A long standing problem for matrimonial attorneys has been the calculation of child support in situations in which two parents have equal physical custody of children. The Court Rules tell us that when the combined net income of the two parents is $187,200 or below, the Guidelines must be utilized as a rebuttable presumption for child support. Practice tells us that the Guidelines are rarely deviated from in this income category.
The Child Support Guidelines are predicated on the supposition that there are three types of expenditures that parents make for or on behalf of their children.. The first is fixed expenses (representing 38% of the child support amount) are those expenses incurred even when the child is not residing with the parent. Examples of this include housing-related expenses, such as mortgage or rent, utilities, household furnishings and household care items. The second is variable expenses (representing 37% of the child support amount). Variable expenses are incurred only when the child is with the parent. This category includes items such as transportation and food. Finally, controlled expenses (representing 25% of the child support amount) are those expenses which include items like clothing, personal care, entertainment and other miscellaneous items.
The Guidelines presume that each parent has fixed and variable expenses on behalf of the child. On the other hand, the Guidelines also presume that controlled expenses are ONLY incurred by the parent who is designated the “Parent of Primary Residence.” However, in a true joint custody scenario, neither parent is the Parent Primary Residence and both have controlled expenses. The calculation of child support in these cases has been problematic for many years and there has been little consistency as to the child support awards in these cases. On April 13, 2009, a published trial court decision was handed down in which there is a specific formula to determine child support.
In Deffler v. Deffler, the court directed child support to be calculated by utilizing a three step process. The first step is to multiply the Basic Child Support Amount determined in Line 9 of the Child Support Guidelines – Shared Parenting Worksheet by the payor’s proportionate share of the total income of the two parents. Second, this figure should be multiplied by 25%, which represents the controlled expenses assumed by the Child Support Guidelines. Third, the product of this calculation is then subtracted from the paying parent’s “Adjusted Basic CS Amount,” as reflected on Line 15 of the Worksheet. The result reached is the payor’s child support obligation.
This formula takes into account that both parties, and not just the parent receiving child support, pay controlled expenses for the child during their equally shared parenting time.
EDITOR'S NOTE: As this issue is only a trial court opinion, it is neither binding on other trial courts nor the Appellate Division. The Deffler case cites a reported decision, Benisch v. Benisch, which has a more cumbersome calculation within the case. In addition, as acknowledged as a possibility in Benisch and what often happened in practice, is that the child support guidelines would be run once with one parent getting the extra over night (183 to 182) and then re-running the guidelines with the other parent getting the extra overnight. - those two results would then be offset to get the support payable from one to the other (typically from the higher income parent to the lower income parent.) Eric S. Solotoff
This directive on the part of the courts will also lend consistent , formulaic approach to determining support when there is true time sharing and both parents have equal responsibility.