Your time is almost up!!! On Saturday August 10 at 5PM the survey to solicit public comment to the child support guidelines will be closed. This is your chance to make your voice heard by the committee and others. The committee is supposed to redact your name and any personal information prior to release of the survey results to the public. To take the online survey and provide your opinions, click here.
We’ve spent countless hours over the past month reviewing the guidelines changes. While the 2020 guidelines would make some welcome changes, other changes are destined to create confusion and questions amongst practitioners for years to come. If you’re a litigating parent, these changes may impact you as a point of contention in your case.
While we can’t provide a comprehensive review of all changes to the 2020 guidelines or their impact on each case, we have provided some of the highlights of the improvements and potential pitfalls. These are just our opinions.
- Economist Report
We applaud the committee and Dr. Pelkowski for providing a much more robust explanation of the guidelines and the underlying methods. This has been needed since the guidelines were developed. A couple additional points of clarity could be added for completeness. The EPT formula should be explained and how it was developed. Specifically, some folks don’t know that the Direct Expenses (DE) percentages used in the EPT formula represent a parent’s half of the DE. There should also be explanation why exactly half is correct and not the income proportionate share.
- Redlines - there are changes made to the guidelines that are not underlined or struck out. This calls into question whether there are other unmarked changes.
Example: at the end of section III.B.5 and the end of III.B.6.
- II.F.1 Imputed Income
Renamed the "Ability to Earn income." Some changes have been made to this section to consider potential employment barriers. However, the proposed language seems confusing as it seemingly applies to “custodial” and “non-custodial” parents. Shared residential parents are both custodial and non-custodial (or are they neither). In Kansas, custodial and non-custodial are not defined as parenting arrangements. The term "residential parent" may be more accurate. However, in most applications of these phrases, they could simply be replaced with “parent” or “party” without consequence. Most of the time the section is applicable to either parent regardless of their custodial arrangement. Simplify the guidelines and use the word "party" and it seems future proof.
- II.F.1.f Incarceration
The language is a little wordy and difficult to follow, but the concept of allowing child support modifications for incarcerated parents is long overdue. This change has been requested by practicing attorneys and the DCF for years. One argument for this change is that a married parent who is incarcerated loses their income and the family loses that income. The Kansas guidelines model a married family. There’s no point in forcing a high child support amount on a parent that has no income. We agree with this change, but the language is a mess.
- II.I.2.ii Social Security Disability Income (Gratuity)
In this section the committee has made the assertion that if an SSDI check, for a disabled child support obligor/payor's child, is issued to the obligee, it is to be applied to the obligor's child support obligation. If the amount of the SSDI check exceeds the obligor’s child support obligation, the excess payment is to be written off as a “gratuity.” However, if the check doesn’t cover the actual child support obligation, the obligor must pay the balance. This is similar to Court Trustees in certain districts performing what is called an “arrearage calculation.” This calculation determines if a child support obligor has underpaid (only). They completely disregard if the obligor has overpaid. This should not be a one-way street. A gratuity is a voluntary gift not a withholding from a parent’s check. There may be underlying caselaw forcing this change. If you're aware of something, please let us know.
- Guidelines Examples
It appears the examples, which have traditionally been provided in the guidelines appendices, have been replaced by a website link. However, the web link does not point to any examples. Therefore, it’s difficult to confirm how some changes might work. Perhaps if some examples are completed using the proposed guidelines, it will be confirmed that some sections are quite confusing.
- III.B Applications
The guidelines should round percentages to the nearest hundredth of a percent, not tenth. Due to the number of significant digits involved in the calculation, a tenth of a percent is not sufficient. This is a difficult topic to explain, but percentages should be rounded to the nearest hundrenth of a percent.
- II.B.7 Sharing Equal Time and Expenses
A significant change is the elimination of "nearly equal" in this definition. Therefore, for parents to qualify for shared residency, they will need to argue that they have exactly 50.00% parenting time. If that is not the case by .000001%, a windfall results to one parent. Rest assured there will be many cases involved detailed and potentially creative calculatings of parenting time. As we know, most years have 365 days. Who knows, maybe 2020 (leap year) and 2024 will have more cases than ever. The best way to fix this is to fix the parenting time adjustment. A more realistic fix is to qualify this paragraph further by stating "equal when considering a typical 28-day schedule, excluding holidays, birthdays, and other such special occasions." That would defeat the purpose of a parent fighting for an extra birthday or holiday to tilt the scale.
- III.B.7.b Equal parenting Time Formula
A new paragraph now clarifies that the parent receiveing the direct expenses portion of the EPT is responsible for the direct expenses listed in section II.A.1.
- III.B.7.b (g)
The percentages used for the EPT formula have been decreased a few percent for the lower 2 income brackets. The highest income bracket remains the same. There is no discussion provided as to why this has been changed. The appropriate place would be the economist report.
- III.B.9 Cost of Living Differential & p 67, Cost of Living Differential
There is a significant change to the calculation of income for out-of-state parents. This used to be calculated using the BLS data table for the average weekly wage. However, a different approach has been proposed which uses the Regional Price parities by State by the Department fo Commerce, Bureau of Economic Analysis.
It appears there may be an error with how the cost of living adjustment is calculated. On p 67 an example is provided to show how cost of living differential (CLD) is calculated. The denominator in the division is NS RPP, which is New State Regional Price Parity. This should possibly be KS RPP. The reason why is we'd like to calculate the CLD as a percentage deviation from Kansas income. What has been calculated here is the deviation from the New State income. Let's consider this - a parent moves to a more expensive state. Income will be higher but so will cost of living. We don't need to guess or calculate the new income because we have a real W2 or pay stub to review. What we're looking to answer is how much more is the cost of living in the New State over Kansas. We would then subtract that cost of living differential from the income of the parent to make it equivalent to a Kansas income. Example:
Currently: CLD = (90-104.4)/104.4 x $4000 = $(551.6), adjusted income is $3448.40
Should Be: CLD = (90-104.4)/90 x $4000 = $(640), adjusted income is $3360
As a check, we referred to another economist study website for confirmation. https://research.stlouisfed.org/publications/cost-of-living/calculator
This is something that should be checked by the economist and confirmed prior to releasing the guidelines.
- IV.E.2.b Parenting Time Adjustment (PTA)
The PTA percentages have been doubled for 2020. The 5/10/15% adjustments are now 10/20/30%. There is no explanation for the increase. The PTA is a section of the guidelines we are quite passionate about. The parenting time adjustments are not based on any economic study. They represent a “best guess” as to how money flow changes due to parenting time. The committee has, for years, chased the elusive “cliff effect” where child support drops significantly for shared residential parents. We believe the committee is trying to close the gap between the PTA and shared residency. Although the PTA cannot mathematically achieve this result for all cases. A solution that eliminates the gap entirely was previously presented to the committee, but was dismissed. Several states using a sliding scale approach, which eliminates the cliff effect and minimizes needless litigation.
The PTA percentage is now multiplied by line D.2 of the worksheet. This is another change that is long overdue. It is our belief that this change corrects a mathematical error that has been present in the guidelines for many years. Previously, a parent would actually receive a decreased parenting time adjustment if he/she paid more for insurance.
- Tax Adjustments
Where do we start. We will probably need to write another blog just for tax adjustments.
In general, the section numbering and some of the guidelines language seems to be needlessly confusing. Other states have adopted a "commentary" accompanying document which allows the committee to explain the intention and how to address common pitfalls. Income, and deductions are applicable to both parties regardless of their custodial arrangement. It seems like the guidelines attempt to force the math in the favor of the obligee if the committee feels like the amount isn’t quite right. This can create mathematical anomalies that present themselves years down the road or create financial windfalls to one parent. One example is the old 80/20 shared residency formula. Another would be the addition of “premier sports.”
There are likely many other concerns we have with the guidelines, but they will never be perfect. We should focus on eliminating errors and eliminating guesswork. Such things still exist in the guidelines.