By: John R. Coleman, Jr. and Candace M. WilliamsColeman, Chambers & Rogers , LLP
As many of you have learned, the Georgia Legislature passed new child support guidelines in 2005 and appointed a Commission to draft the guidelines along with the formula to calculate child support. Currently in Georgia, the law requires child support be based on a flat percentage calculated from the non-custodial parents gross annualized income. (O.C.G.A. § 19-6-15) The Court can presently take into consideration various facts, including but not limited to, shared physical custody arrangements, imputed income, educational costs, daycare costs, and income of custodial parent. If you or somebody you know has been divorced within the last ten years, the proposed law will have a substantial impact on their lives. Senate Bill 382, which will likely take effect July 1, 2006, is based upon a “shared income” approach. The majority of the states in the United States have gone to a shared income approach in establishing child support. The shared income approach is based upon the utilization of a rate table, which establishes a base number, which in theory is sufficient to meet the child’s or children’s needs. Georgia law clearly states that both parent must support their children. It is believed by many that there may be additional changes to this proposed law during the legislative session. It is also believed by many that the changes will not take effect on July 1, 2006 based upon this being an election year. Many believe that this law will not take effect until January 1, 2007. There are likely to be numerous challenges to this new way of calculating child support. If you or someone you know was divorced in the last ten years and are either paying or receiving child support, this change could substantially impact your life. With the uncertainty of what will eventually be adopted by the Legislature, we have developed the scenario below to help you help you understand the shared income approach.
You consider the amount each parent earns. For example, if the father earns $6,000.00 per month and the mother earns $4,000.00 per month then there is a total amount of $10,000.00, the father’s pro rata share would be 60% and the mother’s would be 40%. This process takes the total amount of combined income and breaks it out into each parent’s pro rata share of the responsibility based upon the child support table adopted.
The first step is calculating gross income. The second step is calculating the adjusted gross income. You take the parents gross income which can be adjusted one of three ways: (1) self employment tax by one half. (2) If the parent has pre-existing child support ordered, the gross income could be adjusted by the pre-existing child support the parent is actually paying. (3) At the court’s discretion, the court can consider other qualified children in the home and the amount of money it takes to support other children in the home. The third step is taking the combined adjusted income of both parents income and apply child support obligations tables, which will be finalized by July 1, 2006. The next step would be to adjust this amount. The adjusted income can be adjusted by health insurance costs, work related childcare costs, and also if applicable by a parent time adjustment. Actual payments of alimony should not be considered as a deduction from gross income, but may be considered as a deviation or a factor to vary from the final presumptive child support order. Once you get the basic child support obligation amount you pro rate that to the percentage of income. The definition for the percentage of income for each parent calculated by dividing each parent adjusted gross income by the combined adjusted gross income of both parents. Then there is the new term Parenting Time Adjustment, which is adjustment of the non-custodial parents portion of basic child support obligation based on non-custodial parents parenting time with the child. A recommendation from the Commission to the Legislature is that this be upon the non-custodial parents court ordered visitation with the child otherwise it would be an evidentiary nightmare. The definition of what constitutes a is still the subject of debate.
There are several types of expenses within the new guidelines such as food, clothing, & housing, which will be incorporated into the basic child support guideline table. There are the add-on expenses or the additional expenses that are mandated such as heath insurance costs, which is pro-rated to the parties based upon their percentage of income or their pro-rata responsibility. Childcare expenses may also be considered on a pro rata basis. However, at the very bottom of the work sheets being developed by the Child Support Commission it is anticipated there will be lines which state “for the future,” each parent’s pro-rata responsibility will be in blank. If you take the previous example of $6,000,00 and $4,000.00 monthly income example listed above the father paid 60% and the mother paid 40% of all medical expenses and that it is for your co-pays and deductibles that are not covered by medical insurance.
Under the proposed Guidelines, the Court could also take into consideration expenses for summer camp, art lessons, sports, etc. One is extraordinary educational expense, which may involve a child with special needs, special treatment, and special therapy. It can also be private school for a child, but the criteria’s under the new law must be appropriate for the parent’s financial abilities and the lifestyle of the child. The new Statute, if adopted, has deviations similar to the prior Statute. In order for the Court to deviate from the presumptive amount of child support, the Court must make written findings setting forth the basis for the deviation.
One of the more significant changes could be in the area of modification actions. Under the new Statute, the Court may award attorneys fees in a modification action. The Court may also award attorneys fees in a situation of parenting time adjustment where the non-custodial parent failed to exercise the visitation. If one can prove there is a more than 15% or more variance from the current guidelines to the child support obligation amount under the new tables one can file a petition within the two years. However, this does not mean one can walk out with a modified order; they must get into court and prove this is a situation to justify a modification. The 15% or more variance is only the jurisdictional requirement to get you into court, it does not mean you will automatically get a modification. Based upon our conversation with practitioners in the Family Law field, we believe that approximately 60% to 75% of the folks who were divorced within the last ten years may qualify for modification. It is important that you consult with a Family Law attorney who is following the proposed changes. Likewise, if you are presently going through a divorce, you should consult with your lawyer regarding the amount of presumptive child support to either be paid or received if the new law is adopted.
This article is simply to familiarize you with the proposed Legislative changes in the area of child support. This article is not to be considered a comprehensive analysis of the proposed legislation. If you have comments or suggestions for the Child Support Commission you may visit http://www.georgiacourts.org/childsupp.html. If you would like additional information about the new guidelines or would like to inquire about the filing of a modification please contact our offices 678-928-5757 or you may email our domestic attorneys at Bob@colemanchambers.com or Candace@colemanchambers.com.