Deviation from Child Support Guidelines

Deviation from Child Support Guidelines

Under Maryland law the amount of child support to be paid in an action to establish child support is based on the child support guidelines contained in Section 12-202 of the Family Law Article of the Maryland Code. These guidelines are based on what has become known as the "incomes shared" method of calculating child support, in which the parents pay a percentage of the support for their child based on their percentage of the household income. A table is contained in the statute which shows how much a child needs based on the combined income of his or her parent, and this amount is then multiplied by the percentage of income each parent earns. The calculations can be done by accessing the following website: http://www.dhr.state.md.us/csea/index.php

There are other factors, including the cost of health insurance, the cost of child care which is required so that a parent can work, extraordinary medical expenses (defined as over $100 per incident), private school, any alimony awarded, and child support previously ordered for another child. Once all these factors are determined and inserted in the guideline worksheet, a child support payment can be calculated.

An issue frequently arises when a parent (or both parents) want to deviate from the guidelines. Section 12-202 states that a deviation can be made where use of the guidelines would be unjust or inappropriate, defined by the statute as follows::

(iii) In determining whether the application of the guidelines would be unjust or inappropriate in a particular case, the court may consider:

1. the terms of any existing separation or property settlement agreement or court order, including any provisions for payment of mortgages or marital debts, payment of college education expenses, the terms of any use and possession order or right to occupy the family home under an agreement, any direct payments made for the benefit of the children required by agreement or order, or any other financial considerations set out in an existing separation or property settlement agreement or court order; and

2. the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing.

(iv) The presumption may not be rebutted solely on the basis of evidence of the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing.

(v) 1. If the court determines that the application of the guidelines would be unjust or inappropriate in a particular case, the court shall make a written finding or specific finding on the record stating the reasons for departing from the guidelines.

2. The court's finding shall state:

A. the amount of child support that would have been required under the guidelines;

B. how the order varies from the guidelines;

C. how the finding serves the best interests of the child; and

D. in cases in which items of value are conveyed instead of a portion of the support presumed under the guidelines, the estimated value of the items conveyed.

What this means is that the court needs a statement from the parties as to why the guidelines should be deviated from. This is usually inserted in the guideline worksheet when the parties agree, and the Master or Judge who hears the case needs to approve the deviation. For example, the parties may agree to go from $750/month to $600/month because the payor needs a reduction to pay the costs of transportation to and from visitation with the child. This is reasonable, and is usually accepted by the court. However, if the deviation is from $750/month to $250/month, and the reason given is that the parents agree to deviate because the payor makes too little money to afford the guildelines, the court will probably reject the agreement and require a hearing to determine if the guidelines should apply. So you need to be careful in deciding what to tell the court about why the deviation is being sought, and not seek too great a deviat ion.

If the parties do not agree, you need to make an argument to the court to establish why it should find that application of the guidelines is unjust or inappropriate. While any argument can be made, ones that are likely to succeed are ones that follow the reasons set forth in Section 12-202; namely, provisions in a separation agreement regarding direct payments for a child such as the mortgage, college, car insurance, etc. I have seen cases where a father is required to pay over half of his income for child support and it leaves him less than $600/month to live on. In these cases a Master or Judge is likely to award a deviation because that parent can't live on so little income. I have also seen deviations awarded where a child is out of state and the parent needs a deviation so that he can afford to travel to and from the child's home to visit.

However, before going to court on a case where you are seeking a deviation, you would be well advised to consult an attorney to either assist you in preparing the proper paperwork or in assessing your chances of success and assisting you at trial. Maryland courts take these guidelines very seriously, and any deviation must be established by evidence at trial or it will not be accepted.