[49 Pa.B. 170]
[Saturday, January 12, 2019]
[Continued from previous Web Page]
PART A. CALCULATION OF MONTHLY NET INCOME
OBLIGOR OBLIGEE 1. Total Gross Income per pay period
(See Pa.R.C.P. No. 1910.16-2(a))______ ______ 2. Deductions
(See Pa.R.C.P. No. 1910.16-2(c))(______) (______) 3. Net Income
(line 1 minus line 2)______ ______ 4. Conversion to Monthly Net Income
(if pay period is other than monthly)______ ______ PART B. SPOUSAL SUPPORT OR ALIMONY PENDENTE LITE
Without
Dependent
ChildrenWith
Dependent
Children5. Obligor's Monthly Net Income
(line 4)______ ______ 6. Obligor's child support, spousal support, alimony pendente lite or alimony obligations to children or former spouses who are not part of this action, if any.
(See Pa.R.C.P. No. 1910.16-2(c)(2))(______) (______) 7. Obligor's Net Income available for spousal support or alimony pendente lite
(line 5 minus line 6)______ ______ 8. Obligor's Net Income percentage for spousal support or alimony pendente lite × 33%
× 25% 9. Obligor's proportionate share of spousal support or alimony pendente lite
(line 7 multiplied by line 8)______ ______ 10. Obligee's Monthly Net Income
(line 4)______ ______ 11. Obligee's Net Income percentage for spousal support or alimony pendente lite × 40%
× 40% 12. Obligee's proportionate share of spousal support or alimony pendente lite
(line 10 multiplied by line 11)______ ______ 13. Preliminary Monthly Spousal Support or Alimony Pendente Lite amount
(line 9 minus line 12—if the result is less than zero, enter a zero on line 13)______ 14. Adjustments for Part E Additional Expenses
(See Pa.R.C.P. No. 1910.16-6)______ 15. Total Monthly Spousal Support or Alimony Pendente Lite Amount
(line 13 plus or minus line 14, as appropriate)______ PART C - BASIC CHILD SUPPORT
OBLIGOR OBLIGEE 16. Monthly Net Income (line 4 and add the child's monthly Social Security Disability or Retirement Derivative benefit amount, if any, to the Monthly Net Income of the party receiving the benefit pursuant to Pa.R.C.P. No. 1910.16-2(b)(2)(i) or (ii). ______ ______ 17. Preliminary Monthly Spousal Support or Alimony Pendente Lite amount, if any.
(line 13)(______) + 18. Adjusted Monthly Net Income
(for obligor, line 16 minus line 17; for obligee, line 16 plus
line 17)______ ______ 19. Combined Monthly Net Income
(obligor's line 18 plus obligee's line 18)______ 20. Basic Child Support Obligation
(determined from child support schedules in Pa.R.C.P. No. 1910.16-3 based on the number of children and line 19)______ 21. Net Income expressed as a percentage of Combined Monthly Net Income
(line 18 divided by line 19 and multiplied by 100)%
%
22. Preliminary Monthly Basic Child Support Obligation
(line 20 multiplied by line 21)______ ______ 23. Child's Social Security Derivative Disability or Retirement Benefit. (if the benefits are paid to the obligee, enter the benefit amount on the line for the party whose retirement or disability created the child's benefit pursuant to Pa.R.C.P. No. 1910.16-2(b)) ______ ______ 24. Adjusted Monthly Basic Child Support Obligation
(line 22 minus line 23—if the result is less than zero, enter a zero on line 24)______ ______ PART D. SUBSTANTIAL OR SHARED PHYSICAL CUSTODY ADJUSTMENT, IF APPLICABLE (See subdivision (c))
25.a. Percentage of time obligor spends with children (divide number of overnights with the obligor by 365 and multiply by 100) %
b. Subtract 30% ( 30%)
c. Difference
(line 25a minus line 25b)%
d. Obligor's Adjusted Percentage Share of the Basic Monthly Support Obligation
(line 21 minus line 25c)%
e. Obligor's Preliminary Adjusted Basic Monthly Support Obligation
(line 20 multiplied by line 25d)______ f. Further adjustment, if necessary under subdivision (c)(2) ______ g. Obligor's Adjusted Basic Child Support Amount ______ PART E. ADDITIONAL EXPENSES (See Pa.R.C.P. No. 1910.16-6)
26.a. Obligor's Share of Child Care Expenses ______ b. Obligor's Share of Health Insurance Premium (if the obligee is paying the premium) ______ c. Obligee's Share of the Health Insurance Premium (if the obligor is paying the premium) (______) d. Obligor's Share of Unreimbursed Medical Expenses ______ e. Other Additional Expenses ______ f. Total Additional Expenses
(add lines 26a, b, d, and e, then subtract line 26c)______ 27. Obligor's Total Monthly Support Obligation
(line 24 or 25g plus line 26f, if applicable)______ (2) The formula in Parts I through IV is for a modification of an order entered before January 1, 2019 that includes spousal support or alimony pendente lite.
Official Note: See subdivision (1) for an order entered on or after January 1, 2019, or for a modification of an order entered before January 1, 2019 that includes spousal support or alimony pendente lite in which the amendments to the Internal Revenue Code made by Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97) expressly apply to the modification.
PART I. BASIC CHILD SUPPORT
OBLIGOR OBLIGEE 1. Total Gross Income Per Pay Period
(See Pa.R.C.P. No. 1910.16-2(a))______ ______ 2. [Less ] Deductions
(See Pa.R.C.P. No. 1910.16-2(c))(______) (______) 3. Net Income
(line 1 minus line 2)______ ______ 4. Conversion to Monthly Amount (if pay period is other than monthly) Include [amount of] the child's monthly Social Security derivative benefit amount, if any, in the [income of the party receiving it] monthly net income of the party receiving the benefit pursuant to [Rule 1910.16-2(b)(2)(A) or (B)] Pa.R.C.P. No. 1910.16-2(b)(2)(i) or (ii). 5. Combined Total Monthly Net Income
(obligor's line 4 plus obligee's line 4)______ 6. [BASIC CHILD SUPPORT OBLIGATION] Basic Child Support Obligation
(determined from schedule at [Rule] Pa.R.C.P. No. 1910.16-3 based on number of children and line 5 [combined monthly net income])______ 7. Net Income Expressed as a Percentage Share of Income (divide line 4 by line 5 and multiply by 100) % % 8. Each Party's Preliminary Monthly Share of the Basic Child Support Obligation (multiply line 6 and 7) ______ ______ 9. [Subtract ] Child's Social Security Derivative Disability or Retirement Benefit [from the Monthly Share of Basic Child Support of the Party whose Retirement or Disability Created the Child's Benefits if the Benefits are Paid to the Obligee]
(if the benefits are paid to the obligee, enter the benefit amount on the line for the party whose retirement or disability created the child's benefit)______ ______ 10. Each Party's Adjusted Monthly Share of the Basic Child Support Obligation [(Not less than 0)] (line 8 minus line 9—if the result is less than zero, enter a zero on line 10) ______ ______ PART II. SUBSTANTIAL OR SHARED PHYSICAL CUSTODY ADJUSTMENT, IF APPLICABLE ([See] See subdivision (c) [of this rule])
11. a. Percentage of Time Obligor Spends with Children (divide number of overnights with the obligor by 365 and multiply by 100) % b. Subtract 30% ( %) c. Obligor's Adjusted Percentage Share of the Basic Monthly Support Obligation (subtract result of calculation in line 11b from line 7) % d. Obligor's Preliminary Adjusted Share of the Basic Monthly Support Obligation (multiply line 11c and line 6) ______ e. Further adjustment, if necessary under subdivision (c)(2) [of this rule] ______ f. Obligor's Adjusted Share of the Basic Child Support Amount
(Total of line 11d and line 11e)______ PART III. ADDITIONAL EXPENSES ([see Rule] See Pa.R.C.P. No. 1910.16-6)
12. a. Obligor's Share of Child Care Expenses ______ b. Obligor's Share of Health Insurance Premium (if the obligee is paying the premium) ______ c. [Less ] Obligee's Share of the Health Insurance Premium (if the obligor is paying the premium) (______) d. Obligor's Share of Unreimbursed Medical Expenses ______ e. Other Additional Expenses ______ f. Total Additional Expenses
(add lines 12a, b, d, and e, then subtract line 12c)______ 13. Obligor's Total Monthly Support Obligation
(add line 10 or 11f[, if applicable,] and line 12f, if applicable)______ PART IV. SPOUSAL SUPPORT OR APL with dependent children
14. Obligor's Monthly Net Income (line 4) ______ 15. [Less ] Obligor's Support, Alimony [Pendente Lite] Pendente Lite or Alimony Obligations, [if any,] to Children or Former Spouses who are not part of this action, if any ([see Rule] See Pa.R.C.P. No. 1910.16-2(c)(2)) (______) 16. [Less ] Obligee's Monthly Net Income (line 4) (______) 17. Difference
(line 14 minus lines 15 and 16)______ 18. [Less ] Obligor's Total Monthly Child Support Obligation [Without] without Part II Substantial or Shared Custody Adjustment, if any
(Obligor's line 10 plus line 12f)(______ ) 19. Difference
(line 17 minus line 18)______ 20. Multiply by 30% × [.]30% 21. [AMOUNT OF MONTHLY SPOUSAL SUPPORT or APL] Monthly Spousal Support or APL Amount
(line 19 multiplied by line 20)______ Without Dependent Children 22. Obligor's Monthly Net Income (line 4) ______ 23. [Less ] Obligor's Support, Alimony [Pendente Lite] Pendente Lite or Alimony Obligations[, if any,] to Children or Former Spouses who are not part of this action, if any ([see Rule] Pa.R.C.P. No. 1910.16-2(c)(2)) (______) 24. [Less ] Obligee's Monthly Net Income (line 4) (______) 25. Difference
(line 22 minus lines 23 and 24)______ 26. Multiply by 40% × [.]40% 27. [PRELIMINARY AMOUNT OF MONTHLY SPOUSAL SUPPORT OR APL]
Preliminary Monthly Spousal Support or APL amount
(line 25 multiplied by line 26)______ 28. Adjustments for Other Expenses ([see Rule] See Pa.R.C.P. No. 1910.16-6)
(line 12f)______ 29. [TOTAL AMOUNT OF MONTHLY SPOUSAL SUPPORT OR APL]
Total Monthly Spousal Support or APL amount
(line 27 plus or minus line 28, as appropriate)______
* * * * * (e) Support Obligations When Custodial Parent Owes Spousal Support. [Where] If children are residing with the spouse (custodial parent) obligated to pay spousal support or alimony [pendente lite (custodial parent)] pendente lite and the other spouse (non-custodial parent) has a legal obligation to support the children, the guideline [amount of] spousal support or alimony [pendente lite shall be] pendente lite amount is determined by offsetting the non-custodial parent's [obligation for support of the children] child support amount and the custodial parent's [obligation of] spousal support or alimony [pendente lite] pendente lite amount, and awarding the net difference either to the non-custodial parent as spousal support/alimony [pendente lite] pendente lite or to the custodial parent as child support as the circumstances warrant. The calculation is a five-step process:
[The calculation is a five-step process. First, determine the spousal support obligation of the custodial parent to the non-custodial parent based upon their net incomes from the formula for spousal support without dependent children. Second, recalculate the net income of the parties assuming the payment of the spousal support. Third, determine the child support obligation of the non-custodial parent for the children who are the subjects of the support action. Fourth, determine the recomputed support obligation of the custodial parent to the non-custodial parent by subtracting the non-custodial parent's child support obligation from Step 3 from the original support obligation determined in Step 1. Fifth, because the first step creates additional tax liability for the recipient non-custodial parent and additional tax deductions for the payor custodial parent and the third step involves an offset of the child support owed by the non-custodial parent against the spousal support or alimony pendente lite owed by the custodial parent, only that reduced amount will be taxable. Therefore, upon application of either party, the trier of fact may consider as a deviation factor the ultimate tax effect of the calculation.]
(1) Calculate the custodial parent's spousal support or alimony pendente lite obligation to the non-custodial parent based on the parties' monthly net incomes using the ''without dependent children'' formula in either Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV), as appropriate.
(2) Recalculate the parties' monthly net incomes by adjusting for the spousal support or alimony pendente lite payment paid or received in (1).
(3) Using the recomputed monthly net incomes from (2), calculate the non-custodial parent's child support obligation to the custodial parent.
(4) The final support amount is the difference calculated in (1) and (3).
(i) If the amount in (1) is greater than the amount in (3), the final amount is spousal support or alimony pendente lite payable to the non-custodial parent.
(ii) If the amount in (1) is less than the amount in (3), the final amount is child support payable to the custodial parent.
(5) If the proceeding is a modification of an order entered before January 1, 2019 that has federal tax consequences associated with spousal support or alimony pendente lite payments and the final order is spousal support or alimony pendente lite as in (4)(i), the offset spousal support or alimony pendente lite amount is federally taxable, and the trier-of-fact may deviate the final order due to the tax effect, as appropriate.
Official Note: See Pa.R.C.P. No. 1910.16-4.
[(f) Allocation. Consequences.
(1) An order awarding child support and spousal support or child support and alimony pendente lite may be unallocated or may state the amount of support allocable to the spouse and the amount allocable to each child. The order shall clearly state whether it is allocated or unallocated even if the amounts calculated for child support and spousal support or child support and alimony pendente lite are delineated in the order. However, Part IV of the formula provided by these rules assumes that an order will be unallocated. Therefore, if the order is allocated, the formula set forth in this rule shall be utilized to determine the amount of support allocable to the spouse. If the allocation of an order utilizing the formula would be inequitable, the court shall make an appropriate adjustment. Also, if an order is allocated, an adjustment shall be made to the award giving consideration to the federal income tax consequences of an allocated order as may be appropriate under the circumstances. The federal income tax consequences shall not be considered if the order is unallocated or the order is for spousal support or alimony pendente lite only.
Official Note: The 2005 amendment supersedes Diament v. Diament, 816 A.2d 256 (Pa. Super. 2003), to the extent that it held that the tax savings from payments for the benefit of a spouse alone or from an unallocated order for the benefit of a spouse and child must be considered in determining the obligor's available net income for support purposes. Pa.R.C.P. No. 1910.16-4(f)(1) states that the guidelines formula assumes that the order will be unallocated. The tax consequences of an order for a spouse alone or an unallocated order for the benefit of a spouse and child have already been built into the formula.
(2) When the parties are in higher income brackets, the income tax considerations are likely to be a more significant factor in determining an award of support. A support award for a spouse and children is taxable to the obligee while an award for the children only is not. Consequently, in certain situations, an award only for the children will be more favorable to the obligee than an award to the spouse and children. In this situation, the trier of fact should utilize the method that results in the greatest benefit to the obligee.
If the obligee's net income is equal to or greater than the obligor's net income, the guideline amount for spouse and children is identical to the guideline amount for children only. Therefore, in cases involving support for spouse and children, whenever the obligee's net income is equal to or greater than the obligor's net income, the guideline amount indicated shall be attributed to child support only.
(3) Unallocated charging orders for child support and spousal support or child support and alimony pendente lite shall terminate upon the death of the obligee.
(4) In the event that the obligor defaults on an unallocated order, the court shall allocate the order for collection of child support pursuant to the Internal Revenue Service income tax refund intercept program or for registration and enforcement of the order in another jurisdiction under the Uniform Interstate Family Support Act, 23 Pa.C.S. §§ 7101 et seq. The court shall provide notice of allocation to the parties.
Official Note: This provision is necessary to comply with various state and federal laws relating to the enforcement of child support. It is not intended to affect the tax consequences of an unallocated order.]
Explanatory Comment—2005 * * * * * Subdivision (e) governs spousal support obligations when the custodial parent owes spousal support. It has not been amended, other than to update the example to be consistent with the new schedule at Pa.R.C.P. No. 1910.16-3.
[Subdivision (f) states that the guidelines continue to presume that the order will be unallocated for tax purposes. However, language has been added to subdivision (f)(1), and a new Note has been inserted, to clarify that an obligor's tax savings from payment of a spousal support order or an unallocated order for a spouse and child should not be considered in calculating the obligor's available net income for support purposes. Subdivision (3) is intended to ensure alimony tax treatment of unallocated orders pursuant to § 71 of the Internal Revenue Code. Pa.R.C.P. No. 1910.19(d) provides that all spousal support and alimony pendente lite orders terminate upon the death of the obligee. Termination of a charging order does not affect arrears existing at that time. Subdivision (4) provides for administrative allocation of the order in two instances: 1) when the obligor defaults on the order and it becomes necessary to collect support by intercepting any income tax refunds that may be due and payable to obligor; and 2) when the obligor defaults and the order must be registered in another state under the Uniform Interstate Family Support Act (UIFSA). As the Note indicates, this administrative allocation is not intended to affect the tax consequences of the unallocated order.]
* * * * *
[Explanatory Comment—2018 The allocation of a support order is of great significance to the parties. The issue of allocation may arise in a support action if child support and spousal support or child support and alimony pendente lite are sought. The decision to allocate a support order will determine the party that pays the federal income tax, which affects the actual money available to the beneficiary of the order.
Allocation of a support order may not be appropriate in all cases. Rather, the decision to allocate must be based upon the facts of the particular case. Subdivision (f) makes clear that the court has the authority to allocate the order and that the decision rests in the discretion of the court. The court or the parties may raise the question of allocation.]
Rule 1910.16-6. Support Guidelines. [Adjustments to the] Basic Support Obligation Adjustments. [Allocation of] Additional Expenses Allocation.
The [trier of fact] trier-of-fact may allocate between the parties the additional expenses [identified] in subdivisions (a)—(e). [If under the facts of the case an order for basic support is not appropriate, the trier of fact] If a basic support order is inappropriate under the facts of the case, the trier-of-fact may allocate between the parties the additional expenses.
Except for the subdivisions (b)(4) and (e) expenses, the trier-of-fact shall calculate the parties' proportionate share of the additional expenses after adjusting the parties' monthly net income by the monthly spousal support or alimony pendente lite amount received or paid, and then dividing each party's adjusted monthly net income by the parties' combined monthly net income. However, the trier-of-fact shall not adjust the parties' monthly net incomes when apportioning the expenses in child support only cases.
(a) Child care expenses. [Reasonable] The trier-of-fact shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income[, shall be allocated between the parties in proportion to their monthly net incomes]. The [court] trier-of-fact may order that the obligor's share is added to his or her basic support obligation, paid directly to the service provider, or paid directly to the obligee. When a party is receiving a child care subsidy through the Department of Human Services, the [expenses to be] expense allocated between the parties [shall be] is the amount actually paid by the party receiving the subsidy.
Example. Mother has primary custody of the parties' two children and Father has partial custody. Mother's monthly net income is $2,000 and Father's is $3,500. At their combined income level of $5,500, the basic monthly child support from the schedule in Pa.R.C.P. No. 1910.16-3 is $1,463 for two children. As Father's income is 64% of the parties' combined monthly net income, his share is $936. Mother incurs child care expenses of $400 per month and Father incurs $100 of such expenses [each] per month. The total [amount of] child care expenses, $500, will be apportioned between the parties, with Father paying 64%, or $320. As [he] Father is already paying $100 for child care while the children are in his partial custody, he would pay the remaining $220 to Mother for a total child support obligation of $1,156 ($936 + $220 = $1,156).
* * * * * (b) Health Insurance Premiums.
[(1) A party's payment of a premium to provide health insurance coverage on behalf of the other party and/or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it, as long as a statutory duty of support is owed to the party who is paying the premium. If there is no statutory duty of support owed to the party who is paying the premium, the portion attributable to that person must be deducted from the premium as set forth in subdivision (2) below. If, prior to the entry of a divorce decree, a party's policy covers that party, a child, and a spouse and the spouse has separate additional coverage not needed to cover the child and/or the other party, the cost of the spouse's insurance premium shall not be allocated between the parties. If, prior to the entry of a divorce decree, a party provides coverage for that party and a child, but not the spouse, and the spouse has separate coverage, both parties' premiums shall be allocated between the parties in proportion to their respective incomes. If, prior to the entry of a divorce decree, each spouse has his or her own health insurance that does not cover the other party, and there are no children subject to the order, the cost of both parties' premiums shall be allocated between the parties in proportion to their respective incomes. If health insurance coverage for a child who is the subject of the support proceeding is being provided and paid for by a third party resident of either party's household, the cost shall be allocated between the parties in proportion to their net incomes. If the obligor is paying the premium, then the obligee's share is deducted from the obligor's basic support obligation. If the obligee is paying the premium, then the obligor's share is added to his or her basic support obligation. Employer-paid premiums are not subject to allocation.
(2) When the health insurance covers a party to whom no statutory duty of support is owed, even if that person is paying the premium as set forth in subdivision (1) above, or other persons who are not parties to the support action or children who are not the subjects of the support action, the portion of the premium attributable to them must be excluded from allocation. In the event that evidence as to this portion is not submitted by either party, it shall be calculated as follows. First, determine the cost per person by dividing the total cost of the premium by the number of persons covered under the policy. Second, multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of the support action. The resulting amount is excluded from allocation.
(2.1) The actual incremental amount of the premium which provides coverage for the subjects of the support order, if submitted by either party, shall be used in determining the amount of the premium to be allocated between the parties. If not submitted by either party, then the amount of the premium shall be divided by the number of persons covered to calculate the portion of the premium that provides coverage to each person.]
(1) The trier-of-fact shall allocate the health insurance premiums paid by the parties, including the premium attributable to the party paying the premium, provided that a statutory duty of support is owed to the party or child covered by the health insurance.
(i) If the party paying the health insurance premium is the obligor, the obligee's share is deducted from the obligor's basic support amount.
(ii) If the obligee is paying the health insurance premium, the obligor's share is added to his or her basic support amount.
iii) An allocation of health insurance premiums between the parties shall also include health insurance that is provided and paid by a third-party resident of either party's household (e.g., step-parent) for a child who is the subject of the support order.
(2) The trier-of-fact shall not allocate employer-paid premiums or premiums paid for a party, person, or child to whom no statutory duty of support is owed.
(i) If the parties present evidence of the excluded premium's actual amount—the amount attributed to a party, person, or child not owed a statutory duty of support—the trier-of-fact shall deduct the actual amount excluded from the total premium before allocating the health insurance premium between the parties.
(ii) If the parties do not present evidence of the excluded premium's actual amount, the trier-of-fact shall calculate the excluded amount as follows:
(A) determine the premium's cost per person by dividing the total premium by the number of persons covered under the policy;
(B) multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of, the support action; and
(C) the resulting amount is excluded from allocation.
Example 1. If the parties are separated, but not divorced, and Husband pays $200 per month toward the cost of a health insurance policy provided through his employer which covers himself, Wife, the parties' child, and two additional children from a previous marriage, the portion of the premium attributable to the additional two children, if not otherwise verifiable or known with reasonable ease and certainty, is calculated by dividing $200 by five persons and then multiplying the resulting amount of $40 per person by the two additional children, for a total of $80 to be excluded from allocation. Deduct this amount from the total cost of the premium to arrive at the portion of the premium to be allocated between the parties—$120. Since Husband is paying the premium, and spouses have a statutory duty to support one another pursuant to 23 Pa.C.S. § 4321, Wife's percentage share of the $120 is deducted from Husband's support obligation. If Wife had been providing the coverage, then Husband's percentage share would be added to his basic support obligation.
* * * * * (c) Unreimbursed Medical Expenses. [Unreimbursed] The trier-of-fact shall allocate the obligee's or children's unreimbursed medical expenses [of the obligee or the children shall be allocated between the parties in proportion to their respective net incomes. Notwithstanding the prior sentence, there shall be no apportionment of] However, the trier-of-fact shall not allocate unreimbursed medical expenses incurred by a party who is not owed a statutory duty of support by the other party. The [court] trier-of-fact may [direct] order that the obligor's expense share [be] is added to his or her basic support obligation, [or paid directly to the obligee or ] paid directly to the health care provider, or paid directly to the obligee.
* * * * * (4) If the trier of fact determines that out-of-network medical expenses were not obtained due to medical emergency or other compelling factors, the court may decline to assess any of such expenses against the other party.
[(5) In cases involving only spousal support or alimony pendente lite, the parties' respective net incomes for purposes of allocating unreimbursed medical expenses shall be calculated after the amount of spousal support or alimony pendente lite is deducted from the obligor's income and added to the obligee's income.]
Official Note: If the trier of fact determines that the obligee acted reasonably in obtaining services which were not specifically set forth in the order of support, payment for such services may be ordered retroactively.
(d) Private School Tuition. Summer Camp. Other Needs. Expenditures for needs outside the scope of typical child-rearing expenses, e.g., private school tuition, summer camps, have not been factored into the Basic Child Support Schedule.
(1) If a party incurs an expense for a need not factored into the Basic Child Support Schedule and the [court] trier-of-fact determines the need and expense are reasonable, the [court] trier-of-fact shall allocate the expense [between the parties in proportion to the parties' monthly net incomes]. The [court] trier-of-fact may order that the obligor's expense share is added to his or her basic support obligation, paid directly to the service provider, or paid directly to the obligee.
* * * * * (e) Mortgage Payment. The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners' insurance. Similarly, the [court] trier-of-fact will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise.
(1) If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee's monthly net income (including amounts of spousal support, alimony [pendente lite] pendente lite, and child support), the [court] trier-of-fact may direct the obligor to assume up to 50% of the excess amount as part of the total support [award] amount.
(2) If the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor's monthly net income (less any amount of spousal support, alimony [pendente lite or] pendente lite, and child support the obligor is paying), the [court] trier-of-fact may [make an appropriate downward adjustment in] downwardly adjust the obligor's support [obligation] amount.
(3) This rule shall not be applied after a final resolution of [all] the outstanding economic claims in the parties' divorce action.
(4) For purposes of this subdivision, the term ''mortgage'' shall include first mortgages, real estate taxes, and homeowners' insurance and may include [any] subsequent mortgages, home equity loans, and [any] other marital obligations [incurred during the marriage which are] secured by the marital residence.
[Explanatory Comment—2004 Subdivision (a), relating to the federal child care tax credit, has been amended to reflect recent amendments to the Internal Revenue Code. 26 U.S.C.A. 21. By referring to the tax code in general, rather than incorporating current code provisions in the rule, any further amendments will be incorporated into the support calculation.
Explanatory Comment—2005 Rule 1910.16-6 governs the treatment of additional expenses that warrant an adjustment to the basic support obligation.
Subdivision (a) relates to child care expenses. Subdivision (a) has been amended to require that child care expenses incurred by either party are to be allocated between the parties in proportion to their respective net incomes. Subsection (a)(1), relating to the federal child care tax credit, was amended in 2004 to reflect recent amendments to the Internal Revenue Code. 26 U.S.C.A. § 21. By referring to the tax code in general, rather than incorporating current code provisions in the rule, any further amendments will be incorporated into the support calculation. Since the tax credit may be taken only against taxes owed, it cannot be used when the eligible parent does not incur sufficient tax liability to fully realize the credit. For this reason, subsection (2) provides that no adjustment to the total child care expenses may be made if the eligible parent does not qualify to receive the credit.
Subdivision (b) addresses health insurance premiums. The cost of the premiums is generally treated as an additional expense to be allocated between the parties in proportion to their net incomes. Subsection (1) of the rule permits allocation of the entire premium, including the portion of the premium covering the party carrying the insurance, when the insurance benefits the other party and/or the children. Subsection (2) clarifies that, in calculating the amount of the health care premium to be allocated between the parties, subdivision (b)(1) requires the inclusion of that portion of the health insurance premium covering the party who is paying the premium, so long as there is a statutory duty of support owed to that party, but not the portion of the premium attributable to non-parties and children who are not the subjects of the support order. Subsection (2) provides for proration of the premium when the health insurance covers other persons who are not subject to the support action or owed a statutory duty of support. Subdivision (b) also permits an alternative method for dealing with the cost of health insurance premiums in certain circumstances. While, in general, the cost of the premiums will be treated as an additional expense to be allocated between the parties in proportion to their net incomes, in cases in which the obligee has no income or minimal income, subsection (4) authorizes the trier of fact to reduce the obligor's gross income for support purposes by some or all of the amount of the health insurance premiums. This is to avoid the result under a prior rule in which the entire cost of health insurance would have been borne by the obligor, with no resulting reduction in the amount of support he or she would otherwise be required to pay under the support guidelines. The goal of this provision is to encourage and facilitate the maintenance of health insurance coverage for dependents by giving the obligor a financial incentive to maintain health insurance coverage.
Subdivision (c) deals with unreimbursed medical expenses. Since the first $250 of medical expenses per year per child is built into the basic guideline amount in the child support schedule, only medical expenses in excess of $250 per year per child are subject to allocation under this rule as an additional expense to be added to the basic support obligation. The same is true with respect to spousal support so that the obligee-spouse is expected to assume the first $250 per year of these expenses and may seek contribution under this rule only for unreimbursed expenses which exceed $250 per year. The definition of ''medical expenses'' includes insurance co-payments, deductibles and orthodontia and excludes chiropractic services.
Subdivision (d) governs apportionment of private school tuition, summer camp and other unusual needs not reflected in the basic guideline amounts of support. The rule presumes allocation in proportion to the parties' net incomes consistent with the treatment of the other additional expenses.
Subdivision (e) provides for the apportionment of mortgage expenses. It defines ''mortgage'' to include the real estate taxes and homeowners' insurance. While real estate taxes and homeowners' insurance must be included if the trier of fact applies the provisions of this subdivision, the inclusion of second mortgages, home equity loans and other obligations secured by the marital residence is within the discretion of the trier of fact based upon the circumstances of the case.
Explanatory Comment—2006 A new introductory sentence in Rule 1910.16-6 clarifies that additional expenses contemplated in the rule may be allocated between the parties even if the parties' respective incomes do not warrant an award of basic support. Thus, even if application of the formula at Rule 1910.16-4 results in a basic support obligation of zero, the court may enter a support order allocating between the parties any or all of the additional expenses addressed in this rule.
The amendment to subdivision (e) recognizes that the obligor may be occupying the marital residence and that, in particular circumstances, justice and fairness may warrant an adjustment in his or her support obligation.
Explanatory Comment—2008 Federal and state statutes require clarification to subdivision (b) to ensure that all court orders for support address the children's ongoing need for medical care. In those instances where the children's health care needs are paid by the state's medical assistance program, and eligibility for the Children's Health Insurance Program (''CHIP'') is denied due to the minimal income of the custodial parent, the obligor remains required to enroll the parties' children in health insurance that is, or may become, available that is reasonable in cost.
Government-sponsored health care plans represent a viable alternative to the often prohibitive cost of health insurance obtainable by a parent. Except for very low income children, every child is eligible for CHIP, for which the parent with primary physical custody must apply and which is based on that parent's income. A custodial parent may apply for CHIP by telephone or on the Internet. While co-premiums or co-pays increase as the custodial parent's income increases, such costs are generally modest and should be apportioned between the parties. Moreover, health care coverage obtained by the custodial parent generally yields more practical results, as the custodial parent resides in the geographic coverage area, enrollment cards are issued directly to the custodial parent, and claims may be submitted directly by the custodial parent.
Explanatory Comment—2010 Subdivision (e), relating to mortgages on the marital residence, has been amended to clarify that the rule cannot be applied after a final order of equitable distribution has been entered. To the extent that Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003), holds otherwise, it is superseded. At the time of resolution of the parties' economic claims, the former marital residence will either have been awarded to one of the parties or otherwise addressed.]
Explanatory Comment—2004 Subdivision (a), relating to the federal child care tax credit, has been amended to reflect recent amendments to the Internal Revenue Code, 26 U.S.C. § 21. By generally referencing the Tax Code, rather than incorporating current Code provisions in the rule, further amendments will be incorporated into the support calculation.
Explanatory Comment—2005 Pa.R.C.P. No. 1910.16-6 governs the treatment of additional expenses that warrant an adjustment to the basic support obligation.
Subdivision (a) relates to child care expenses. Subdivision (a) has been amended to require that child care expenses incurred by either party are to be allocated between the parties in proportion to their respective net incomes. Subsection (a)(1), relating to the federal child care tax credit, was amended in 2004 to reflect recent amendments to the Internal Revenue Code. 26 U.S.C. § 21. By referring to the Tax Code in general, rather than incorporating current Code provisions in the rule, any further amendments will be incorporated into the support calculation. Since the tax credit may be taken only against taxes owed, it cannot be used when the eligible parent does not incur sufficient tax liability to fully realize the credit. For this reason, subsection (2) provides that no adjustment to the total child care expenses may be made if the eligible parent does not qualify to receive the credit.
Subdivision (b) addresses health insurance premiums. The cost of the premiums is generally treated as an additional expense to be allocated between the parties in proportion to their net incomes. Subdivision (b)(1) of the rule permits allocation of the entire premium, including the portion of the premium covering the party carrying the insurance, when the insurance benefits the other party and/or the children. Subdivision (b)(2) clarifies that, in calculating the amount of the health care premium to be allocated between the parties, subdivision (b)(1) requires the inclusion of that portion of the health insurance premium covering the party who is paying the premium, so long as there is a statutory duty of support owed to that party, but not the portion of the premium attributable to non-parties and children who are not the subjects of the support order. Subdivision (b)(2) provides for proration of the premium when the health insurance covers other persons who are not subject to the support action or owed a statutory duty of support. Subdivision (b) also permits an alternative method for dealing with the cost of health insurance premiums in certain circumstances. While, in general, the cost of the premiums will be treated as an additional expense to be allocated between the parties in proportion to their net incomes, in cases in which the obligee has no income or minimal income, subsection (4) authorizes the trier-of-fact to reduce the obligor's gross income for support purposes by some or all of the amount of the health insurance premiums. This is to avoid the result under a prior rule in which the entire cost of health insurance would have been borne by the obligor, with no resulting reduction in the amount of support he or she would otherwise be required to pay under the support guidelines. The goal of this provision is to encourage and facilitate the maintenance of health insurance coverage for dependents by giving the obligor a financial incentive to maintain health insurance coverage.
Subdivision (c) deals with unreimbursed medical expenses. Since the first $250 of medical expenses per year per child is built into the basic guideline amount in the child support schedule, only medical expenses in excess of $250 per year per child are subject to allocation under this rule as an additional expense to be added to the basic support obligation. The same is true with respect to spousal support so that the obligee-spouse is expected to assume the first $250 per year of these expenses and may seek contribution under this rule only for unreimbursed expenses which exceed $250 per year. The definition of ''medical expenses'' includes insurance co-payments, deductibles and orthodontia and excludes chiropractic services.
Subdivision (d) governs apportionment of private school tuition, summer camp and other unusual needs not reflected in the basic guideline amounts of support. The rule presumes allocation in proportion to the parties' net incomes consistent with the treatment of the other additional expenses.
Subdivision (e) provides for the apportionment of mortgage expenses. It defines ''mortgage'' to include the real estate taxes and homeowners' insurance. While real estate taxes and homeowners' insurance must be included if the trier-of-fact applies the provisions of this subdivision, the inclusion of second mortgages, home equity loans and other obligations secured by the marital residence is within the trier-of-fact's discretion based upon the circumstances of the case.
Explanatory Comment—2006 A new introductory sentence in Pa.R.C.P. No. 1910.16-6 clarifies that additional expenses contemplated in the rule may be allocated between the parties even if the parties' respective incomes do not warrant an award of basic support. Thus, even if application of either formula Pa.R.C.P. No. 1910.16-4 results in a basic support obligation of zero, the trier-of-fact may enter a support order allocating between the parties any or all of the additional expenses addressed in this rule.
The amendment of subdivision (e) recognizes that the obligor may be occupying the marital residence and that, in particular circumstances, justice and fairness may warrant an adjustment in his or her support obligation.
Explanatory Comment—2008 Federal and state statutes require clarification to subdivision (b) to ensure that all court orders for support address the children's ongoing need for medical care. In those instances where the children's health care needs are paid by the state's medical assistance program, and eligibility for the Children's Health Insurance Program (''CHIP'') is denied due to the minimal income of the custodial parent, the obligor remains required to enroll the parties' children in health insurance that is, or may become, available that is reasonable in cost.
Government-sponsored health care plans represent a viable alternative to the often prohibitive cost of health insurance obtainable by a parent. Except for very low income children, every child is eligible for CHIP, for which the parent with primary physical custody must apply and which is based on that parent's income. A custodial parent may apply for CHIP by telephone or on the Internet. While co-premiums or co-pays increase as the custodial parent's income increases, such costs are generally modest and should be apportioned between the parties. Moreover, health care coverage obtained by the custodial parent generally yields more practical results, as the custodial parent resides in the geographic coverage area, enrollment cards are issued directly to the custodial parent, and claims may be submitted directly by the custodial parent.
Explanatory Comment—2010 Subdivision (e), relating to mortgages on the marital residence, has been amended to clarify that the rule cannot be applied after a final order of equitable distribution has been entered. To the extent that Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003), holds otherwise, it is superseded. At the time of resolution of the parties' economic claims, the former marital residence will either have been awarded to one of the parties or otherwise addressed.
Explanatory Comment—2018 The amendments provide for an adjustment to the parties' monthly net incomes prior to determining the percentage each party pays toward the expenses set forth in Pa.R.C.P. No. 1910.16-6. Previously, the Rules of Civil Procedure apportioned the enumerated expenses in Pa.R.C.P. No. 1910.16-6(a)—(d), with the exception of subdivision (c)(5), between the parties based on the parties' respective monthly net incomes as calculated pursuant to Pa.R.C.P. No. 1910.16-2. This apportionment did not consider the amount of support paid by the obligor or received by the obligee.
The amended rule adjusts the parties' monthly net incomes, upward or downward, by the spousal support/APL amount paid or received by that party prior to apportioning the expenses. This methodology is not new to the Rules of Civil Procedure. In Pa.R.C.P. No. 1910.16-6(c)(5)(rescinded), the parties' monthly net incomes in spousal support/APL-only cases were similarly adjusted prior to the apportionment of unreimbursed medical expenses. Likewise, Pa.R.C.P. No. 1910.16-6(e) considers the parties' monthly net income after the receipt or payment of the support obligation for purposes of determining a mortgage deviation. As the new procedure adopts the methodology in former subdivision (c)(5), that subdivision has been rescinded as delineating the spousal support only circumstance is unnecessary.
Lastly, the amendment consolidates Pa.R.C.P. No. 1910.16-6(b)(1), (2), and (2.1).
Rule 1910.18. Support Order. Subsequent Proceedings. Modification of Spousal Support or Alimony Pendente Lite Orders Entered Before January 1, 2019.
(a) Subsequent support order modification or termination proceedings [to modify or terminate a support order pursuant to Rule] pursuant to Pa.R.C.P. No. 1910.19 shall be brought in the court [which] that entered the order. If the action has been transferred pursuant to [Rule] Pa.R.C.P. No. 1910.2 following the entry of a support order, subsequent proceedings shall be brought in the court to which the action was transferred.
(b) Subsequent support order enforcement proceedings [to enforce an order pursuant to Rule] pursuant to Pa.R.C.P. No. 1910.20 may be brought in the court [which] that entered the support order or the court [of a county] to which the order has been transferred.
(c) Subdivision (a) shall not limit the plaintiff's right [of the plaintiff] to institute additional support proceedings [for support] in [any] a county of proper venue.
(d) Unless a modification provides that the Internal Revenue Code, as amended by the Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97), expressly applies, an order entered before January 1, 2019 that includes spousal support or alimony pendente lite is governed by the Pa.R.C.P. No. 1910.16-4(a)(2)(Part IV) formula.
Official Note: See Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV), as relevant.
Rule 1910.19. Support. Modification. Termination. Guidelines as Substantial Change in Circumstances. Overpayments.
* * * * * (c) Pursuant to a petition for modification, the [trier of fact] trier-of-fact may modify or terminate the existing support order in any appropriate manner based [upon] on the evidence presented without regard to which party filed the petition for modification. If the [trier of fact] trier-of-fact finds that there has been a material and substantial change in circumstances, the order may be increased or decreased [depending upon] based on the parties' respective monthly net incomes [of the parties], consistent with the support guidelines [and], existing law, and Pa.R.C.P. No. 1910.18(d), and [each] the party's custodial time with the child at the time the modification petition is heard.
* * * * * (g) Overpayments.
* * * * * (2) Order Terminated. If there is an overpayment in any amount and there is no charging order in effect, within one year of the termination of the charging order, the former obligor may file a petition with the domestic relations section seeking recovery of the overpayment. A copy shall be served upon the former obligee as original process. The domestic relations section shall schedule a conference on the petition, which shall be conducted consistent with the rules governing support actions. The domestic relations section shall have the authority to enter an order against the former obligee for the amount of the overpayment in a monthly amount to be determined by the trier of fact after consideration of the former obligee's ability to pay.
(h) Modification of a Support Order with Child Support and Spousal Support or Child Support and Alimony Pendente Lite Entered Before January 1, 2019.
(1) In a subsequent modification proceeding of an order awarding child support and spousal support or child support and alimony pendente lite, as provided in Pa.R.C.P. No. 1910.18(d), the trier-of-fact may on its own motion or upon the motion of a party:
(i) make an unallocated award in favor of the spouse and one or more children; or
(ii) state the support amount allocable to the spouse and to each child.
(2) The trier-of-fact shall clearly state whether the order is allocated or unallocated even if the child support and spousal support or child support and alimony pendente lite amounts are delineated in the order.
(i) If the order is allocated, the Pa.R.C.P. No. 1910-16.4(a)(2)(Part IV) formula determines the spousal support amount.
(A) As the formula assumes an unallocated order, if the order's allocation utilizing the formula is inequitable, the trier-of-fact may adjust the order, as appropriate.
(B) In making an adjustment, the trier-of-fact shall consider the federal income tax consequences.
(C) If the parties are in higher income brackets, the income tax considerations are likely to be a more significant factor in determining a support amount.
(ii) If the order is unallocated or the order is for spousal support or alimony pendente lite only, the trier-of-fact shall not consider the federal income tax consequences.
Official Note: See 23 Pa.C.S. § 4348(d) for additional matters that must be specified in a support order if arrearages exist when the order is entered.
(3) A support award for a spouse and children is taxable to the obligee while an award for the children only is not. Consequently, in certain situations, an award only for the children will be more favorable to the obligee than an award to the spouse and children. In this situation, the trier-of-fact should utilize the method that provides the greatest benefit to the obligee.
(4) If the obligee's monthly net income is equal to or greater than the obligor's monthly net income, the guideline amount for spouse and children is identical to the guideline amount for children only. Therefore, in cases involving support for spouse and children, whenever the obligee's monthly net income is equal to or greater than the obligor's monthly net income, the guideline amount indicated shall be attributed to child support only.
(5) Unallocated child support and spousal support or child support and alimony pendente lite orders shall terminate upon the obligee's death.
(6) In the event that the obligor defaults on an unallocated order, the trier-of-fact shall allocate the order for child support collection pursuant to the Internal Revenue Service income tax refund intercept program or for registration and enforcement of the order in another jurisdiction under the Uniform Interstate Family Support Act, 23 Pa.C.S. §§ 7101—7903. The trier-of-fact shall provide the parties with notice of allocation.
Official Note: This provision is necessary to comply with various state and federal laws relating to child support enforcement. It is not intended to affect an unallocated order's tax consequences.
(7) An unallocated child support and spousal support or child support and alimony pendente lite order is a final order as to the claims covered in the order.
(8) Motions for post-trial relief cannot be filed to the final order.
Official Note: The procedure relating to Motions for Reconsideration is set forth in Pa.R.C.P. No. 1930.2.
Subdivision (h) incorporates Pa.R.C.P. No. 1910.16 (rescinded) and Pa.R.C.P. No. 1910.16-4(f)(rescinded) for subsequent modification proceedings due to the enactment of the Tax Cuts and Jobs Act of 2017 (Pub.L. No. 115-97).
* * * * *
[Pa.B. Doc. No. 19-39. Filed for public inspection January 11, 2019, 9:00 a.m.]
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