Current through Register Vol. 54, No. 38, September 21, 2024
The trier-of-fact may allocate between the parties the
additional expenses in subdivisions (a)-(e). even when a basic support order is
inappropriate under the facts of the case, the trier-of-fact may allocate
between the parties the additional expenses.
Except for the subdivisions (b)(4) and (e) expenses, the
trier-of-fact shall calculate the parties' proportionate share of the
additional expenses after adjusting the parties' monthly net income by the
spousal support or alimony pendente lite obligation received
or paid, and dividing each party's adjusted monthly net income by the parties'
combined monthly net income. However, the trier-of-fact shall not adjust the
parties' monthly net incomes when apportioning the expenses in child support
only cases.
(a)
Child care
expenses.
(1) The trier-of-fact:
(i) shall allocate reasonable child care
expenses paid by the parties, if necessary to maintain employment or
appropriate education in pursuit of income.
(ii) may allocate reasonable child care
expenses paid by the parties when the trier-of-fact imputes an earning capacity
to a party as provided in Pa.R.C.P. No. 1910.16-2(d)(4)(i)(D).
(2) The trier-of-fact may require
that the obligor's share be added to the basic child support obligation, paid
directly to the service provider, or paid directly to the obligee.
(3) When a party is receiving a child care
subsidy through the Department of Human Services, the expense allocated between
the parties is the amount actually paid by the party receiving the subsidy.
(4) The party seeking allocation
of child care expenses shall provide to the other party the expense's
documentation, such as a receipt or an invoice, promptly after receipt unless
the service provider invoices the parties separately for the party's
proportionate share of the expense.
(5) The trier-of-fact shall have the
discretion to not allocate expenses if documentation is not timely provided to
the other party.
(6) Except as
provided in subdivision (a)(7), the total child care expenses shall be reduced
to reflect the federal child care tax credit available to the eligible party,
regardless of whether the credit is actually claimed by that party, up to the
maximum annual cost allowable under the Internal Revenue Code.
(7) if the eligible party is not qualified to
receive the credit, the federal child care tax credit shall not be used to
reduce the child care expenses subject to allocation between the parties.
Example. Mother has primary custody of the
parties' two children and Father has partial custody. The parties' respective
monthly net incomes are $2,000 and $3,500. At the combined monthly net income
of $5,500 for two children, the basic child support obligation is $1,567. As
Father's income represents 64% of the parties' combined monthly net income,
Father's basic child support obligation is $1,003. Mother incurs monthly child
care expenses of $400, and Father incurs $100 per month. The total child care
expenses, $500, will be apportioned between the parties, with Father paying
64%, or $320. As Father is paying $100 for the children's child care during in
his partial custody, he would pay the remaining $220 to Mother for a total
child support obligation of $1,223 ($1,003 + $220).
(b)
Health Insurance
Premium.
(1) The trier-of-fact shall
allocate the health insurance premium paid by the parties, including the
premium attributable to the party paying the premium, provided that a statutory
duty of support is owed to the party or child covered by the health insurance.
(i) If the party paying the health insurance
premium is the obligor, the obligee's share is deducted from the obligor's
basic support obligation.
(ii) If
the obligee is paying the health insurance premium, the obligor's share is
added to the obligor's basic support obligation.
(iii) a health insurance premium allocated
between the parties shall also include health insurance that is provided and
paid by a third-party resident of a party's household (e.g.,
step-parent) for a child who is the subject of the support order.
(2) The trier-of-fact shall not
allocate an employer-paid premium or a premium paid for a party, person, or
child to whom no statutory duty of support is owed.
(i) If the parties present evidence of the
excluded premium's actual amount-the amount attributed to a party, person, or
child not owed a statutory duty of support-the trier-of-fact shall deduct the
actual amount excluded from the total premium before allocating the health
insurance premium between the parties.
(ii) If the parties do not present evidence
of the excluded premium's actual amount, the trier-of-fact shall calculate the
excluded amount as follows:
(A) determine the
premium's cost per person by dividing the total premium by the number of
persons covered under the policy;
(B) multiply the cost per person by the
number of persons who are not owed a statutory duty of support, or are not
parties to, or the subject of, the support action; and
(C) the resulting amount is excluded from
allocation.
Example 1. If the parties are separated, but
not divorced, and Husband pays $200 monthly for employer-provided health
insurance for himself, Wife, the parties' child, and two additional children
from a previous marriage, the premium attributable to the additional two
children, if not otherwise verifiable or known with reasonable ease and
certainty, is calculated by dividing $200 by five persons and then multiplying
the resulting amount of $40 per person by the two additional children, for a
total of $80 to be excluded from allocation. Deduct this amount from the total
premium to arrive at the premium to be allocated between the parties- $120.
Since Husband is paying the premium, and spouses have a statutory duty to
support one another pursuant to
23 Pa.C.S. §
4321,
Wife's percentage share of the $120 is deducted from Husband's support
obligation. If Wife had been providing the coverage, Husband's percentage share
would be added to his basic support obligation.
Example 2. If the parties are divorced and
Father pays $200 monthly for employer-provided health insurance for himself,
the parties' child, and two additional children from a previous marriage, the
premium attributable to Father and the two additional children will not be
allocated between the parties. Thus, using the same calculations in Example 1,
the premium attributable to Father and the two other children is $150 ($200
premium divided among four covered persons equals $50 per person multiplied by
three) and that amount is deducted from the total premium, leaving $50 ($200 -
$150 = $50) to be allocated between the parties.
Example 3. The parties are divorced, and
Mother is the obligee of a child support order. Father, the obligor, pays $200
monthly for employer-provided health insurance for month for her
employer-provided health insurance that covers only herself. The premium Father
pays to cover the parties' child, $100 ($200 premium divided between two
covered persons, Father and the child), will be allocated between the parties
in proportion to their respective monthly net incomes. The premium that covers
Father will not be allocated because the parties are no longer married, and he
is not owed a duty of support by Mother. The premium Mother pays to provide her
own coverage will not be allocated because the parties are no longer married
and she is not owed a duty of support by Father.
(3) Pursuant to
23 Pa.C.S. §
4326(a), in every support
proceeding, the trier-of-fact shall ascertain a parent's ability to provide
medical support for the parties' child and the support "order shall include a
requirement for medical support to be provided by either or both parents,
provided that such medical support is accessible to the children."
(i) The obligor bears the initial
responsibility of providing the child's health care coverage if it is available
at a reasonable cost.
(A) "Reasonable cost" to
an obligor shall be defined as an amount that does not exceed 5% of the
obligor's monthly net income and, when added to the basic child support
obligation plus additional expenses the obligor is ordered to pay, does not
exceed 50% of the obligor's monthly net income.
(B) If the obligee is providing the coverage,
the "reasonable cost" of the obligor's share shall be defined as an amount that
does not exceed 5% of the obligor's monthly net income and, when added to the
basic child support obligation plus additional expenses the obligor is ordered
to pay, does not exceed 50% of the obligor's monthly net income.
(ii) Unless the child's health
care coverage is provided by the obligee or a third party, the court shall
issue the National Medical Support Notice required by
23 Pa.C.S. §
4326(d.1) to the obligor's employer in
response to notification that the obligor is employed.
(A) The notice shall direct the employer to
enroll the obligor's child who is the subject of the support proceeding if the
coverage is available at a reasonable cost to the obligor.
(B) However, the notice shall direct that
enrollment shall not occur earlier than 25 days from the date of the National
Medical Support Notice to allow the obligor time to object.
(C) Concurrent with the issuance of the
National Medical Support Notice, the court shall provide notice to the obligor
setting forth the process to object to the enrollment based upon unreasonable
cost, mistake of fact, or availability of alternative health care coverage for
the child.
(D) If there is more
than one employer-provided health care coverage option, the obligor shall
select the coverage, subject to the obligee's right to seek a court order
designating a different option.
(iii) Absent the availability of health care
coverage to the obligor for the parties' child at a reasonable cost, the court
shall order the obligee to provide health care coverage for the child if it is
available at a reasonable cost. "Reasonable cost" to the obligee shall be
defined as an amount not to exceed 5% of the obligee's monthly net
income.
(iv) If health care
coverage is not available to the parties at a reasonable cost, the court may
order the the party having primary custody to apply for government-sponsored
coverage, such as the Children's Health Insurance Program ("CHIP"), with any
co-premium or other cost apportioned between the parties in proportion to the
parties' respective monthly net incomes.
(v) Within 30 days after the entry of the
support order, the party ordered to provide health care coverage shall provide
written proof to the other party that medical insurance has been obtained,
including insurance cards and all other materials set forth in the form order
in pa.r.c.p. no. 1910.27(e). There shall be a continuing obligation to provide
the other party and the domestic relations section with proof of any changes in
coverage.
(vi) The trier-of-fact
shall give preference to health care coverage that is readily accessible to the
child, as defined by geographic coverage area, access to local treatment
providers, or other relevant factors.
(4) if the obligor is paying for the health
insurance, the obligee has no income or minimal income , and the obligor will
bear 90% or more of the health insurance premium:
(i) The trier-of-fact may, as fairness
requires, deduct part or all of the premium actually paid by the obligor to
provide coverage for the other party or the child from the obligor's gross
income to determine monthly net income for support purposes.
(ii) If such a deduction is taken from the
obligor's gross income, the premium allocation as set forth in subdivision
(b)(1) shall not be applied.
(c)
Unreimbursed Medical
Expenses. The trier-of-fact shall allocate the obligee's or child's
unreimbursed medical expenses. However, the trier-of-fact shall not allocate
unreimbursed medical expenses incurred by a party who is not owed a statutory
duty of support by the other party. The trier-of-fact may require that the
obligor's expense share be included in the basic support obligation, paid
directly to the health care provider, or paid directly to the obligee.
(1)
Medical Expenses.
(i) For purposes of this subdivision, medical
expenses are annual unreimbursed medical expenses in excess of $250 per
person.
(ii) Medical expenses
include insurance co-payments and deductibles and all expenses incurred for
reasonably necessary medical services and supplies, including but not limited
to surgical, dental and optical services, and orthodontia.
(iii) Medical expenses do not include
cosmetic, chiropractic, psychiatric, psychological, or other services unless
specifically directed in the order of court.
(2) The trier-of-fact may impose an annual
limitation when the burden on the obligor would otherwise be
excessive.
(3) Annual expenses
shall be calculated on a calendar year basis.
(i) In the year in which the initial support
order is entered, or in any period in which support is being paid that is less
than a full year, the $250 threshold shall be pro-rated.
(ii) The party seeking allocation for an
unreimbursed medical expense shall provide to the other party the expense's
documentation, such as a receipt or an invoice, promptly upon receipt, but not
later than March 31st of the year following the calendar year in which the
final bill was received by the party seeking allocation.
(iii) For purposes of subsequent enforcement,
unreimbursed medical bills need not be submitted to the domestic relations
section prior to March 31st.
(iv)
the trier-of-fact shall have the discretion to not allocate an expense if
documentation is not timely provided to the other party.
(4) If the trier-of-fact determines that
out-of-network medical expenses were not obtained due to medical emergency or
other compelling factors, the trier-of-fact may decline to assess the expenses
against the other party.
(d)
Private School Tuition or Summer
Camp. Other Additional Expenses. Expenses outside the scope of typical
child-rearing expenses, such as private school tuition, summer camp fees, and
other additional expenses as set forth in subdivision (d)(2), have not been
factored into the Basic Child Support Schedule.
(1)
Private School Tuition or Summer
Camp. If the trier-of-fact determines that private school or summer
camp is reasonable under the parties' circumstances, the trier-of-fact shall
apportion the expense to the parties.
(2)
Other Additional
Expenses. The trier-of-fact shall apportion an additional expense to
the parties, if the trier-of-fact determines that the expense:
(i) is related to the child's educational,
extracurricular, or developmental activities; and
(ii) is reasonable under the parties'
circumstances.
(3) The
trier-of-fact may require that a party's proportionate share of a subdivision
(d)(1) or (d)(2) expense is:
(i) included in
or excluded from the basic child support obligation;
(ii) paid directly to the service provider;
or
(iii) paid directly to the other
party.
(4)
Documentation.
(i) The party
seeking allocation of an expense shall provide the other party with the
expense's documentation, such as a receipt or an invoice, promptly upon
receipt, but not later than March 31st of the year following the calendar year
in which the party incurred the expense, unless the service provider invoices
the parties separately.
(ii) For
subsequent enforcement purposes, a party does not need to submit the expense's
documentation to the domestic relations section before March 31.
(iii) The trier-of-fact shall have the
discretion to not allocate an expense if documentation is not timely provided
to the other party.
(e)
Mortgage Payment. The
support guidelines assume that the spouse occupying the marital residence will
be solely responsible for the mortgage payment, real estate taxes, and
homeowners' insurance. Similarly, the trier-of-fact shall assume that the party
occupying the marital residence will be paying the items listed unless the
recommendation specifically provides otherwise.
(1) If the obligee is living in the marital
residence and the mortgage payment exceeds 25% of the obligee's monthly net
income (including amounts of spousal support, alimony pendente
lite, and child support), the trier-of-fact may require the obligor to
assume up to 50% of the excess amount in the obligor's support
obligation.
(2) If the obligor is
occupying the marital residence and the mortgage payment exceeds 25% of the
obligor's monthly net income (less any amount of spousal support, alimony
pendente lite, and child support the obligor is paying), the
trier-of-fact may downwardly adjust the obligor's support obligation.
(3) This rule shall not be applicable after a
final resolution of the outstanding economic claims in the parties' divorce
action.
(4) For purposes of this
subdivision, "mortgage" shall include a first mortgage, real estate taxes, and
homeowners' insurance and may include a subsequent mortgage, a home equity ,
and other marital obligations secured by the marital residence.
