Legal Question in Family Law in Pennsylvania

Iam divorced for three years had a prenub if I sell my house is my ex wife entittled to more in child support ?

Asked on 9/11/13, 2:45 pm

1 Answer from Attorneys

Pre-nuptial agreements have nothing to do with child support. They involve the right to alimony/spousal support and division of marital property if there is a divorce. Regardless of what is any marital settlement agreement, a parent cannot bargain away a child's right to receive support. Both parents have an obligation to support their child consistent with the guidelines.

Child support is not evaluated in a vacuum; child support is based on both the mother's and father's incomes. Why would the mother be entitled to more in child support just because you sold your home? When you sell a house, you are exchanging one type of asset (a house) for another type of asset (money). You will need somewhere to live so I assume you would get another house and would then be exchanging one house for another. If you don't and just stick it in the bank, the money would be taxed under the capital gains exception if you turn a profit. If the money is then invested, any investment income you derive might be factored into the child support. But just selling your house by itself should not count unless you will be getting a lump sum of money.

Below is the child support rule assuming that the child support order is in PA. While the rule is broad enough to cover the sale of your home, I still think you would need to make a tidy sum of profit and not re-invest in another home to make a child support modification significantly worthwhile. However, you should consult with a local family law attorney to confirm.

Rule 1910.16-2. Support Guidelines. Calculation of Net Income.

Generally, the amount of support to be awarded is based upon the partiesí monthly net income.

(a) Monthly Gross Income. Monthly gross income is ordinarily based upon at least a six-month average of all of a partyís income. The term ĎĎincomeíí is defined by the support law, 23 Pa.C.S.A. ß 4302, and includes income from any source. The statute lists many types of income including, but not limited to:

(1) wages, salaries, bonuses, fees and commissions;

(2) net income from business or dealings in property;

(3) interest, rents, royalties, and dividends;

(4) pensions and all forms of retirement;

(5) income from an interest in an estate or trust;

(6) Social Security disability benefits, Social Security retirement benefits, temporary and permanent disability benefits, workersí compensation and unemployment compensation;

(7) alimony if, in the discretion of the trier of fact, inclusion of part or all of it is appropriate; and

Official Note

Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipientís gross income must also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing obligeeís college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligeeís general living expenses, inclusion of the alimony as income is appropriate.

(8) other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and any form of payment due to and collectible by an individual regardless of source.

Official Note

The trial court has discretion to determine the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the partyís support obligation. These awards may be annualized or they may be averaged over a shorter or longer period of time depending on the circumstances of the case. They may also be escrowed in an amount sufficient to secure the support obligation during that period of time.

Income tax refunds should not be included as income to the extent they were already factored into the partyís actual tax obligation for purposes of arriving at his or her net income.

(b) Treatment of Public Assistance, SSI Benefits, Social Security Payments to a Child Due to a Parentís Death, Disability or Retirement and Foster Care Payments.

(1) Public Assistance and SSI Benefits. Neither public assistance nor Supplemental Security Income (SSI) benefits shall be counted as income for purposes of determining support.

(2) Social Security Payments for a Child. If a child for whom support is sought is receiving Social Security benefits as a result of a parentís retirement, death or disability, the benefits the child receives shall be added to the combined monthly net incomes of the obligor and the obligee to calculate the income available for support on the vertical axis of the basic child support schedule set forth in Rule 1910.16-3. The presumptive amount of support as set forth on the schedule at the combined income of the obligee, obligor and childís benefits shall then be reduced by the amount of the childís benefits before apportioning the remaining support obligation between the parties pursuant to Rule 1910.16-4. This calculation presumes that the primary custodial parent, or the shared custodial parent who is the obligee, is receiving the childís benefits. In cases in which the obligor is receiving the childís benefits, the amount of the childís benefit shall be added to the obligorís income and support shall be calculated as in any other case without deduction of the amount of the benefit from the presumptive amount of support set forth in the basic support schedule. For purposes of determining the support obligation of a surviving parent when the child is receiving benefits as the result of the other parentís death, the income of a non-parent obligee who is caring for a child but has no support obligation to that child shall include only those funds the obligee is receiving on behalf of the child.

(3) Foster Care Payments. If either party to a support action is a foster parent and/or is receiving payments from a public or private agency for the care of a child who is not his or her biological or adoptive child, those payments shall not be included in the income of the foster parent or other caretaker for purposes of calculating child support for the foster parentís or other caretakerís biological or adoptive child.

Example 1. If the obligor has net income of $1,200 per month; the obligee has net monthly income of $800; and the child receives Social Security derivative benefits of $300 per month as a result of either the obligorís or obligeeís retirement or disability, then the total combined monthly net income is $2,300. Using the schedule at Rule 1910.16-3 for one child, the amount of support is $543 per month. From that amount, subtract the amount the child is receiving in Social Security derivative benefits ($543 minus $300 equals $243). Then, apply the formula at Rule 1910.16-4 to apportion the remaining child support amount of $243 between the obligor and the obligee in proportion to their respective incomes. The obligorís $1,200 net income per month is 60% of the total of the obligorís and the obligeeís combined net monthly income. Thus, the obligorís support obligation would be 60% of $243, or $146, per month.

Example 2. Two children live with Grandmother who receives $400 per month in Social Security death benefits for the children as a result of their fatherís death. Grandmother also receives $500 per month from a trust established by Father for the benefit of the children. Grandmother is employed and earns $2,000 net per month. Grandmother seeks support from the childrenís mother, who earns $1,500 net per month. For purposes of calculating Motherís support obligation, Grandmotherís income will be $500, the amount she receives on behalf of the children from the trust. Therefore, the obligeeís and the obligorís combined net monthly incomes total $2,000. Add to that the $400 in Social Security benefits Grandmother receives for the children to find the basic child support amount in Rule 1910.16-3. The basic support amount at the $2,400 income level for two children is $815. Subtracting from that amount the $400 in Social Security derivative benefits Grandmother receives for the children, results in a basic support amount of $415. As Motherís income is 75% of the partiesí combined income of $2,000, her support obligation to Grandmother is $311 per month.

Official Note

Care must be taken to distinguish Social Security from Supplemental Security Income (SSI) benefits. Social Security benefits are income pursuant to subdivision (a) of this rule.

(c) Monthly Net Income.

(1) Unless otherwise provided in these rules, the court shall deduct only the following items from monthly gross income to arrive at net income:

(A) federal, state, and local income taxes;

(B) unemployment compensation taxes and Local Services Taxes (LST);

(C) F.I.C.A. payments (Social Security, Medicare and Self-Employment taxes) and non-voluntary retirement payments;

(D) mandatory union dues; and

(E) alimony paid to the other party.

(2) In computing a spousal support or alimony pendente lite obligation, the court shall deduct from the obligorís monthly net income all of his or her child support obligations and any amounts of spousal support, alimony pendente lite or alimony being paid to former spouses.

(d) Reduced or Fluctuating Income.

(1) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no effect on the support obligation.

(2) Involuntary Reduction of, and Fluctuations in, Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income, including but not limited to the result of illness, lay-off, termination, job elimination or some other employment situation over which the party has no control unless the trier of fact finds that such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.

(3) Seasonal Employees. Support orders for seasonal employees, such as construction workers, shall ordinarily be based upon a yearly average.

(4) Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the partyís earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position. Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.

(e) Net Income Affecting Application of the Support Guidelines.

(1) Low Income Cases.

(A) When the obligorís monthly net income and corresponding number of children fall into the shaded area of the schedule set forth in Rule 1910.16-3, the basic child support obligation shall first be calculated using the obligorís income only. For example, where the obligor has monthly net income of $1,100, the presumptive amount of support for three children is $156 per month. This amount is determined directly from the schedule in Rule 1910.16-3. Next, calculate the obligorís child support obligation as in any other case, using both partiesí monthly net incomes. The lower of the two calculations shall be the obligorís basic child support obligation.

Example: The parties have two children. The obligor has net monthly income of $1,500, which falls into the shaded area of the schedule for two children. Using only the obligorís income, the amount of support for two children would be $518. Next, calculate support using both partiesí incomes. The obligee has net monthly income of $2,500 so the combined net monthly income of the parties is $4,000. The basic shild support amount at that income level for two children is $1,240. As the obligorís income is 38% of the combined net monthly income of the parties, the obligorís share of the basic support amount is $471. As the amount of support the obligor would pay using the obligorís income alone is more than the amount calculated using both partiesí incomes, the lower amount would be awarded. Thus, the obligorís basic child support obligation is $471.

(B) In computing a basic spousal support or alimony pendente lite obligation, the presumptive amount of support shall not reduce the obligorís net income below the Self-Support Reserve of $931 per month. For example, if the obligor earns $1,000 per month and the obligee earns $300 per month, the formula in Part IV of Rule 1910.16-4 would result in a support obligation of $280 per month. Since this amount leaves the obligor with only $720 per month, it must be adjusted so that the obligor retains at least $931 per month. The presumptive minimum amount of spousal support, therefore, is $69 per month in this case.

(C) When the obligorís monthly net income is $931 or less, the court may award support only after consideration of the partiesí actual financial resources and living expenses.

(2) High Income Cases. When the partiesí combined net income exceeds $30,000 per month, calculation of child support, spousal support and alimony pendente lite shall be pursuant to Rule 1910.16-3.1.

(f) Dependency Tax Exemption. In order to maximize the total income available to the parties and children, the court may, as justice and fairness require, award the federal child dependency tax exemption to the non-custodial parent, or to either parent in cases of equally shared custody, and order the other party to execute the waiver required by the Internal Revenue Code, 26 U.S.C.A. ß 152(e). The tax consequences resulting from an award of the child dependency exemption must be considered in calculating each partyís income available for support.

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Answered on 9/12/13, 10:46 pm

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