered against the custodial
parent.
2.
Apportionment of Support When
Incapacitated Adult Child has Earned Income.
Under certain circumstances the earned income of a child may be considered in
apportioning support. In calculating a support obligation with respect to an
incapacitated adult child with earned income, the support obligation may be
determined by apportioning the support based upon the relative amount earned by
the parents and the child.
3. Deviation from Guideline Amount. If the
court determines that the Guideline amount is unjust, inappropriate, or denies
the obligor a means of self-support at a subsistence level, a written finding
shall be made setting forth the factual basis for deviation from the Guideline
amount. A simple finding such as the following is sufficient: "The court
finds that the presumptive amount of support calculated under the Guidelines
has been rebutted for the following reasons." A pro forma finding that the
Guidelines are not appropriate does not satisfy the requirement for a specific
finding of inappropriateness in a particular case, which is required in an
order to deviate from the Guideline amount. For further discussion of deviation
from the Guideline amount, see also the Commentary to Support Guideline 1.
G. Adjustments to Parent's Child Support Obligation (Worksheet Line 7).
The parent's
child support obligation (Worksheet Line 7) may be subject to four (4)
adjustments.
1. Obligation from
Post‑Secondary Education Worksheet. If the
parents have a child who is living away from home while attending school, his
or her child support obligation will reflect the adjustment found on Line J of
the Post‑Secondary Education Worksheet (See Support Guideline 8).
2. Weekly Cost of Work-related Child Care
Expenses. A parent who pays a weekly child care
expense should receive a credit towards his or her child support obligation. This
credit is entered on the space provided on the Worksheet Line 7. The total
credits claimed by the parents must equal the total amount on Line 4A. (See
Support Guideline 3E Commentary).
3. Weekly Cost of Health Insurance Premiums for Child(ren). The parent
who pays the weekly premium cost for the child(ren)'s health insurance should
receive a credit towards his or her child support obligation in most
circumstances. This credit is entered on the space provided on the Worksheet
Line 7 and will be in an amount equal to that entered on the Worksheet Line 4B
(See Support Guideline 3E Commentary).
4. Parenting Time
Credit. The court should grant a credit toward the total amount of
calculated child support for either "duplicated" or "transferred" expenses
incurred by the noncustodial parent. The proper allocation of these expenses between
the parents shall be based on the calculation from a Parenting Time Credit
Worksheet. (See Support Guideline 6 Commentary).
5. Effect of Social Security Benefits.
a. Current
Support Obligation
1. Custodial
parent: Social Security benefits received for a child based upon the
disability of the custodial parent are not a credit toward the child support
obligation of the noncustodial parent. The amount of the benefit is included in
the custodial parent's income for the purpose of calculating the child support
obligation, and the benefit is also a credit toward the custodial parent's
child support obligation.
2. Noncustodial
parent: Social Security benefits received by a custodial parent, as
representative payee of the child, based upon the earnings or disability of the
noncustodial parent shall be considered as a credit to satisfy the noncustodial
parent's child support obligation as follows:
i. Social Security
Retirement benefits may, at the court's discretion, be credited to the
noncustodial parent's current child support obligation. The credit is not
automatic. The presence of Social Security Retirement benefits is merely one
factor for the court to consider in determining the child support obligation or
modification of the obligation. Stultz v. Stultz, 659 N.E.2d 125 (Ind.
1995).
ii. Social Security
Disability benefits shall be included in the Weekly Gross Income of the
noncustodial parent and applied as a credit to the noncustodial parent's
current child support obligation. The credit is automatic.
iii. Any portion of
the benefit that exceeds the child support obligation shall be considered a
gratuity for the benefit of the child(ren), unless there is an arrearage.
3. The filing of a petition to modify on
grounds a Social Security Disability determination has been requested will not
relieve the parent's obligation to pay the current support order while the
disability application is pending. Filing of the petition to modify support may
entitle the noncustodial parent to a retroactive reduction in support to the
date of filing of the petition for modification and not the date of filing for
the benefits. If the modification of support is granted, any lump sum payment
of retroactive Social Security Disability benefits paid shall be credited
toward the modified support obligation.
b. Arrearages
1. Credit for
retroactive lump sum payment. A lump sum payment of retroactive Social Security
Disability benefits shall be applied as a credit against an existing child
support arrearage if the custodial parent, as representative payee, received a
lump sum retroactive payment, without the requirement of a filing of a Petition
to Modify Child Support. However, no credit should be allowed under the
following circumstances:
i. A custodial
parent should never be required to pay restitution to a disabled noncustodial
parent for lump sum retroactive Social Security Disability benefits which
exceed the amount of "court-ordered" child support. Any portion of lump sum
payments of retroactive Social Security Disability benefits paid to children
not credited against the existing child support arrearage is properly treated
as a gratuity to the children. No credit toward future support should be
granted.
ii. No credit shall be given for a lump sum
disability payment paid directly to a child who is over the age of eighteen
(18). The dependency benefits paid directly to a child who has reached the age
of majority under the Social Security law, rather than to the custodial parent,
as representative payee, do not fulfill the obligations of court-ordered child
support.
2. Application of
current Social Security Disability benefits. The amount of the benefit which
exceeds the child support order may be treated as an ongoing credit toward an
existing arrearage.
3. In Title IV-D
cases there is no credit toward the monies owed to the State of Indiana unless
the retroactive benefit is actually paid to the State of Indiana. The child's
Social Security benefits received and used by the custodial parent will not
reduce or be credited against the noncustodial parent's obligation to reimburse
the State of Indiana for Title IV-A or Title IV-E benefits previously paid on
behalf of the children.
4. Modification. The
award of Social Security Disability benefits retroactive to a specific date
does not modify a noncustodial parent's child support obligation to the same
date. The noncustodial parent's duty to pay support cannot be retroactively
modified earlier than the filing date of a petition to modify child support. IC
31-16-16-6.
It is important
to remember the amount of the child's Social Security benefits that exceed the current child support
order will not be reflected in ISETS as
a credit toward an existing arrearage unless specified in the court order. Unless the credit is recognized in ISETS, there is a chance that an arrearage notice
may be issued administratively and sanctions could be entered on that
arrearage.
Social Security benefits paid to a parent for the benefit of a minor
child are included in the disabled parent's Gross Weekly Income for purposes of
determining child support regardless of which parent actually receives the
payment. (See Guideline 3A). This section, 3G and its commentary, address
adjustments to the recommended child support obligation. Although Social
Security benefits are not reflected on Line 7 of the child support Worksheet,
the benefit should be considered, and its effect and application shall be
included in the written order for support of that child.
The
Guidelines make no change in the law regarding an adjustment for Social
Security Retirement benefits or Supplemental Security Income (SSI). The court
has discretion to allow an adjustment to a parent's child support obligation
based on the amount of Social Security Retirement benefits paid for the benefit
of the child due to that parent's retirement. The retirement benefit is merely
one of the factors that the court should consider when making an adjustment to
the child support obligation. SSI is a means-tested program and the benefit is
not included in either parent's gross income. It therefore should not be
considered an adjustment to either parent's child support obligation.
In
Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), Social Security Disability
(SSD)benefits paid to a child were clearly recognized as earnings of the
disabled parent. Id. at 614. Social Security Disability benefits paid for a
child are recognized as income of the disabled parent who earned the benefits
and those benefits are included in the Weekly Gross Income of that parent. See
Guideline 3A. It follows then that the payment received for the benefit of the
child should be applied to
satisfy the disabled parent's support obligation. The child support order
should state that the SSD benefit received for the child is credited as payment
toward the support obligation. Any portion of the SSD benefit in excess of the current support obligation is a gratuity, unless there is an
arrearage.
The language in Guideline 3.G.5.b.2. directs
that the excess SSD benefit may be applied as payment toward an existing
arrearage. Once the arrearage is satisfied, any portion of the SSD benefit that
exceeds the current support obligation is considered a gratuity. The Guidelines
also change the application of a lump sum SSD payment. SSD is, by definition, a
substitution for a person's income lost due to a recognized disability. Further,
under the Social Security Act, that individual may be entitled to a lump sum
benefit retroactive to the date that his or her disability occurred and that
caused the disruption in earnings. This lump sum payment is unique to SSD. The Guidelines
now allow the courts to apply the lump sum SSD benefits toward an existing
child support arrearage if the custodial parent, as representative payee,
receives a lump sum payment. This
credit is appropriate without the requirement of a filing of a Petition to
Modify Child Support.
The Guidelines change the law regarding the application of SSD
benefits. The holding in Hieston v. State, 885 N.E.2d 59 (Ind. Ct. App. 2008) and its progeny has
been superseded by this change. The
rationale is that the lump sum payment is merely a method of payment applied to
a past support obligation not paid. The
distinction is between modification of support which changes the rate of
support, e.g. from $100.00 per week to $50.00 per week, as opposed to credit
for an indirect payment. Modification
of a child support obligation still requires the filing of a petition for
modification as set forth in Guideline 4.
The lump sum payment is a method of payment that may not be specifically authorized by express
court order but which should be recognized as a payment of support. Indiana
case law establishes that credit can be
allowed for payments that do not technically conform to the original
support decree. For example, where the obligated parent makes payments directly
to the custodial parent rather than through the clerk of the court, the Supreme
Court has recognized these payments when there was sufficient proof to convince
a trier of fact that the required payments were actually made. O'Neil v.
O'Neil, 535 N.E.2d 523 (Ind. 1989), Nill v. Martin, 686 N.E.2d 116
(Ind. 1997). Proof of the lump sum SSD benefit payment is not difficult because
the Social Security award certificate is a record easily admitted into evidence
as an exception to the hearsay rule under IRE 803(6) and (8) (reports of a
public agency setting forth its regularly recorded activity) and trial courts
are rarely burdened with an evidentiary dispute about what was paid, when or to
whom, once the Social Security records are shared. By contrast, the informal
arrangement disputes between parties to modify and reduce the actual amount of
weekly support below that ordered in the divorce decree are actual attempts to
retroactively modify the amount of support, which are prohibited. Similar to
the nonconforming payment, the lump sum payment shall be applied as a credit to
an existing child support arrearage.
If there is no child support arrearage, the lump sum
payment is considered gratuity. As long as there is an existing support order,
there should never be an order entered that requires any excess payment of SSD
or the lump sum payment to be paid back to the disabled parent.
The Guidelines exclude from the parent's Weekly
Gross Income any survivor benefits received by or for other children residing
in either parent's home based on the Social Security death benefits of a
deceased parent of a prior-born child. See Commentary to Guideline 3(A).
Commentary
Substantial and Continuing Change of Circumstances. A change in circumstances may include the incarceration of a parent, a
change in the income of the parents, the application of a parenting plan, the
failure to comply with a parenting plan, or a change in the expense of child
rearing specifically considered in the Guidelines.
If the amount of support computed at the
time of modification is significantly higher or significantly lower than that
previously ordered and would require a drastic reduction in a parent's standard
of living, consideration may be given to phasing in the change in support. This
approach would allow the parent affected by the change time to make adjustments
in his or her standard of living. Again, it is not the intent of the Guidelines
to drive the parents into noncompliance by reducing their spendable income
below subsistence level.
Retroactive
Modification. The modification
of a support obligation may only relate back to the date the petition to modify
was filed, and not an earlier date, subject to two exceptions: (1) when the
parties have agreed to and carried out an alternative method of payment which
substantially complies with the spirit of the decree; or (2) the obligated
parent takes the child into the obligated parent's home and assumes custody,
provides necessities, and exercises parental control for a period of time that
a permanent change of custody is exercised.
Emancipation: Support Orders for Two or
More Children. In child support orders issued under these
Guidelines, support amounts for two or more children, are stated as an in gross
or total amount rather than on a per child basis. Absent judicial modification
of the order, the total obligation will not decrease when the oldest child
reaches nineteen (19) years of age, or the child is emancipated after the occurrence
of other events. Parents should seek to modify child support orders when the
legal obligation to pay child support terminates for any child or any child is
emancipated. See Ind. Code § 31-16-6-6.
The concept of a pro rata delineation of
support is generally inconsistent with the economic policy underlying the
Guidelines (See "Economic Data Used in Developing Guidelines" in
"Commentary" to Support Guideline 1). That policy recognizes that the
amount of support required for two children is about 1.5 times that required to
support one child. The multiplication factor decreases as the number of
children increases. If support were reduced by one half when the first of two
children was emancipated, the remaining amount of support would be significantly
below the Guideline amount for one child at the same parental income levels.
Parents should seek to modify or terminate
a support order when a child(ren) becomes emancipated under Indiana law.
These Guidelines
have been drafted in an attempt to comply with, and should be construed to
conform with applicable federal statutes.
Every attempt was made to draft Guidelines
for the State of Indiana that would comply with applicable federal statutes and
regulations. Likewise, careful attention was paid to state law.
GUIDELINE 6. PARENTING TIME CREDIT
A credit should
be awarded for the number of overnights each year that the child(ren) spend
with the noncustodial parent.
Analysis of Support Guidelines. The Indiana Child Support Guidelines are based on
the assumption the child(ren) live in one household with primary physical
custody in one parent who undertakes all of the spending on behalf of the
child(ren). There is a rebuttable presumption the support calculated from the
Guideline support schedule is the correct amount of weekly child support to be
awarded. The total amount of the anticipated average weekly spending is the
Basic Child Support Obligation (Line 4 of the Worksheet).
The Guideline support schedules do
not reflect the fact, however, when both parents exercise parenting time,
out-of-pocket expenses will be incurred for the child(ren)'s care. These
expenses were recognized previously by the application of a 10% visitation
credit and a 50% abatement of child support during periods of extended
visitation. The visitation credit was based on the regular exercise of
alternate weekend visitation which is equivalent to approximately 14% of the
annual overnights. With the adoption of the Indiana Parenting Time Guidelines,
the noncustodial parent's share of parenting time, if exercised, is equivalent
to approximately 27% of the annual overnights. As a result, these revisions
provide a parenting credit based upon the number of overnights with the
noncustodial parent ranging from 52 overnights annually to equal parenting
time. As parenting time increases, a
proportionally larger increase in the credit will occur.
Analysis of Parenting Time Costs. An examination of the costs associated with the
sharing of parenting time reveals two types of expenses are incurred by both
parents, transferred and duplicated expenses. A third category of expenses is
controlled expenses, such as the 6% uninsured health care expense that remains
the sole obligation of the parent for whom the parenting time credit is not
calculated. This latter category is assumed to be equal to 15% of the Basic
Child Support Obligation.
Transferred Expenses. This type of expense is incurred only when the
child(ren) reside(s) with a parent and these expenses are "transferred" with
the child(ren) as they move from one parent's residence to the other. Examples
of this type of expense are food and the major portion of spending for transportation.
When spending is transferred from one parent to the other parent, the other
parent should be given a credit against that parent's child support obligation
since this type of expense is included in the support calculation schedules. When
parents equally share in the parenting, an assumption is made that 35% of the
Basic Child Support Obligation reflects "transferred" expenses. The amount of expenses transferred from one parent to
the other will depend upon the number of overnights the child(ren) spend(s)
with each parent.
Duplicated Fixed Expenses. This type of expense is incurred when two
households are maintained for the child(ren). An example of this type of
expense is shelter costs which are not transferred when the child(ren) move(s)
from one parent's residence to the other but remain fixed in each parent's
household and represent duplicated expenditures. The fixed expense of the
parent who has primary physical custody is included in the Guideline support
schedules. However, the fixed expense of the other parent is not included in
the support schedules but represents an increase in the total cost of raising
the child(ren) attributed to the parenting time plan. Both parents should share
in these additional costs.
When parents equally share in the
parenting, an assumption is made that 50% of the Basic Child Support Obligation
will be "duplicated." When the child(ren) spend(s) less time with one parent,
the percentage of duplicated expenses will decline.
Controlled Expenses. This type of expense for the child(ren) is
typically paid by the custodial parent and is not transferred or duplicated. Controlled
expenses are items like clothing, education, school books and supplies,
ordinary uninsured health care and personal care. For example, the custodial
parent buys a winter coat for the child. The noncustodial parent will not buy
another one. The custodial parent controls this type of expense. "Education"
expenses include ordinary costs assessed to all students, such as textbook
rental, laboratory fees, and lunches, which should be paid by the custodial
parent. The cost of participating in elective school activities such as sports,
performing arts and clubs, as well as related extracurricular activities are
"optional" activities covered by the paragraph on "Other Extraordinary
Expenses" in Guideline 8.
The controlled expenses account for
15% of the cost of raising the child. The parenting time credit is based on the
more time the parents share, the more expenses are duplicated and transferred. The
controlled expenses are not shared and remain with the parent that does not get
the parenting time credit. Controlled expenses are generally not a
consideration unless there is equal parenting time. These categories of
expenses are not pertinent for litigation. They are presented only to explain
the factors used in developing the parenting time credit formula. The
percentages were assigned to these categories after considering the treatment
of joint custody by other states and examining published data from the Bureau
of Labor Statistics' Consumer Expenditure Survey.
Computation of Parenting Time Credit. The computation of the parenting time credit will
require a determination of the annual number of overnights of parenting time
exercised by the parent who is to pay child support, the use of the standard
Child Support Obligation Worksheet, a Parenting Time Table, and a Parenting
Time Credit Worksheet.
An overnight will not always translate into a twenty-four hour
block of time with all of the attendant costs and responsibilities. It should
include, however, the costs of feeding and transporting the child, attending to
school work and the like. Merely providing a child with a place to sleep in
order to obtain a credit is prohibited.
The Parenting Time Table (Table PT)
begins at 52 overnights annually or the equivalent of alternate weekends of
parenting time only. If the parenting plan is for fewer overnights because the
child is an infant or toddler (Section II A of the Parenting Time Guidelines),
the court may consider granting the noncustodial parent an appropriate credit
for the expenses incurred when caring for the child. If the parenting plan is
for fewer overnights due to a significant geographical distance between the
parties, the court may consider granting an appropriate credit. The actual cost
of transportation should be treated as a separate issue.
If the parents are using the Parenting Time Guidelines without extending
the weeknight period into an overnight, the noncustodial parent will be
exercising approximately 96-100 overnights. The actual number of overnights may
vary based on differing school calendars.
Parenting Time Table. The TOTAL column represents the anticipated total
out-of-pocket expenses expressed as a percentage of the Basic Child Support
Obligation that will be incurred by the parent who will pay child support. The
total expenses are the sum of transferred and duplicated expenses. The
DUPLICATED column represents the duplicated expenses and reflects the
assumption that when there is an equal sharing of parenting time, 50% of the
Basic Child Support Obligation will be duplicated. The Number of Annual
Overnights column will determine the particular fractions of TOTAL and
DUPLICATED to be used in the Parenting Time Credit Worksheet.
TABLE PT
|
ANNUAL OVERNIGHTS |
|
||
|
FROM |
TO |
TOTAL |
DUPLICATED |
|
1 |
51 |
0.000 |
0.000 |
|
52 |
55 |
0.062 |
0.011 |
|
56 |
60 |
0.070 |
0.014 |
|
61 |
65 |
0.080 |
0.020 |
|
66 |
70 |
0.093 |
0.028 |
|
71 |
75 |
0.108 |
0.038 |
|
76 |
80 |
0.127 |
0.052 |
|
81 |
85 |
0.150 |
0.070 |
|
86 |
90 |
0.178 |
0.093 |
|
91 |
95 |
0.211 |
0.122 |
|
96 |
100 |
0.250 |
0.156 |
|
101 |
105 |
0.294 |
0.195 |
|
106 |
110 |
0.341 |
0.237 |
|
111 |
115 |
0.388 |
0.280 |
|
116 |
120 |
0.434 |
0.321 |
|
121 |
125 |
0.476 |
0.358 |
|
126 |
130 |
0.513 |
0.390 |
|
131 |
135 |
0.544 |
0.417 |
|
136 |
140 |
0.570 |
0.438 |
|
141 |
145 |
0.591 |
0.454 |
|
146 |
150 |
0.609 |
0.467 |
|
151 |
155 |
0.623 |
0.476 |
|
156 |
160 |
0.634 |
0.483 |
|
161 |
165 |
0.644 |
0.488 |
|
166 |
170 |
0.652 |
0.491 |
|
171 |
175 |
0.660 |
0.494 |
|
176 |
180 |
0.666 |
0.495 |
|
181 |
183 |
0.675 |
0.500 |
Parenting
Time Credit Worksheet (Credit Worksheet). In
determining the credit, take the following steps:
1. Complete the Child Support Obligation Worksheet through Line 6.
2. Enter on Line
1PT of the Credit Worksheet the annual number of overnights exercised by the
parent who will pay child support.
3. Enter on Line
2PT of the Credit Worksheet the Basic Child Support Obligation (Line 4 from the
Child Support Obligation Worksheet).
4. Enter on Line
3PT of the Credit Worksheet the figure from the TOTAL column that corresponds
to the annual overnights exercised by the parent who will pay child support.
5. Enter on Line
4PT of the Credit Worksheet the figure from the DUPLICATED column that
corresponds to the annual number of overnights exercised by the parent who will
pay child support.
6. Enter on Line
5PT of the Credit Worksheet the percentage share of the Combined Weekly Income
of the parent who will pay child support (Line 2 of the Child Support
Obligation Worksheet).
7. Complete Lines
6PT through 9PT to determine the allowable credit.
8. Enter the result from Line 9PT on
Line 7 of the Child Support Obligation Worksheet as the Parenting Time Credit.
9. Apply the Line 7 Adjustments to
determine the recommended Child Support Obligation (Line 8 of the Child Support
Obligation Worksheet).
PARENTING TIME CREDIT WORKSHEET
|
Line: |
|
|
|
1PT |
Enter Annual
Number of Overnights |
|
|
2PT |
Enter Weekly
Basic Child Support Obligation - BCSO (Enter Line
4 from Child Support Worksheet) |
______.__ |
|
3PT |
Enter Total Parenting
Time Expenses as a Percentage of the BCSO (Enter Appropriate TOTAL Entry from
Table PT) |
.________ |
|
4PT |
Enter
Duplicated Expenses as a Percentage of the BCSO (Enter
Appropriate DUPLICATED Entry from Table PT) |
.________ |
|
5PT |
Parent's
Share of Combined Weekly Income (Enter Line
2 from Child Support Worksheet) |
.________ |
|
|
|
|
|
6PT |
Average
Weekly Total Expenses during Parenting Time (Multiply Line 2PT times Line
3PT) |
______.__ |
|
7PT |
Average
Weekly Duplicated Expenses (Multiply
Line 2PT times Line 4PT) |
______.__ |
|
8PT |
Parent's
Share of Duplicated Expenses (Multiply
Line 5PT times Line 7PT) |
______.__ |
|
9PT |
Allowable
Expenses during Parenting Time (Line 6PT -
Line 8PT) |
______.__ |
|
|
Enter Line
9PT on Line 7 of the Child Support Worksheet as the Parenting Time Credit |
|
Application of Parenting Time
Credit. Parenting
Time Credit is not automatic. The court should determine if application of the
credit will jeopardize a parent's ability to support the child(ren). If such is
the case, the court should consider a deviation from the credit.
The Parenting Time Credit is earned
by performing parental obligations as scheduled and is an advancement of weekly
credit. The granting of the credit is based on the expectation the parties will
comply with a parenting time order.
A parent who does not carry out the parenting time obligation may be
subject to a reduction or loss of the credit, financial restitution, or any
other appropriate remedy. However, missed parenting time because of occasional
illness, transportation problems or other unforeseen events should not constitute
grounds for a reduction or loss of the credit, or financial restitution.
Consistent with Parenting Time
Guidelines, if court action is initiated to reduce the parenting time credit
because of a failure to exercise scheduled parenting time, the parents shall
enter mediation unless otherwise ordered by the court.
Contents of Agreements/Decrees. Orders establishing custody and child support
shall set forth the specifics of the parties' parenting time plan in all cases.
A reference to the Indiana Parenting Time Guidelines will suffice if the
parties intend to follow the Guidelines. All such entries shall be accompanied
by a copy of the Child Support Obligation Worksheet and the Parenting Time
Credit Worksheet.
In every instance the court shall designate
one parent who is receiving support and shall be responsible for payment of the
uninsured health care expenses up to 6% of the Basic Child Support Obligation.
If the court
determines it is necessary to deviate from the parenting time credit, it shall
state its reasons in the order.
Split Custody and Child Support. In
those situations where each parent has physical custody of one or more children
(split custody), it is suggested that support be computed by completing the
Child Support Obligation Worksheets in the following manner:
1. Compute the support a father would pay
to a mother for the children in her custody as if they were the only children
of the marriage.
2. Compute the support a mother would pay
to a father for the children in his custody as if they were the only children
of the marriage.
3. Subtract the lesser from the greater
support amount. The parent who owes the remaining amount pays the difference to
the other parent on a weekly basis.
This method of computation takes into
account the fact that the first child in each home is the most expensive to
support, as discussed in the Commentary to Guideline 1.
Child Support When Parenting
Time is Equally Shared. A frequent source of confusion in
determining child support arises in cases where parents equally share the
parenting time with the children. Parenting
time is considered equally shared when it is 181 to 183 overnights per year. To
determine child support in these cases, either the mother or father must be
designated as the parent who will pay the controlled expenses. Then, the other
parent is given the parenting time credit. The controlled expenses
remain the sole obligation of the parent for whom the parenting time credit is
not calculated.
When both parents equally share
parenting time, the court must determine which parent will pay the controlled
expenses. If, for example, father is the parent paying controlled expenses, the
parenting time credit will be awarded to the mother.
Factors courts should use in assigning the controlled expenses
to a particular parent include the following areas of inquiry:
•
Which parent has traditionally paid these
expenses.
•
Which parent is more likely to be able to
readily pay the controlled expenses.
•
Which parent more frequently takes the
child to the health care provider.
•
Which parent has traditionally been more
involved in the child's school activities (since much of the controlled
expenses concern school costs, such as clothes, fees, supplies, and books).
This determination requires a balancing of these and other
factors. Once the court assigns responsibility for these controlled expenses,
the court should award the other parent the parenting
time credit. When the assignment of the controlled expenses occurs,
calculation of the child support in shared custody situations is fairly basic,
and is completed by application of the remainder of these Guidelines.
Cost
of Transportation for Parenting Time. The Parenting Time
Guidelines require the noncustodial parent to provide transportation for the
child(ren) at the start of the scheduled parenting time, and the custodial
parent to provide transportation for the child(ren) at the end of the scheduled
parenting time. There is no specific provision in the Child Support Guidelines for
an assignment of costs or a credit for transportation on the child support
worksheet. Transportation costs are part of the transferred expenses. When
transportation costs are significant, the court may address transportation
costs as a deviation from the child support calculated by the Worksheet, or may
address transportation as a separate issue from child support. Consideration
should be given to the reason for the geographic distance between the parties
and the financial resources of each party. The relocation statute provides that
one factor in modifying child support in conjunction with parent relocation is
the hardship and expense involved for the nonrelocating individual to exercise
parenting time.
GUIDELINE 7. HEALTH CARE /
MEDICAL SUPPORT
The
court shall order one or both parents to provide health insurance when
accessible to the child at a reasonable cost. Health insurance may be public, for example, Medicaid, or
Children's Health Insurance Program (CHIP), Hoosier Healthwise, or private, for
example, Affordable Care Act (ACA) or employer-provided
Accessibility. Health insurance is accessible if it covers
the geographic area in which the child lives. The court may consider other
relevant factors such as provider network, comprehensiveness of covered
services and likely continuation of coverage.
Reasonable
cost. There
is a rebuttable presumption that parents have health insurance available at a
reasonable cost. The presumption may be rebutted by demonstrating that the
lowest out of pocket cost of insuring the child(ren) is more than 5% of the
parents' combined gross incomes. The lowest out of pocket cost health insurance
available may be public insurance.
Cash medical support. When
health insurance is not accessible to the child(ren) at a reasonable cost,
federal law requires the court to order the parties to pay cash medical
support. Cash medical support is an amount ordered for medical costs not
covered by insurance. The uninsured medical expense apportionment calculation
on the Child Support Obligation Worksheet, "the 6% rule," satisfies this
federal requirement for a cash medical support order, when incorporated into
the court order.
Explanation of 6%
rule/uninsured health care expenses. The data upon which the Guideline
schedules are based include a component for ordinary health care expenses. Ordinary
uninsured health care expenses are paid by the parent who is assigned to pay
the controlled expenses (the parent for whom the parenting time credit is not
calculated) up to six percent (6%) of the basic child support obligation (Line
4 of the Child Support Obligation Worksheet). Extraordinary health care
expenses are those uninsured expenses which are in excess of six percent (6%)
of the basic obligation, and would include uninsured expenses for chronic or
long term conditions of a child. Calculation of the apportionment of the health
care expense obligation is a matter separate from the determination of the
weekly child support obligation. These calculations shall be inserted in the
space provided on the Worksheet.
Birth expense. The court may
order the father to pay a percentage of the reasonable and necessary expenses
of the mother's pregnancy and childbirth, as part of the court's decree in
child support actions. The costs to be included in apportionment are pre-natal
care, delivery, hospitalization, and post-natal care. The paternity statutes
require the father to pay at least fifty percent (50%) of the mother's
pregnancy and childbirth expenses.
Health Insurance Coverage and Costs.
The court is federally mandated to order parents to obtain
health insurance if accessible at a reasonable cost. The rebuttable presumption
that all children have insurance available at a reasonable cost recognizes (1)
both public and private insurance can be used to satisfy the federal mandate to
insure children, (2) the availability of guaranteed acceptance for policies,
and (3) the availability of tax credits for the purpose of obtaining health
insurance.
Health insurance coverage should normally be provided by the
parent who can obtain the most comprehensive coverage at the least out of
pocket cost. The parents bear the burden of demonstrating to the court the out
of pocket cost of health insurance for the child(ren) exceeds 5% of the
parents' combined gross incomes. A parent shall provide the court with proof of
existing public or private health insurance for the child(ren) through an
employer, a retirement plan, Tricare, a Veteran's Health Care Program,
Medicaid, or the Children's Health Insurance Program (CHIP). If the child is
not currently covered, the parent must provide the court with proof of the cost
of health insurance. (Please refer to Guideline 3, E. 2. for additional
information regarding determining the cost of insurance coverage.)
Where one or both parents have a history of changing jobs
and/or health insurance providers both parents may be ordered to carry health
insurance when it becomes available at a reasonable cost to the parents. Where
one parent has a history of maintaining consistent insurance coverage for the
child(ren), there may be no need to order both parents to provide health
insurance for the child(ren).
Parental Self-Monitoring and Compliance.
Parents
should cooperate with one another to ensure the child(ren) remain insured at
all times. The court should order the parent providing health insurance to show
proof of coverage and give notice of any coverage changes, including
termination of coverage, to the other parent. See Indiana Parenting Time
Guidelines I, D. paragraph 5.
Apportionment of Uninsured Health Care
Expenses. Six percent (6%) of the support amount is
for health care. The noncustodial parent is, in effect, prepaying health care
expenses every time a support payment is made. Consequently, the Guidelines
require that custodial parent bear the cost of uninsured health care expenses
up to six percent (6%) of the Basic Child Support Obligation found on Line 4 of
the Child Support Obligation Worksheet and, if applicable, the child support
obligation attributable to a student living away from home (Section Two Line I
of the Post-Secondary Education Worksheet).
That computation is made by multiplying the total of Line 4
and Line I by 52 (weeks) and multiplying the product of that multiplication by
.06 to arrive at the amount the custodial parent must spend on the uninsured
health care costs of the parties' child(ren) in any calendar year before the
noncustodial parent is required to contribute toward payment of those uninsured
costs. For example, if Line 4 is $150.00 per week and Line I is $25.00 per
week, the calculation would be as follows: $150.00 + $25.00 = $175.00 x 52 =
$9,100.00 x .06 = $546.00.
Thus, on an annual basis, the custodial
parent is required to spend $546.00 for health care of the child(ren) before
the noncustodial parent is required to contribute. The custodial parent must
document the $546.00 spent on health care and provide the documentation to the
noncustodial parent.
After the custodial parent's obligation for
ordinary uninsured health care expenses is computed, provision should be made
for the uninsured health care expenses that may exceed that amount. The excess
costs should be apportioned between the parties according to the Percentage
Share of Income computed on Line 2 of the Worksheet. Where imposing such
percentage share of the uninsured costs may work an injustice, the court may
resort to the time‑honored practice of splitting uninsured health care
costs equally, or by using other methods. The court may prorate the custodial parent's
uninsured health care expense contribution when appropriate.
As a practical matter, it may be wise to
spell out with specificity in the order what uninsured expenses are covered and
a schedule for the periodic payment of these expenses. For example, a chronic
long‑term condition might necessitate weekly payments of the uninsured
expense. The order may include any reasonable medical, dental, hospital,
pharmaceutical and psychological expenses deemed necessary for the health care
of the child(ren). If it is intended that such things as aspirin, vitamins and
band‑aids be covered, the order should specifically state that such non‑prescription
health care items are covered.
There are also situations where major
health care costs are incurred for a single event such as orthodontics or major
injuries. For financial reasons, this may require the custodial parent to pay
the provider for the amount not covered by insurance over a number of years. The
6% rule applies to expenses actually paid by the custodial parent each year.
Birth expenses. There
is no statute of limitations barring recovery of birthing expenses, providing
the paternity or child support action is timely filed. The court should be very
careful to be sure the claimed expenses are both reasonable and necessary. Birthing
expenses include both the expenses incurred by the child as well as by the
mother, providing they are directly related to the child's birth. The court
should distinguish between "postpartum expenses" and "postnatal expenses." "Postpartum"
expenses are mother's expenses following the birth of the child. "Postnatal"
expenses of the child are those expenses directly related to the child's birth.
Between the two, only "postnatal" expenses are reimbursable.
GUIDELINE 8. EXTRAORDINARY
EXPENSES
Extraordinary Educational Expenses.
The data upon
which the Guideline schedules are based include a component for ordinary
educational expenses. Any extraordinary educational expenses incurred on behalf
of a child shall be considered apart from the total Basic Child Support
Obligation.
Extraordinary
educational expenses may be for elementary, secondary or post‑secondary
education, and should be limited to reasonable and necessary expenses for
attending private or special schools, institutions of higher learning, and
trade, business or technical schools to meet the particular educational needs
of the child.
Commentary
Parents should
consider whether an educational support order is necessary or appropriate to
address educational needs prior to the child reaching nineteen (19) years of
age.
a. Elementary and Secondary Education. If
the expenses are related to elementary or secondary education, the court may
want to consider whether the expense is the result of a personal preference of
one parent or whether both parents concur; whether the parties would have
incurred the expense while the family was intact; and whether or not education
of the same or higher quality is available at less cost.
b. Post‑Secondary Education. The authority of the court to award post‑secondary
educational expenses is derived from IC 31‑16‑6‑2. It is
discretionary with the court to award post‑secondary educational expenses
and in what amount. In making such a decision, the court should consider post‑secondary
education to be a group effort, and weigh the ability of each parent to
contribute to payment of the expense, as well as the ability of the student to
pay a portion of the expense.
When
determining whether or not to award post-secondary educational expenses, the
court should consider each parent's income, earning ability, financial assets
and liabilities. If the expected parental contribution is zero under Free
Application for Federal Student Aid (FAFSA), the court should not award
post-secondary educational expenses. If the court determines an award of
post-secondary educational expenses would impose a substantial financial
burden, an award should not be ordered.
If the court
determines that an award of post‑secondary educational expenses is
appropriate, it should apportion the expenses between the parents and the
child, taking into consideration the incomes and overall financial condition of
the parents and the child, education gifts, education trust funds, and any
other education savings program. The court should also take into consideration
scholarships, grants, student loans, summer and school year employment and
other cost‑reducing programs available to the student. These latter
sources of assistance should be credited to the child's share of the
educational expense unless the court determines that it should credit a portion
of any scholarships, grants and loans to either or both parents' share(s) of
the education expense.
Current
provisions of the Internal Revenue Code provide tax credits and preferences
which will subsidize the cost of a child's post‑secondary education. While
tax planning on the part of all parties will be needed to maximize the value of
these subsidies, no one party should disproportionately benefit from the tax
treatment of post‑secondary expenses. Courts may consider who may be
entitled to claim various education tax benefits and tax exemptions for the
minor child(ren) and the total value of the tax subsidies prior to assigning
the financial responsibility of post‑secondary expenses to the parents
and the child.
A determination
of what constitutes educational expenses will be necessary and will generally
include tuition, books, lab fees, course related supplies, and student activity
fees. Room and board may be included when the child does not reside with either
parent.
The
impact of an award of post‑secondary educational expenses is substantial
upon the custodial and non‑custodial parent and a reduction of the Basic
Child Support Obligation attributable to the child under the age of nineteen
years will be required when the child does
not reside with either parent.
The court should
require that a student maintain a certain minimum level of academic performance
to remain eligible for parental assistance and should include such a provision
in its order. The court should also consider requiring the student or the
custodial parent provide the noncustodial parent with a copy of the child's
high school transcript and each semester or trimester post-secondary education
grade report.
The court may
limit consideration of college expenses to the cost of state supported colleges
and universities or otherwise may require that the income level of the family
and the achievement level of the child be sufficient to justify the expense of
private school.
COMMENTARY
Time for Filing
Petition for Post-Secondary Educational Expenses. There is a distinct
difference between an order for child support and an order for post-secondary
educational expenses. An order for educational expenses can continue after an
order for child support has ended. If an order for child support was issued
before July 1, 2012, a petition for educational support can be filed until the
child reaches twenty-one (21) years of age. If an order for child support was
issued or modified after June 30, 2012, a petition for educational support must
be filed before the child reaches nineteen (19) years of age.
c. Use of Post‑Secondary
Education Worksheet.
The Worksheet
makes two calculations. Section One calculates the contribution of each parent
for payment of post‑secondary education expenses based upon his or her percentage
share of the weekly adjusted income from the Child Support Obligation Worksheet
after contribution from the student toward those costs. Notwithstanding this
calculation, the court retains discretion to award and determine the allocation
of these expenses taking into consideration the ability of each parent to meet
these expenses and the child's reasonable ability to contribute to his or her
educational expenses. The method of paying such contribution should be
addressed in the court's order.
In
situations when the student, under age nineteen (19), remains at home with the
custodial parent while attending an institution of higher learning, generally
no reduction to the noncustodial parent's support obligation will occur and
Section Two of the Worksheet need not be completed.
Section Two
determines the amount of each parent's weekly support obligation for the
student who does not live at home year round. The amount attributable to the
student while at home has been annualized to avoid weekly variations in the
order. It further addresses the provisions of IC 31‑16‑6‑2(b)
which require a reduction in the child support obligation when the court orders
the payment of educational expenses which are duplicated or would otherwise be
paid to the custodial parent. In determining the reduction, the student is
treated as emancipated. This treatment recognizes that the diminishing marginal
effect of additional children is due to economies of scale in consumption and
not the age of the children. A second child becomes the "first child"
in terms of consumption and the custodial parent will receive Guideline child
support on that basis.
Section Two
applies when the parties' only child attending school does not reside with the
custodial parent while attending school, as well as when the parties have more
than one child and one resides away from home while attending school and the
other child(ren) remain at home.
Line E of the
Worksheet determines the percentage of the year the student lives at home. Line
F is used to enter the Basic Child Support Obligation, from the Guideline
Schedules for all of the children of the parties including the student who does
not live at home year round. Line G is used to enter the amount of support for
those children who are not living away from home. If the student is the only child,
Line G will be $0.00. The difference between Lines F and G is the total support
obligation attributable to the student. This is entered on Line H. By
multiplying the percentage of the year the student lives at home, times the
support obligation attributable to the student, the Worksheet pro rates to a
weekly basis the total support obligation attributed to the student. This is
computed on Line I and the result is included in the uninsured health care
expense calculation. The parents' pro rata share of this obligation is computed
in Line J. This result is included in section 7 of the Child Support Obligation
Worksheet.
1. The One Child Situation. When
the parties' only child is a student who does not live at home with the
custodial parent while attending school, Section Two establishes the weekly
support obligation for that child on Line I. The regular Child Support
Obligation Worksheet should be completed through Line 5 for that child and the
annualized obligation from Line J of the Post‑secondary Education
Worksheet is entered on Line 7 with an explanation of the deviation in the
order or decree.
2. The More Than One Child Situation.
When the parties have more than one child, Section Two requires the preparation
of a regular Child Support Obligation Worksheet applicable only to the
child(ren) who regularly reside with the custodial parent, and for a
determination of that support obligation. The annualized obligation from Line J
of the Post-Secondary Education Worksheet is then inserted on Line 7 of the
regular support Worksheet as an addition to the Parent's Child Support
Obligation on Line 6. An explanation of the increase in the support obligation
should then appear in the order or decree.
In
both situations the Child Support Obligation Worksheet and the Post‑Secondary
Education Worksheet must be filed with the court. This includes cases in which
agreed orders are submitted.
When
more than one child lives away from home while attending school, Section One of
the Post-Secondary Education Worksheet should be prepared for each child. However,
Section Two should be completed once for all children living away from home
while attending school. The number used to fill in the blank in Line E should
be the average number of weeks these children live at home. For example, if one
child lives at home for ten (10) weeks and another child lives at home for
sixteen (16) weeks, the average number of weeks will be thirteen (13). This
number would then be inserted in the blank on Line E which is then divided by
52 (weeks).
COMMENTARY
With
the modification of the age of emancipation from age twenty-one (21) to age
nineteen (19), Section Two of the Post-Secondary Education Worksheet will only
be applicable in a limited number of cases. However, it remains a valuable tool
to calculate child support for a child under age nineteen (19) who does not
reside with either parent during the school year but returns to the home of the
custodial parent during school breaks and recess. Section Two of the Post-Secondary
Education Worksheet should not be utilized once the child attains age nineteen
(19).
Other
Extraordinary Expenses. The economic
data used in developing the Child Support Guideline Schedules do not include
components related to those expenses of an "optional" nature such as costs
related to summer camp, soccer leagues, scouting and the like. When both
parents agree that the child(ren) may participate in optional activities, the
parents should pay their pro rata share of these expenses from line 2 of the
Child Support Obligation Worksheet. In the absence of an agreement relating to
such expenses, assigning responsibility for the costs should take into account
factors such as each parent's ability to pay, which parent is encouraging the
activity, whether the child(ren) has/have historically participated in the
activity, and the reasons a parent encourages or opposes participation in the
activity. If the parents or the court determine that the child(ren) may
participate in optional activities, the method of sharing the expenses shall be
set forth in the entry.
COMMENTARY
The costs of participating in
elective school activities such as sports, performing arts and clubs, including
the costs of participating in related extracurricular activities, are "Other
Extraordinary Expenses."
GUIDELINE 9. ACCOUNTABILITY,
TAX EXEMPTIONS, ROUNDING SUPPORT AMOUNTS
Accountability of the
Custodial Parent for Support Received. Quite commonly noncustodial parents
request, or even demand, that the custodial parent provide an accounting for
how support money is spent. While recognizing that in some instances an
accounting may be justified, the Committee does not recommend that it be
routinely used in support orders. The Indiana Legislature recognized that an
accounting may sometimes be needed when it enacted IC 31‑16‑9‑6.
At the time of
entering an order for support, or at any time thereafter, the court may make an
order, upon a proper showing of the necessity, requiring the spouse or other
person receiving such support payments to render an accounting to the court of
future expenditures upon such terms and conditions as the court shall decree.
It
is recommended that an accounting be ordered upon a showing of reasonable cause
to believe that child support is not being used for the support of the child. This
provision is prospective in application and discretionary with the court. An
accounting may not be ordered as to support payments previously paid.
A custodial
parent may be able to account for direct costs (clothing, school expenses,
music lessons, etc.) but it should be remembered that it is extremely difficult
to compile indirect costs (a share of housing, transportation, utilities, food,
etc.) with any degree of accuracy. If a court found that a custodial parent was
diverting support for his or her own personal use, the remedy is not clear. Perhaps,
the scrutiny that comes with an accounting would itself resolve the problem.
Tax Exemptions. Development of these Guidelines did not
take into consideration the awarding of the income tax exemption. Instead, it
is required each case be reviewed on an individual basis and that a decision be
made in the context of each case. Judges and practitioners should be aware that
under current law the court cannot award an exemption to a parent, but the
court may order a parent to release or sign over the exemption for one or more
of the children to the other parent pursuant to Internal Revenue Code § 152(e).
To effect this release, the parent releasing the exemption must sign and
deliver to the other parent I.R.S. Form 8332, Release of Claim to Exemption for
Child of Divorced or Separated Parents. The parent claiming the exemption must
then file this form with his or her tax return. The release may be made, pursuant
to the Internal Revenue Code, annually, for a specified number of years or
permanently. Courts shall include in the support order that a parent may only
claim an exemption if the parent has paid at least ninety-five percent (95%) of
their court ordered support for the calendar year in which the exemption is
sought by January 31 of the following year. Shifting the exemption for dependents
does not alter the filing status of either parent.
A court is required to specify in a child
support order which parent may claim the child(ren) as dependents for tax
purposes. In determining when to order a release of exemptions, it is required
that the following factors be considered:
(1) the value of
the exemption at the marginal tax rate of each parent;
(2) the income of
each parent;
(3) the age of
the child(ren) and how long the exemption will be available;
(4) the
percentage of the cost of supporting the child(ren) borne by each parent;
(5) the financial
aid benefit for post-secondary education for the child(ren);
(6) the financial
burden assumed by each parent under the property settlement in the case; and
(7) any other
relevant factors,(including health insurance tax subsidies or tax penalties
under the Affordable Care Act).
COMMENTARY
Under the
Affordable Care Act, premium tax subsidies, dependent tax exemptions, and tax
penalties for failure to provide health insurance are inextricably linked. Problems
can arise when a parent purchases health insurance through the health insurance
marketplace under the Affordable Care Act and needs access to premium tax
subsidies in order to make the insurance affordable. Only the parent who claims
a child as a dependent on a federal tax return is eligible for the subsidies
and liable for the tax penalties.
Rounding child support
amounts. The amount of child support entered as an
order may be expressed as an even amount, by rounding to the nearest dollar. For
example, $50.50 is rounded to $51.00 and $50.49 is rounded to $50.00.