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The Pennsylvania Support Guidelines were promulgated to ensure that “persons similarly situated shall be treated similarly” with regard to child support, spousal support and alimony pendente lite. While the support guidelines, therefore, look at individuals and families with a broad view to determine if they are “similar,” as no two families are alike, there are several financial and familial scenarios that reveal certain perhaps unintended outcomes in applying the support rules, including where one parent has all or nearly all of the children’s custody time, when there is no mortgage on the marital residence and when the recipient of alimony is forced to use his or her alimony to pay for the children’s expenses. These circumstances create unique issues for litigants and the courts, which could be addressed with minor adjustments to the guidelines so that more families can be treated “similarly.”

One Parent With 100 Percent of the Parenting Time

The guidelines provide the presumptive amount of child support that a parent should pay based on the parties’ combined monthly net income, generally requiring the parent with less custody time to pay support to the parent with greater custody time, see Rule 1910.16-3 (and 1910.16-3.1 for high-income cases). The comments in Rule 1910.16-4 specifically acknowledge that “the basic support schedule incorporates an assumption that the children spend 30 percent of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time.” Rule 1910.16-4(c) explicitly provides for a 10 percent reduction in the amount of support owed by the obligor when he or she has at least 40 percent of the parenting time and a 20 percent reduction when the obligor has 50 percent of the parenting time. The guidelines provide a concrete, default adjustment in the support calculation when the obligor spends more time with the children, but what about situations where the obligor has minimal or no contact with the children?

Although the comments to Rule 1910.16-4 acknowledge that an upward deviation may be appropriate in cases where the obligor has limited contact with the children, the guidelines do not provide the same default adjustment when the obligor has limited custody time. The absence of the same automatic (upward) deviation to be applied in circumstances when the obligor has less than 30 percent of the parenting time reduces the overall consistency of support awards for similarly situated individuals and potentially requires an obligee with a majority or 100 percent of the parenting time to assume a disproportionate share of the financial responsibility for the children, essentially requiring a parent with more custody time, but the same income and child support, to use the same child support to provide for more of the children’s expenses, while providing the payor with a windfall.

To reduce the uncertainty of litigating the issue of a parent having 100 percent of the custody time, the downward support adjustment could simply be applied in the reverse in cases where the payor has less than 30 percent of the custody time, increasing the recipient’s award by the same percentages as the award is reduced when the payor has more custody time.

No Mortgage on the Marital Residence

Rule 1910.16-6(e) states that “the guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners’ insurance.” The rule then provides a formula for an adjustment to the support amount where the mortgage exceeds 25 percent of the payor’s income and support. Therefore, some portion of a theoretical mortgage payment is included in the support guidelines.

The guidelines are silent regarding situations where the mortgage on the marital residence has been paid in full prior to the entry of a support award, or where there is no mortgage at all. The party living in the marital residence may, therefore, be living “rent free” in the home and receiving excess support while the party out of the home likely has housing expenses, which are not captured in the support guidelines.

The support formula, including the data relied on to determine the child support schedule, should be reviewed to determine what component is intended to cover the mortgage so that a formula for a downward adjustment in cases without a mortgage can be determined. Alternatively, since the support rules note that the mortgage adjustment kicks in after a 25 percent threshold, if the mortgage is less than 25 percent of the income of and support received by the spouse living in the marital residence, a proportional adjustment of up to 25 percent could be applied.

The Circular Nature of the Child Support and Alimony Analysis

Alimony can have multiple purposes: it can be to allow a party to acquire an education; to compensate a party for a shortfall in assets; or to pay for a party’s reasonable needs and expenses. Where alimony is intended to pay for a party’s expenses, it is often calculated on a dollar-for-dollar basis, perhaps adjusted to account for tax consequences as well. However, Rule 1910.16-2(7) notes that alimony that is “intended to finance the obligee’s general living expenses” should be included in a party’s income for purpose of calculating child support. By including such alimony in the recipient’s income, who is then also likely the party receiving child support, the alimony is being used to pay child support (as it reduces the child support that will be received). The result is that alimony intended to be used to cover a parent’s expenses, on a dollar-for-dollar basis, is now insufficient to cover that parent’s expenses as it is now being used for child support.

Understanding the appropriateness of subtracting alimony from the payor’s income before calculating child support so that a party is not paying support with income they no longer have, inclusion of that alimony in the recipient’s income for child support purposes should be addressed on a case-by-case basis to ensure that the recipient can sustain himself or herself.

Scott J.G. Finger, a shareholder at Hofstein Weiner and Meyer, practices family law at the firm.

 Justin W. Soulen, an associate with the firm, handles a wide variety of family law issues.