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Deviations from Child Support Guidelines

Quick Facts
  • Several factors can influence a departure from the support guidelines.
  • Departure from guideline if public authority is recipient requires extreme hardship.
  • Legal custody no basis for departure from guidelines.

General Factors

Among other reasons, deviation from the presumptive child support obligation is intended to encourage prompt and regular payments of child support and to prevent either parent or the joint children from living in poverty.

In addition to the child support guidelines and other factors used to calculate the child support obligation, the court takes into consideration the following factors in setting or modifying child support or in determining whether to deviate upward or downward from the presumptive child support obligation:

  1. all earnings, income, circumstances, and resources of each parent, including real and personal property, but excluding income from excess employment of the obligor or obligee that meets the statutory criteria;
  2. the extraordinary financial needs and resources, physical and emotional condition, and educational needs of the child to be supported;
  3. the standard of living the child would enjoy if the parents were currently living together, but recognizing that the parents now have separate households;
  4. whether the child resides in a foreign country for more than one year that has a substantially higher or lower cost of living than this country;
  5. which parent receives the income taxation dependency exemption and the financial benefit the parent receives from it;
  6. the parents' debts;
  7. the obligor's total payments for court-ordered child support exceed the limitations.

Debt Owed to Private Creditors

In establishing or modifying a support obligation, the court may consider debts owed to private creditors, but only if:

  1. the right to support has not been assigned;
  2. the court determines that the debt was reasonably incurred for necessary support of the child or parent or for the necessary generation of income. If the debt was incurred for the necessary generation of income, the court may consider only the amount of debt that is essential to the continuing generation of income; and
  3. the parent requesting a departure produces a sworn schedule of the debts, with supporting documentation, showing goods or services purchased, the recipient of them, the original debt amount, the outstanding balance, the monthly payment, and the number of months until the debt will be fully paid.

A debt schedule must contain a statement that the debt will be fully paid after the number of months shown in the schedule, barring emergencies beyond the parent's control.

Any further departure below the guidelines that is based on a consideration of debts owed to private creditors must not exceed 18 months in duration. After 18 months the support must increase automatically to the level ordered by the court. This section does not prohibit one or more step increases in support to reflect debt retirement during the 18-month period.

If payment of debt is ordered pursuant to this section, the payment must be ordered to be in the nature of child support.

Evidence

The court may receive evidence on the factors in this section to determine if the guidelines should be exceeded or modified in a particular case.

Payments Assigned to Public Authority

If the child support payments are assigned to the public authority, the court will not deviate downward from the child support guidelines unless the court specifically finds that the failure to deviate downward would impose an extreme hardship on the obligor.

Joint Legal Custody

An award of joint legal custody is not a reason for deviation from the guidelines.

Self-Support Limitation

If, after payment of income and payroll taxes, the obligor can establish that they do not have enough for the self-support reserve, a downward deviation may be allowed.