Current through Register Vol. 54, No. 38, September 21, 2024
(a) A
petition for modification or termination of an existing support order shall
specifically aver the material and substantial change in circumstances upon
which the petition is based. A new guideline amount resulting from new or
revised support guidelines may constitute a material and substantial change in
circumstances. The existence of additional income, income sources or assets
identified through automated methods or otherwise may also constitute a
material and substantial change in circumstances.
(b) The procedure upon the petition shall be
in accordance with Rule
1910.10 et seq. After a party has
filed a petition for modification of a child support order, the petition may
not be withdrawn unless both parties consent or with leave of court. A petition
for modification of spousal support or alimony pendente lite may be withdrawn
without the consent of the other party or leave of court.
(c) Pursuant to a petition for modification,
the trier-of-fact may modify or terminate the existing support order in any
appropriate manner based on the evidence presented without regard to which
party filed the petition for modification. If the trier-of-fact finds that
there has been a material and substantial change in circumstances, the order
may be increased or decreased based on the parties' respective monthly net
incomes, consistent with the support guidelines, existing law, and Pa.R.C.P.
No. 1910.18(d), and the party's custodial time with the child at the time the
modification petition is heard.
(d)
All charging orders for spousal support and alimony pendente lite shall
terminate upon the death of the payee spouse.
(e) Within six months prior to the date a
child who is the subject of a child support order reaches eighteen (18) years
of age, the domestic relations section shall issue an emancipation inquiry and
notice to the obligee, with a copy to the obligor, seeking the following
information:
(1) confirmation of the child's
date of birth, date of graduation or withdrawal from high school;
(2) whether the child has left the obligee's
household and, if so, the date of departure;
(3) the existence of any agreement between
the parties requiring payments for the benefit of the child after the child has
reached age eighteen (18) or graduated from high school; and
(4) any special needs of the child which may
be a basis for continuing support for that child beyond the child's eighteenth
birthday or graduation from high school, whichever is last to occur.
The notice shall advise the obligee that if the inquiry is
not returned within thirty (30) days of mailing or if there is no agreement or
the child does not have any special needs, the charging order may be modified
or terminated by the court. In order to avoid overpayment, when no other
children are subjects of the child support order and the obligee either does
not return the emancipation inquiry within thirty (30) days of its mailing or
does not assert grounds for continuing support for the child, then the domestic
relations section shall administratively terminate the child support charging
order without further proceedings on the last to occur of the date the last
child reaches age eighteen (18) or graduates from high school. Termination of
the charging order shall not affect any arrears accrued through the date of
termination. The court shall have the authority to enter an order requiring the
obligor to pay on arrears in an amount equal to the amount of the charging
order until all arrears are paid.
If the order applies to another child or children and/or the
obligee asserts that there is an agreement between the parties or that a child
has special needs requiring continued support, then the domestic relations
section may schedule a conference prior to the child's attaining age 18 or
graduating from high school to determine if the charging order should be
modified.
(f) Upon
notice to the obligee, with a copy to the obligor, explaining the basis for the
proposed modification or termination, the court may modify or terminate a
charging order for support and remit any arrears, all without prejudice, when
it appears to the court that:
(1) the order
is no longer able to be enforced under state law; or
(2) the obligor is unable to pay, has no
known income or assets and there is no reasonable prospect that the obligor
will be able to pay in the foreseeable future.
The notice shall advise the obligee to contact the domestic
relations section within 60 days of the date of the mailing of the notice if
the obligee wishes to contest the proposed modification or termination. If the
obligee objects, the domestic relations section shall schedule a conference to
provide the obligee the opportunity to contest the proposed action. If the
obligee does not respond to the notice or object to the proposed action, the
court shall have the authority to modify or terminate the order and remit any
arrears, without prejudice.
(g)
Overpayments.
(1)
Order in Effect. If
there is an overpayment in an amount in excess of two months of the monthly
support obligation and a charging order remains in effect, after notice to the
parties as set forth below, the domestic relations section shall reduce the
charging order by 20% or an amount sufficient to retire the overpayment by the
time the charging order is terminated. The notice shall advise the parties to
contact the domestic relations section within 30 days of the date of the
mailing of the notice if either or both of them wishes to contest the proposed
reduction of the charging order. If either party objects, the domestic
relations section shall schedule a conference to provide the objecting party
the opportunity to contest the proposed action. If neither party responds to
the notice or objects to the proposed action, the domestic relations section
shall have the authority to reduce the charging order.
(2)
Order Terminated. If
there is an overpayment in any amount and there is no charging order in effect,
within one year of the termination of the charging order, the former obligor
may file a petition with the domestic relations section seeking recovery of the
overpayment. A copy shall be served upon the former obligee as original
process. The domestic relations section shall schedule a conference on the
petition, which shall be conducted consistent with the rules governing support
actions. The domestic relations section shall have the authority to enter an
order against the former obligee for the amount of the overpayment in a monthly
amount to be determined by the trier of fact after consideration of the former
obligee's ability to pay.
(h)
Modification of a Support Order
with Child Support and Spousal Support or Child Support and Alimony Pendente
Lite Entered Before January 1, 2019.
(1) In a subsequent modification proceeding
of an order awarding child support and spousal support or child support and
alimony
pendente lite, as provided in Pa.R.C.P. No.
1910.18(d), the trier-of-fact may on its own motion or upon the motion of a
party:
(i) make an unallocated award in favor
of the spouse and one or more children; or
(ii) state the support amount allocable to
the spouse and to each child.
(2) The trier-of-fact shall clearly state
whether the order is allocated or unallocated even if the child support and
spousal support or child support and alimony
pendente lite
amounts are delineated in the order.
(i) If
the order is allocated, the Pa.R.C.P. No. 1910-16.4(a)(2)(Part IV) formula
determines the spousal support amount.
(A) As
the formula assumes an unallocated order, if the order's allocation utilizing
the formula is inequitable, the trier-of-fact may adjust the order, as
appropriate.
(B) In making an
adjustment, the trier-of-fact shall consider the federal income tax
consequences.
(C) If the parties
are in higher income brackets, the income tax considerations are likely to be a
more significant factor in determining a support amount.
(ii) If the order is unallocated or the order
is for spousal support or alimony pendente lite only, the
trier-of-fact shall not consider the federal income tax consequences.
(3) A support award for
a spouse and children is taxable to the obligee while an award for the children
only is not. Consequently, in certain situations, an award only for the
children will be more favorable to the obligee than an award to the spouse and
children. In this situation, the trier-of-fact should utilize the method that
provides the greatest benefit to the obligee.
(4) If the obligee's monthly net income is
equal to or greater than the obligor's monthly net income, the guideline amount
for spouse and children is identical to the guideline amount for children only.
Therefore, in cases involving support for spouse and children, whenever the
obligee's monthly net income is equal to or greater than the obligor's monthly
net income, the guideline amount indicated shall be attributed to child support
only.
(5) Unallocated child support
and spousal support or child support and alimony pendente lite
orders shall terminate upon the obligee's death.
(6) In the event that the obligor defaults on
an unallocated order, the trier-of-fact shall allocate the order for child
support collection pursuant to the Internal Revenue Service income tax refund
intercept program or for registration and enforcement of the order in another
jurisdiction under the Uniform Interstate Family Support Act,
23 Pa.C.S. §§ 7101-7903. The trier-of-fact shall provide
the parties with notice of allocation.
(7) An unallocated child support and spousal
support or child support and alimony pendente lite order is a
final order as to the claims covered in the order.
(8) Motions for post-trial relief cannot be
filed to the final order.
