Adopted Effective October 1, 1989
Including Amendments Received Through July 1, 1998
Guideline
1. Preface
2. Use of the Guidelines.
3. Determination of Child Support Amount.
A. Definition of Weekly Gross Income.
B. Income Verification.
C. Computation of Weekly Adjusted Income.
D. Basic Child Support Obligation.
E. Adjustments to the Basic Child Support Obligation.
F. Computation of Child Support.
G. Adjustments to Parent's Child Support Obligation
4. Modification.
5. Federal Statutes.
6. Additional Commentary.
Split or Joint Custody
Abatement of Support During Extended Visitation
Deviation from Guideline Amount For Regular Visitation
Tax Exemptions
Cost of Transportation for Visitation
Accountability of the Custodial Parent For Support Received
Emancipation: Support Orders For Two or More Children
Extraordinary Education Expenses
Worksheet -- Child Support Obligations
Worksheet -- Post-Secondary Education.
State of Indiana Guideline Schedules for Weekly
Support Payments.
GUIDELINE 1. PREFACE
Guidelines to determine levels of child 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 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. If one parent has custody, the amount
calculated for that parent is presumed to be spent directly on the
child. For the noncustodial parent, the calculated amount establishes
the level of child support.
Commentary
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, Sec. 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, Sec. 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. Sec. 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, Sec. 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, Sec. 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.
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. From the parents' combined income , work-related child care
expense, if any, is deducted.
3. The total, after subtracting any work-related child care expense,
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.
4. 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.
5. 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, 19__, it shall increase to $_______ and,
on September 1, 19__, 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.
Both parents are members of the armed forces and the military provides
housing.
The children spend substantially more time with the noncustodial
parent than in the average case.
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 visitation.
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
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, normally with a range of
$25.00?$50.00 weekly. In such cases, the Court should carefully review
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 specific amount of child support should always be ordered.
The Guideline Schedules provide calculated amounts of child support to
a combined weekly adjusted income level of 4,000 dollars ($4,000.00)
or 208,000 dollars ($208,000.00) per year. For cases with higher
combined weekly adjusted income, child support should be determined by
using the formula found in Commentary to Guideline 3D3.
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.
It is also intended that these guidelines be used in paternity cases
and other child support actions.
Commentary
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. It is, however, recommended that a specific amount of support
be set. Even in situations where the noncustodial parent has no
income, courts have routinely established a child support obligation
at some minimum level. An obligor cannot be held in contempt for
failure to pay support when there is no means to pay, but the
obligation accrues and serves as a reimbursement if the obligor later
acquires the ability to meet the obligation.
Income in Excess of Guideline Schedule. The Guidelines Schedules for
Weekly Support Payments provide calculations for the basic support
obligation to a combined weekly adjusted income of $4,000.00 or annual
adjusted income of $208,000.00. The formula for computing support,
when combined annual adjusted income is above $208,000.00 , is
contained in Commentary to Guideline 3D3.
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 under IC
31-15-7-2. 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 as a
result of a former marriage (Line 1 C). 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 pursuant to IC
31-15-7-4. No such deduction is given for amounts paid by an obligor
as the result of a property settlement resulting from a former
marriage, 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. Federal law
now requires that 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.
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
imputed income based upon "in-kind" benefits. 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, capital gains, social security benefits, workmen's
compensation benefits, unemployment insurance benefits, disability
insurance benefits, gifts, prizes, and alimony or maintenance received
from other marriages. 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 .
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
F.I.C.A. tax payment that exceeds the F.I.C.A. tax that would be paid
by an employee earning the same Weekly Gross Income.
3. Unemployed, Underemployed and Potential Income. If a parent is
voluntarily unemployed or underemployed, 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 work history, occupational qualifications, prevailing job
opportunities, and earnings levels in the community. If there is no
work history and no higher education or vocational training, it is
suggested that weekly gross income be set at least at the federal
minimum wage level.
4. Natural and Adopted Children Living in the Household. In
determining a support order, there should be an adjustment to Weekly
Gross Income of parents who have natural or legally adopted children
living in their households, and who were born or adopted subsequent to
the prior support order.
Commentary
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, should be included. Only the income of the parties is
included in Weekly Gross Income. The income of the spouses of the
parties is not included in Weekly Gross Income.
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 (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 F.I.C.A. 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 (7.65%) to the same
maximum. The self-employed are therefore permitted to deduct one-half
of their F.I.C.A. 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 nonguaranted,
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.
When potential income is attributed to a spouse, the court should not
also attribute child
care expense which is not actually incurred. The four 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 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 should be determined to be a part of
the gross income of that parent. The amount to be attributed as
potential income in such a case would 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 is unreasonable to determine his or her potential at the minimum
wage level.
(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 based
upon the parent's job capabilities and education if other employment
is available. Potential income equivalent to the federal minimum wage
may be attributed to that parent.
d. Imputing Income. Whether or not income should be imputed to a
parent whose living expenses have been substantially reduced due to
financial resources other than the parent's own earning capabilities
is also a fact-sensitive situation requiring 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 rent, utilities, or groceries, may be the basis
for imputing 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 imputed
income or both should be considered in arriving at gross income.
3. Adjustment of Weekly Gross Income for Subsequent Children. In
determining support orders, an adjustment should be made in arriving
at Weekly Gross Income of the parents in instances where either or
both have natural or legally adopted children who were born or adopted
subsequent to the prior support order. The adjustment should be
computed as follows:
STEP 1: Determine the number of natural or legally adopted children
born or adopted by the custodial and/or noncustodial parents
subsequent to entry of the present support order, and who are living
in the respective parent's household.
STEP 2: Adjust the Weekly Gross Income of each parent according to the
number of natural or legally adopted children in their household, by
multiplying their Weekly Gross Incomes by one of the following
percentages and entering the product on line 1 of the worksheet.
The applicable percentages are derived from the average percentages
calculated by using the Guideline Schedules for Weekly Support
Payments. When there is one natural or legally adopted child born or
adopted subsequent to the present support order living in the
custodial or noncustodial parent's household, multiply Weekly Gross
Income by .935. The factor of .935 is derived by dividing the average
base support percentage for one child (13.1%) by 2 and then
subtracting that number (6.5) from 100. When there are two such
children, multiply by .903; when there are three, multiply by .878;
when there are four, multiply by .863; and when there are five,
multiply by .854.
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. In considering a modification
request, an adjustment should be made to the parents' respective
Weekly Gross Incomes for the two (2) natural children born to the
noncustodial parent
since entry of the present support order and the adopted child of the
custodial parent, adopted since entry of the present order. The
respective Weekly Gross Incomes of the parties to be entered on line 1
of the worksheet would be as follows:
Noncustodial.................$500 x .903 = $451.50, and
Custodial.......................$300 x .935 = $280.50.
B. Income Verification.
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.
Commentary
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. 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
should 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 1D 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. If
work-related child care expense is paid, it is subtracted from total
weekly adjusted income in arriving at combined weekly adjusted income.
1. Court Orders for Prior-born Child(ren) (Line 1A of Worksheet). The
amount(s) of any court order(s) for child support for prior-born
children should be deducted from weekly gross income.
2. Legal Duty of Support for Prior-born Children (Line 1B of
Worksheet). Where a party has a legal support duty for children born
prior to the child(ren) for whom support is being established, not by
court order, an amount reasonably necessary for such support shall be
deducted from weekly gross income to arrive at weekly adjusted income.
This deduction is not allowed for step-children. (See line 1B of
worksheet)
3. Alimony or Maintenance From Prior Marriage (Line 1C of Worksheet).
The amounts of alimony ordered in decrees from foreign jurisdictions
or maintenance arising from a prior marriage should be deducted from
weekly gross income.
Commentary
Determining Weekly Adjusted Income. After weekly gross income is
determined, the next step is to compute weekly adjusted income (line
1D. of the worksheet). Certain deductions, discussed below, are
allowed from weekly gross income in arriving at weekly adjusted
income. Work-related child care expense is deducted from total weekly
adjusted income in arriving at the combined weekly adjusted income
figure that is taken to the Guideline Schedules For Weekly Support
Payments.
1. Modification of Support in Prior Marriage. When considering a
petition to modify support arriving out of a prior marriage, no
deduction is allowed for support ordered as the result of a second or
subsequent marriage. Establishment of a support order in a second
marriage should not constitute a change in circumstance in the first
marriage which would lead to modification of the support order from
the prior marriage. Each child is being supported from the money from
which they could have expected to be supported had the dissolution not
occurred.
Likewise, if support is being established or modified for a child born
out of wedlock, the date of birth of the child would determine whether
or not a deduction for the support of other children is allowed in
arriving at weekly adjusted income. If a child is born out of wedlock
before the children of the marriage, no deduction for the children of
the marriage is allowed. A deduction for children of the marriage is
allowed in establishing support for a child born out of wedlock after
the children of the marriage.
2. Legal Duty to Support. A deduction is allowed for support actually
paid, or funds actually expended, for children born prior to the
children for whom support is being established. This is true even
though that obligation has not been reduced to a court order. The
obligor bears the burden of proving the obligation and payment of the
obligation.
A custodial 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
support.
Example: In establishing support for children of a subsequent
marriage, the custodial spouse should be permitted to deduct the
support he or she would pay in the prior marriage (pursuant to line 6
of Worksheet) if custody had been placed with the former spouse.
This necessitates the computation in the second dissolution of the
support that would be paid by each spouse in the former marriage. This
amount is inserted on line 1B of the Worksheet.
3 . Alimony or Maintenance From Prior Marriage. 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 arising from a prior marriage. 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 which are made under IC 31-15-7-4
, 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 1 C 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 a post-secondary education worksheet is used to
determine support. Work-related child care expense for these children
is to be deducted from total weekly adjusted income in determining the
combined weekly adjusted income that is used in selecting the
appropriate basic child support obligation.
Commentary
Use of Guideline Schedules.
1. Combined Weekly Adjusted Income With No Work?Related Child Care
Expense. When there is no work-related child care expense, 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. As
previously explained, these Guidelines do not contain figures for
combined weekly adjusted income of less than $100.00 or more than
$4,000.00.
2. Combined Weekly Adjusted Income With Child Care Expense. When there
is work-related child care expense, the total weekly adjusted income
is reduced by the total child care expense in arriving at the combined
weekly adjusted income that is used in determining the basic child
support obligation from the Guideline Schedules for Weekly Support
Payments. See discussion of work-related child care expense in
Commentary to Guideline 3E1 for a more comprehensive explanation of
the change.
3. Income in Excess of Guideline Schedules. The following formula is
specifically adopted for incomes in excess of the table and has no
application to income under $4,000.00 per week. When combined weekly
adjusted income exceeds $4,000.00, it is necessary to use this
formula: [Note: see unedited original text at Court Rules web site for
full formula]
The examples below make it apparent that use of the formula is not
complicated. With a little practice and an inexpensive calculator
equipped with a natural logarithm key, the calculation is easily made.
(1) Assume combined weekly adjusted income is $4,000 with one child,
then
Support = [89.42443 x ln(4,000)] - 411.24
= [89.42443 x (8.29405)] - 411.24
= 741.69066 - 411.24
= $330.00 (rounded to nearest dollar)
(2) Assume combined weekly adjusted income is $6,000, then
Support = [89.42443 x ln(6,000)] - 411.24
= [89.42443 x (8.69951)] - 411.24
= 777.94915 - 411.24
= $367.00 (rounded to nearest dollar)
Before moving on to example (3), please note that the support level
for second and subsequent children is not simply 2, 3, or 4 times the
support for one. The appropriate multiples are set forth in the
following table:
support for 2 children = 1.50 x support for one child
support for 3 children = 1.875 x support for one child
support for 4 children = 2.10938 x support for one child
support for 5 children = 2.24121 x support for one child
support for 6 children = 2.31125 x support for one child
support for 7 children = 2.34736 x support for one child
support for 8 children = 2.36570 x support for one child
This progression on the Guideline Schedules does not go beyond five
children.
(3) Assume combined weekly adjusted income is $7,500 with 3 children,
then
Support for one child = 89.42443 x ln(7,500) - 411.24
= 89.42443 x [8.92266] - 411.24
= 797.90363 - 411.24
= $386.66 (support for one child rounded to nearest penny)
Support for 3 children= 89.42443 x 1.875 x support for one child
= 1.875 x 386.66
= $725.00 (rounded to nearest dollar
The basic child support obligation is placed on line 4 of the
worksheet. (An explanation of line 3 computations, Percentage Share of
Income, is given later.)
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 either parent,
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
custodial 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. Child care costs required for
active job searches are allowable on the same basis as costs required
in connection with employment.
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.
3. Extraordinary Health Care Expense .Please refer to Support
Guideline 3 H for treatment of this issue.
4. Extraordinary Educational Expense . Please refer to Support
Guideline 6 for treatment of this issue.
Commentary
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 noncustodial
parent should share. Before the Guidelines, many child support orders
did not consider work-related child care because it was viewed as a
business expense of the custodial parent. The frequent result was
that, after child care costs were deducted from support, only minimal,
if any, money remained for
the payment of food, clothing and shelter expenses for the child. The
custodial parent was then providing the majority of the support, if
not all of the support, for the child(ren) on an income that was often
much less than the income of the noncustodial parent.
From their inception, the Indiana Guidelines have used an add-on
method of including work-related child care expense in the computation
of support. Most states use the same or a similar method of dealing
with this expense. A legitimate criticism of the add-on method,
however, is that it artificially overstates the income of the parties
by adding on an item that is actually an expense.
Work-related child care expense, as defined above, is now subtracted
from the parties' total weekly adjusted income in arriving at the
combined weekly adjusted income figure on which the basic child
support obligation is calculated from the Guideline Schedules For
Weekly Support Payments. This yields a lower basic child support
obligation . Work-related child care expense is then added to the
basic child support obligation to arrive at the total child support
obligation, which is then apportioned between the parties based on
their percentage share of total weekly adjusted income.
In circumstances where the custodial parent claims the work-related
child care credit for federal 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 custodial 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.
2. Cost of Health Insurance For Child(ren) (Worksheet Line 4B). The
weekly 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. Additions To Parent's
Child Support Obligation). Only that portion of the cost actually paid
by a parent is added to the basic obligation. If health insurance
coverage is provided through an employer, only the child(ren)'s
portion should be added and only if the parent actually incurs a cost
for it.
Health insurance coverage should normally be provided by the parent
who can obtain the most comprehensive coverage at the least cost. If
a separate policy of insurance is purchased for the children,
determining the weekly cost should be no problem, but in the most
common situation coverage for the child(ren) will occur through an
employer group plan. If the employer pays the entire cost of coverage,
no addition to the basic obligation will occur. If there is an
employee cost, it will be necessary for the parent to contact his or
her employer or insurance provider to obtain appropriate documentation
of the parent's cost for the child(ren)'s coverage.
At low income levels, giving the noncustodial parent credit for
payment of the health insurance premium may reduce support to an
unreasonably low amount. In such instance the Court may, in the
exercise of its discretion, deny or reduce the credit.
A number of different circumstances may exist in providing health
insurance coverage, such as a situation in which a subsequent spouse
or
child(ren) are covered at no additional cost to the parent who is
paying for the coverage. The treatment of these situations rests in
the sound
discretion of the court, including such options as prorating the
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. Although a monetary
obligation is computed for each parent, the custodial parent's share
is not payable to the other parent as child support. Instead, the
custodial parent's share is presumed to be spent directly on the
child.
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 may state a factual basis for the deviation and
proceed to enter a support amount that is deemed appropriate.
Commentary
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 1Dof 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. Deviation From Guideline Amount. If the court determines that the
Guideline amount is unjust or inappropriate, 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 One.
G. Adjustments to Parent's Child Support Obligation (Worksheet Line 7)
The parent's child support obligation (Worksheet Line 7) may be
subject to three (3) adjustments.
1. 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 entitled
Additions to the Basic Child Support Obligation).
2. Credit For Exercise of Regular Visitation. The court may grant the
noncustodial parent a reduction in his or her weekly child support
obligation (Line 6 of Worksheet) up to ten percent (10%) of that
obligation (See Support Guideline 6 Commentary entitled Deviation From
Guideline Amount for Regular Visitation).
3. 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 6 Commentary entitled Extraordinary Educational Expenses).
Commentary
(See Commentary to Support Guideline 3E and Support Guideline 6)
H. Treatment of Health Care Obligation
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 custodial parent up to six (6%) of the
basic child support obligation (Line 4 of the worksheet) annually
since the Guideline Schedules for Weekly Support Payments include six
percent (6%) for ordinary uninsured health care costs. 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.
Commentary
Apportionment of Health Care Expenses. The data on which the Guideline
schedules are based include a component for ordinary medical expenses.
Specifically, six percent (6%) of the support amount is for health
care. The non-custodial parent is, in effect, prepaying health care
expenses every time a support payment is made. Consequently, the
Guidelines require that the 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 worksheet. That
computation is made by multiplying Line 4 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 non-custodial parent is required to
contribute toward payment of those uninsured costs. For example, if
line 4 is $150.00 per week, the calculation would be as follows:
$150.00 x 52 = $7,800.00 x .06 = $468.00.
Thus, on an annual basis, the custodial parent is required to spend
$468.00 for health care of the child(ren) before the non-custodial
parent is required to contribute. The custodial parent must document
the $468.00 on health care.
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.
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 and welfare 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.
The order regarding the payment of the child(ren)'s health expenses
should specify which parent will have the responsibility to provide
health insurance.
GUIDELINE 4. MODIFICATION
The provisions of a child support order may be modified only if there
is a substantial and continuing change of circumstances.
Commentary
Substantial and Continuing Change of Circumstances. Before a child
support order may be modified in Indiana, it is necessary for a party
to demonstrate a substantial and continuing change in circumstances
that makes the present order unreasonable or that the amount of
support previously ordered differs from the Guideline amount presently
computed by more than twenty percent (20%) IC 31-16-8-1. A change in
circumstances may be the result of a change in the income of the
parents or it may result from changes in the expenses of child rearing
that are specifically considered in the Guidelines.
If the amount of support computed at the time of
modification is significantly higher than that previously ordered and
would require a drastic reduction in the obligor's standard of living,
consideration may be given to phasing in the additional support. This
approach would allow the obligor time to make adjustments in his or
her standard of living. Again, it is not the intent of the Guidelines
to drive obligors into noncompliance by reducing their spendable
income below subsistence level.
GUIDELINE 5. FEDERAL STATUTES
These guidelines have been drafted in an attempt to comply with, and
should be construed to conform with applicable federal statutes.
Commentary
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.
SUPPORT GUIDELINE 6. ADDITIONAL COMMENTARY
Additional Commentary is offered to assist courts, practitioners and
litigants in the application of the guidelines.
Commentary
Split or Joint Custody. The Indiana Child Support Guideline worksheet
does not address the problem of establishing a support order in split
or
joint custody situations. IC IC 31-17-2-13 and 31-17-2-4. Infinite
possibilities exist in terms of time spent with each parent, travel
between
parents, and other considerations. These such determinations are left
to the sound discretion of the trial courts for handling on a
case-by-case
basis. A review of the guidelines of different states indicates
differing methods of handling these situations. The court should be
aware that when
families are sharing physical custody, the total expenditures by the
parents may be substantially affected in a variety of ways. The
Indiana Guidelines are based on the economic assumption that the
children live in one household only. By adjusting the percentage of
support between the two households, based upon percentage of time, the
standard of living the children enjoy in either household may be
compromised. Where a split or joint custody situation results in a
support order that deviates from the rebuttable presumption, the court
must explain the rationale for such
deviation in its order.
In those situations where each parent has physical custody of one or
more children (split custody), it is suggested that support be
computed 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.
4. The parent who owes the greater amount of support pays the
difference computed in step 3, above.
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 One.
Abatement of Support During Extended Visitation. Many of the same
problems that are encountered in establishing support in split and
joint
custody arrangements exist in determining whether or not, or how much,
to abate support during periods of extended visitation, and the
subject is not addressed in the Guidelines. In considering abatement,
courts and parties should consider travel costs, length of stay,
savings to the custodial parent, the respective incomes of the
parents, and ongoing expenses of the custodial parent while the
children are with the noncustodial parent. If the support obligation
of the noncustodial parent is minimal, the custodial parent may not be
able to meet the ongoing additional expenses occasioned by custody of
the children if support is abated during extended visits.
It is recommended that when visitation for periods of seven (7) days
or longer occurs under a court order that consideration be given to
abating support in an amount not to exceed fifty percent (50%) of the
weekly support. This amount of abatement recognizes that the
noncustodial parent will be bearing the routine child care expenses
during visitation and that the custodial parent is relieved of those
expenses. It also recognizes that the custodial parent has ongoing
expenses in maintaining a year-round home for the child that do not
abate during periods of visitation. If the noncustodial parent is in
arrears in support when visitation occurs, it is further recommended
that he or she still be permitted to abate support, but that the
regular support amount be required to be paid during visitation, with
the abated amount applying toward the arrearage.
Deviation From Guideline Amount for Regular Visitation. The
computation of support under the Guidelines does not take into
consideration credit for time the child(ren) spend with the
noncustodial parent during regular visitation. If visits occur on
alternate weekends, as is customary in many court orders, the
noncustodial parent bears the costs associated with child rearing two
(2) days of every fourteen (14) days, or 14.3% of the time. Taking
into account the ongoing costs in the custodial home, it is
recommended that the noncustodial parent's child support obligation
(Line 6 of Worksheet) be reduced by up to ten percent (10%) per week
in situations where the noncustodial parent regularly exercises
alternate weekend visitation. Presumably the noncustodial parent would
then have additional discretionary income to spend on the needs of the
child(ren) while visiting.
In addition to the economic aspects of visitation, a high value should
be placed on visitation between the child(ren) and the noncustodial
parent.
In the vast majority of cases, maintaining a close relationship and
frequent contact between the child(ren) and both parties is recognized
as being in the best interest of the child. Therefore, courts should
consider deviation from the Guideline when it will encourage
visitation.
It is not recommended, however, that a reduction of ten percent (10%)
simply be given in each support order. The court should assure itself
through evidence presented that the visitation will occur on a regular
basis. Further, if support is set at a minimal amount, such a
reduction in the support order could jeopardize the custodial parent's
ability to support the child(ren). If that is the case, such a
deviation from the Guideline should not be given.
Tax Exemptions. Development of these Guidelines did not take into
consideration the awarding of the income tax exemption. Instead, it is
recommended that 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 noncustodial parent, but the court may order
the custodial parent to release or sign over the exemption for one or
more of the children to the noncustodial parent pursuant to I.R.C.
Sec. 152(e). To effect this release, the custodial parent must
sign and deliver to the noncustodial parent I.R.S. Form 8332, Release
of Claim to Exemption for
Child of Divorced or Separated Parents. The noncustodial parent 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. Judges may wish to consider ordering
the release to be executed on an annual basis, contingent upon support
being current at the end of the calendar year for which the exemption
is ordered as an additional incentive to keep support payments
current. It may also be helpful to specify a date by which the release
is to be delivered to the noncustodial parent each year.
Shifting the exemption for minor children does not alter the filing
status of either parent. I.R.C. Sec. 2(b) defines head of household in
terms of the
length of time the child resides with the taxpayer, not in terms of
who claims the exemption. Therefore, a noncustodial parent's filing
status is not elevated from single to head of household simply by
claiming an exemption. Likewise, a custodial parent may still file as
head of household even though the exemptions for all children living
in the household have been released to the noncustodial parent.
The work-related child care credit may still be claimed by a custodial
parent who has released the exemption for the child for whom the
credit is
claimed, and the noncustodial parent cannot claim the work-related
child care expense. This exemption may only be claimed by the parent
who
qualifies as the head of the household in which the child resides.
I.R.C. Regulations, Section 1.44 A Sec. 1(b)(2). Neither does the
release of
exemption affect the ability of the head of household to claim an
earned income credit under I.R.C. Section 32.
In determining when to order a release of exemptions, it is
recommended that at minimum 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; and
(5) the financial burden assumed by each parent under the property
settlement in the case.
Cost of Transportation for Visitation. Courts should not automatically
require the noncustodial parent to bear the entire expense for
transportation of the child(ren) for purposes of visitation. Among
other factors, consideration should be given to the reason for the
geographic
distance between the parties and the financial resources of each
party.
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 apparently recognized that
an accounting
may sometimes be needed when, in 1985, it passed into law IC
31-1-11.5-13(e) , now 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 therefore, 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. However, an order for an accounting should not
be made in cases where support received by the custodial parent is
$50.00
or less per week. 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.
Emancipation:Support Orders for Two or More Children. Support orders
for two or more children, under the Guidelines, are stated as an in
gross or total amount rather than on a per child basis. The total
obligation will not decrease when the oldest child reaches twenty-one
(21) years
of age, or upon the occurrence of some other series of events that
gives rise to emancipation, absent judicial modification of the order.
Conversely, the law recognizes that where an order is framed in terms
of an amount per child, an abatement of respective shares will occur
upon
each child's emancipation.
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 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.
Support orders may, however, be framed to allow for automatic
abatement of support upon the emancipation of the first child if that
emancipation is by reaching age twenty-one (21) or by virtue of some
other significant event that will not be disputed between the parties.
EXAMPLE: Assume a combined weekly adjusted income of $1,000.00
provided solely by the noncustodial parent, and an order for support
of three children. No other factors being considered, a support order
would provide for payment of $285 per week for three children; $228
weekly upon the oldest child reaching age twenty-one (21) years of
age; and $152 per week after the second oldest child reaches
twenty-one (21), to and until the youngest child's twenty-first
birthday, unless otherwise modified by the court.
It is recommended that such a delineation should be an exception and
not the rule. It is incumbent upon counsel who represent parents in
dissolutions to attempt to familiarize them with the need to
judicially amend the order of support when children are emancipated
and to discuss
with the parties what constitutes emancipation.
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.
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; if 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.
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 scholarships, grants,
student loans, summer and school year employment and other
cost-reducing programs available to the student. These sources of
assistance should be credited to the child's share of the educational
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
benefit from the tax treatment of post-secondary expenses. Courts may
consider 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,
supplies,
student activity fees and the like. Room and board will also be
included when the student resides on campus or otherwise is not with
the custodial 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 in
question will be required when the child resides on campus or
otherwise is not
with the custodial parent.
A consideration of the foregoing factors is addressed in the Worksheet
on Post-Secondary Education Expense which should be utilized in making
a fair distribution of this expense.
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 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.
The court may wish to consider in the category of "Other"
educational costs (Line B(5) of the Worksheet) such items as
transportation, car
insurance, clothing, entertainment and incidental expenses.
c. Use of Post-Secondary Education Worksheet
The Worksheet makes two determinations. Section One determines the
obligation of each parent for payment of post-secondary education
expenses based upon his or her pro-rata share of the weekly adjusted
income from the Child Support Obligation Worksheet after contribution
from the student toward those costs. The method of paying such
obligation should be addressed in the court's order. When the student
remains at home with the custodial parent while attending an
institution of higher learning, generally no reduction to the
non-custodial 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. 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.
a. 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.
b. 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 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.
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