Deviating from Child Support Guidelines

A judge is entitled to deviate from the strict application of guideline support. Guideline

support is the amount of support that is generated by using the child support calculator.

Guideline support is presumptively correct; however, like all presumptions, the presumption can

be rebutted.

When a judge deviates from guideline support, he/she has to indicate, on the record, why

applying the guidelines would be unjust or inappropriate. The judge must enter findings of fact

that justify the deviation. It is important that the record include a clear explanation for deviating

from the guidelines.

There are nine stated exceptions to the strict application of the child support guidelines.

Almost all of the nine exceptions involve the concept of special circumstances. Parties

attempting to establish special circumstances must do so by a preponderance of the evidence –

that is, they must show that they are more likely right than wrong when they say special

circumstances exist. Special circumstances are the equivalent to economic circumstances.

Of the nine stated exceptions, I want to focus on two. The first exception reads: “The

economic consequences or the presence of stepparents, and stepchildren as well as natural and

adopted children may be considered.” The second exception reads: “Other special circumstances

to avoid an unreasonably low or confiscatory support order considering all relevant

circumstances.”

Here is a recurring scenario. A divorced man begins to live with but not marry a woman.

They live their lives as if the woman is a stepparent, even though technically the woman isn’t a

stepparent because there is no marriage. As the first exception indicates, if the woman was a

stepparent, we could consider the economic circumstances or the presence of the stepparent as a

factor in determining whether to deviate from guideline support. Perhaps the woman earns a

large salary. Perhaps the woman’s financial contribution to the new family allows the divorced

man to live a new, elevated lifestyle – different than the lifestyle he had when he was married.

The second exception indicates that we can consider other special circumstances so we can avoid

an unreasonably low or confiscatory support order considering all relevant circumstances. Is the

presence of the live-in female, parading as a step-parent to be considered?

Case law informs us that the payment of child support is not to benefit the person

receiving child support but to benefit the children. Child support is being offered to provide the

children with an adequate standard of living when they live with either parent.

The presence of economic circumstances reveals the sometimes devastating effects of

divorce. Often, one parent has a better go of it going forward than the other. The legislature was

wise to give courts some wiggle room so the effects of divorce can be ameliorated – at least to

some extent.

 

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