This is about child support in Alaska after divorce, including how child support gets figured, how parents can change child support, when the court orders for child support to be withheld from paychecks, and when the court will deviate from child support guidelines in Alaska.
This information is from Steve Pradell, the DivorceInfo Network Lawyer for Alaska. Click here to visit his web site.
- How does child support get figured?
- How do you change child support?
- Does child support get deducted from the payor’s paycheck? How?
- When will the court allow a deviation from the guidelines?
How does child support get figured?
A. Understanding Civil Rule 90.3
Unless a court orders otherwise, every child in Alaska has a right to receive support from both biological parents, regardless of whether the parents are separated, divorced or were never married. Child support helps single parent families to afford essentials such as food, clothes, shelter and health care. A court can order parents to pay child support and health insurance to meet the needs of children.
Child support in Alaska is calculated differently depending on whether one parent has the children over 70% of the time. If so, a formula is employed whereby the person responsible to pay support, also called the obligor, must pay a percentage of his or her adjusted annual income as child support to the obligee, the person who receives the support on behalf of the children. Adjusted annual income means a parent’s total income from all sources minus mandatory deductions, such as taxes, mandatory retirement deductions and union dues, as well as child support and alimony payments ordered from prior relationships, and work related child care expenses.
According to the formula, if there is one child, the obligor normally must pay 20% of his or her adjusted income, 27% for two children, 33% for three children, and an extra 3% for each additional child.
If neither parent has custody of a child for over 70% of the time, a parent who has custody over 30% of the year has what is called “shared physical custody” for purposes of child support. In such a case, support is calculated differently, using a formula which takes into account the income of both parents and the time each parent spends with the children.
Even if an obligor does not have income, a minimum child support payment of not less than $50.00 is generally required. An obligor can receive a credit for payments made for medical or dental insurance or educational payments made for the children. Child support orders can be modified if the court determines that there has been a significant change of circumstances.
The Child Support Enforcement Division (CSED) can assist parents in obtaining and enforcing court orders for support. In certain cases, child support and past due support, also called arrearages, can be garnished from the wages of the obligor. Unfortunately, the backlog at CSED can delay the process by months as the office oversees thousands of cases. It is often difficult to reach caseworkers at CSED due to the “kids” line, which only allows messages to be left regarding child support matters. The kids line can be called at (907) 276-3441, or, for in-state toll free calls, (800) 478-3300. These difficulties have caused some parents to turn to attorneys to obtain or modify proper support orders in a timely manner.
Generally, parents in Alaska may not make child support agreements which are contrary to the policies set forth in the child support law, known as Alaska Civil Rule 90.3. The formula set forth in Civil Rule 90.3 can be difficult to apply in unusual cases. Obtaining legal advice about the application of the rule to a specific situation is often necessary. Lawyers can assist parents in completing the necessary documentation of income which a court will use to determine the correct monthly child support payments under Alaska Law.
B. Changes in the Law
Recently the Alaska Supreme Court approved changes in the state’s child support laws, which are also known as Alaska Civil Rule 90.3. This chapter identifies some of these changes.
One change will effect families where the obligor, the parent who pays support, earns over $60,000.00 in adjusted annual income per year. Previously, the court would not normally consider the amount of adjusted annual income a parent receives over $60,000.00 in calculating child support. The new rules provide that the court will cap the adjusted annual income of an obligor parent at $84,000.00. As a result, parents who receive future child support awards will normally be able to include a percentage of up to $84,000.00 of the obligor’s adjusted annual income, and child support awards will increase in applicable cases.
Another change in the law recognizes an unfortunate reality which occurs all too often after “shared” custody is ordered. Shared custody for child support purposes occurs if both parents have visitation at least 30% of the time. In the past, obligors who were given a reduction in child support due to their award of shared custody have neglected to exercise visitation provided by the court. They have paid less support and neglected to visit their children as ordered by the court. This has been unfair to the parents who collect support, because they are supporting the children for the time when the other parent was supposed to be exercising visitation. The new rule provides that failure to exercise sufficient physical custody to qualify for the shared physical custody child support deduction is grounds for a parent to ask the court to modify a child support order. It may be wise for clients to keep a journal of actual visitation to determine whether a modification is warranted.
A third change concerns health care expenses. The new law provides that the court must first consider whether the children are eligible for health benefits through insurance or the Indian Health Service before ordering parents to provide health care coverage. The court must then equally divide the cost of insurance between both parents unless there is good cause not to do so. An Obligor parent can decrease child support by his or her portion that is paid for court ordered health insurance. Uncovered health care expenses up to $5,000.00 will normally be equally allocated between the parents, and those in excess of $5,000.00 will be allocated based upon the parties’ relative financial circumstances when the expense occur. Within 30 days of the receipt of a bill or other verifying statement, a parent must reimburse the other parent for his or her share of the uncovered expenses. This new change will resolve problems created by past divorce or dissolution decrees where the issue of uncovered medical expenses was overlooked, and reduce the need for additional litigation.
Fourth, a recent federal law requires that Alaska change its own laws to allow for what is called a periodic modification of child support. This can occur every three years without the need for showing that a material change of circumstances has occurred, provided that there has been no change in child support during the past three year period. This change should make it easier for those who receive child support, as the court can require the payor (called the obligor) to submit current salary information in order to modify support.
Finally, the rules have changed regarding obligors who are custodial parents of children from prior relationships. Child support calculations are normally made as a percentage of an obligor parent’s adjusted annual income. In the past, obligors could deduct from gross income child support and alimony payments paid in support of other children to determine their adjusted annual income. A new rule change allows parents who have custody of children from other relationships to claim a deduction for the support of these children in calculating their adjusted annual income. Thus, parents who must support prior children who live with them may now pay less support from children from later relationships.
How do you change child support?
According to the Alaska Civil Rule which controls this issue:
Modification. (1) A final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order. For purposes of this paragraph, support includes health insurance payments made pursuant to . . .this rule. (2) Child support arrearage may not be modified retroactively, except as allowed by [statute]. A modification which is effective on or after the date that a motion for modification, or a notice of petition for modification by the Child Support Enforcement Division, is served on the opposing party is not considered a retroactive modification.
Does child support get deducted from the payor’s paycheck? How?
Yes. Normally, unless the court approves an alternate arrangement, the court will order that child support be garnished from an obligor’s (i.e. child support payor’s) wages.
When will the court allow a deviation from the guidelines?
The commentary to the Child Support Rule states as follows:
EXCEPTIONS
A. Generally. Child support in the great majority of cases should be awarded under 90.3(a) or (b) in order to promote consistency and to avoid a tendency to underestimate the needs of the children. Nevertheless, the circumstances in which support issues arise may authorize courts to vary support awards for good cause.
The court may apply this good cause exception only upon proof by the parent requesting support be varied that there is clear and convincing evidence that manifest injustice would result if the support award were not varied. In addition, a prerequisite of any variation under 90.3(c) is that the reasons for it must be specified in writing by the court. What constitutes “good cause” will depend on the circumstances of each cause. Three situations constituting “good cause” are discussed . . . in [other] sections. . . These three specific exceptions are not exclusive; however, the general exception for good cause may not be interpreted to replace the specific exceptions. Absent unusual circumstances, 90.3(c)(1)(A), or the exceptions for low or high incomes, 90.3(c)(1)(B) and (c)(2), the rule presumes that support calculated under 90.3(a) or (b) does not result in manifest injustice.
B. Unusual Circumstances. 90.3(c)(1) provides that a court shall vary support if it finds, first, that unusual circumstances exist and, second, that these unusual circumstances make application of the usual formula unjust. The subparagraph specifies several possible factors that the court may consider when deciding whether unusual circumstances exist. This determination should be made considering the custodial parent’s income because the percentage of income approach used in Alaska tends to slightly understate support relative to the national average for cases in which the custodial spouse does not earn a significant income. This understatement relative to the national average becomes substantial if the custodial parent has child care expenses. The application of the unusual circumstances exception to particular types of factual situations is considered below.
1. Agreement of the Parents. The fact that the parties, whether or not represented by counsel, agree on an amount of support is not reason in itself to vary the guidelines. The children have an interest in adequate support independent of either parent’s interest. Thus, approval of any agreement which varies the guidelines, whether in a dissolution, by stipulation or otherwise, must be based upon an explanation by the parties of what unusual factual circumstances justify the variation.
2. Subsequent Children. A parent with a support obligation may have other children living with him or her who were born or adopted after the support obligation arose. The existence of such “subsequent” children, even if the obligor has a legal obligation to support these children, will not generally constitute good cause to vary the guidelines. However, the circumstances of a particular case involving subsequent children might constitute unusual circumstances justifying variation of support. The court should reduce child support if the failure to do so would cause substantial hardship to the “subsequent” children. In addition, the interests of the subsequent family may be taken into account as a defense to a modification action where an obligor proves he or she has taken a second job or otherwise increased his or her income specifically to better provide for a subsequent family. This defense to an upward modification action should not be allowed to the extent that the prior support was set at a lower amount prior to the adoption of this rule, or to the extent that the obligor’s increase in income is limited to ordinary salary increases. In considering whether substantial hardship to “subsequent” children exists, or whether the existence of a subsequent family should defeat a motion to increase child support, the court should consider the income, including the potential income, of both parents of the “subsequent” children.
3. Relocation of Custodial Parent. The relocation of the custodial parent to a state with a lower cost of living normally will not justify a reduction in support. The level of Alaska’s guidelines is comparable to the national average. The fact that the obligor parent’s income has in effect marginally increased relative to the children’s living expenses simply enables the children to be supported at a slightly higher level.
4. Prior and Subsequent Debts. Prior or subsequent debts of the obligor, even if substantial, normally will not justify a reduction in support. The obligation to provide child support is more important than the obligation to fulfill most other obligations. However an obligor parent may attempt to present evidence which shows the existence of exceptional circumstances in an individual case.
5. Income of New Spouse. The income of a new spouse of either the custodial or obligor parent normally will not justify a variation in support. Either party may attempt to show that exceptional circumstances exist in a particular case.
6. Age of Children. While the costs of raising children who are very young or who are over about ten years old are generally greater than raising other children, this in itself does not justify an increase in support. However, it should be considered in concert with other circumstances, and a parent always may seek to establish exceptional expenses in a particular case.
7. Denial of Visitation. A denial of visitation may not be countered with a reduction in support. . . .. Neither may non-payment of support be countered by a denial of visitation. Courts should use their powers to strictly enforce the visitation and custody rights of obligor parents.
8. Property Settlement. A parent may justify variation of the guidelines by proving that a property settlement in a divorce or dissolution between the parents provided one of the parents with substantially more assets than the parent otherwise would have been entitled to, that this inequity was intended to justify increasing or decreasing child support, and that this intent specifically was stated on the record. Any such change in monthly child support may not exceed the actual excess of the property settlement apportioned over the minority of the child. However, courts should not approve in the first instance unequal property settlements which are meant to increase or decrease child support payments. “Property divisions are final judgments which can be modified only under limited circumstances, whereas child support awards can be changed periodically under much more liberal standards. One should not be a trade-off for the other.” Arndt v. Arndt, 777 P.2d 668 , (Alaska 1989).
9. Overtime Income. In most cases income from overtime or a second job will be counted as adjusted annual income under Rule 90.3(a).However, the court has discretion not to include this income when, for example, the extra work is undertaken to pay off back child support.
C. Low Income of Obligor. 90.3(c)(1)(B) provides that the guidelines do not apply if the obligor has a gross income below the federal poverty level. The applicable figure from the Federal Register is for the obligor alone, without regard to any subsequent family of the obligor. Subsequent children, and any income from a subsequent spouse, are relevant, if at all, only under 90.3(c)(1)(A) concerning the unusual circumstances exception.
Even if the obligor has an income of less than the poverty level, or no income at all, a minimum support of $50.00 per month applies. This $50.00 minimum support applies for all children, not to each child separately. The minimum level may be reduced under 90.3(a)(3) based on a visitation credit, or reduced under 90.3(b) based on the offset of the other parent’s support obligation.
D. High Income of a Parent. Rule 90.3 provides that the percentages for child support will not be applied to a parent’s adjusted annual income of over $72,000, unless the other parent is able to present evidence which justifies departure from this general rule. The factors which the court should consider in such a determination are specified in the rule.
Other issues in Alaska: