 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
An Uncontested Divorce is where both parties are able to work
out an agreement as to all issues in the divorce including but not
limited to child custody, child support, child visitation, personal
property division, real property division, alimony etc. When these
issues are agreed on by the parties, documents are drafted, both
parties sign them in front of a notary and they are submitted to the
court with the court cost and no party is served by the sheriff or
other process server. Occasionally the other party may hire their
own attorney to represent them in working out an agreement.
Sometimes both parties will agree to go to mediation. Usually the
other party does not hire an attorney and signs a document that the
Plaintiff attorney prepares that informs the Defendant that they have
a right to hire an attorney and it is in their intrest to do so and they
wish to proceed without one.
A Contested Divorce is where one party (Plaintiff) has an attorney
draft documents and file them with the court and has the other party
(Defendant) served by the sheriff or other process server with notice
of the case by way of a summons. Occasionally the Plaintiff or
Defendant may need to file emergency motions for matters
concerning temporary custody,support,use of residence or vehicle.
The Defendant then would usually hire an attorney and that attorney
would file an answer to the complaint and attend any emergency
hearings. The judge would rule on any temporary emergency matters
generally and set a trial and pre-trial date. The attorneys would
generally file various motions to get information from the other party
commonly called Discovery motions. These motions can be in the
form of "Motions for Discovery, Interrogatories, Request for
production of documents, Depositions, Request for admissions etc" .
Generally after all the information is gathered through these motions
the attorneys may send offers to settle to each other. If the parties
are unable to settle the case at the pre-trial conference the judge will
set the case for trial and after the trial the judge will issue an order
concerning all issues in the divorce including but not limited to child
custody, child support, child visitation, personal property division,
real property division, alimony, retirement benefits etc. The judge
could also require the parties to attend mediation before having a
trial.
What is rule 32? (It is the court rule concerning child support)
This is the rule in Alabama concerning child support.
ALABAMA RULES OF JUDICIAL ADMINISTRATION
Rule 32. Child support guidelines.
Preface relating to scope. This rule, as amended effective October
4, 1993, shall apply to all new actions filed or proceedings instituted
on or after October 4, 1993. Any actions or proceedings instituted
before October 4, 1993, shall be governed by Rule 32 as it read
before October 4, 1993.
(A) Child support guidelines established. Guidelines for child support
are hereby established for use in any action to establish or modify
child support, whether temporary or permanent. There shall be a
rebuttable presumption, in any judicial or administrative proceeding
for the establishment or modification of child support, that the
amount of the award which would result from the application of
these guidelines is the correct amount of child support to be
awarded. A written finding on the record indicating that the
application of the guidelines would be unjust or inappropriate shall
be sufficient to rebut the presumption if the finding is based upon:
(i) A fair, written agreement between the parties establishing a
different amount and stating the reasons therefor; or
(ii) A determination by the court, based upon evidence presented in
court and stating the reasons therefor, that application of the
guidelines would be manifestly unjust or inequitable.
(1) Reasons for deviating from the guidelines. Reasons for deviating
from the guidelines may include, but are not limited to, the following:
(a) Shared physical custody or visitation rights providing for periods
of physical custody or care of children by the obligor parent
substantially in excess of those customarily approved or ordered by
the court;
(b) Extraordinary costs of transportation for purposes of visitation
borne substantially by one parent;
(c) Expenses of college education incurred prior to a child's reaching
the age of majority;
(d) Assets of, or unearned income received by or on behalf of, a
child or children; and
(e) Such other facts or circumstances that the court finds contribute
to the best interest of the child or children for whom support is being
determined.
The existence of one or more of the reasons enumerated in this
section does not require the court to deviate from the guidelines, but
such reason or reasons may be considered in deciding whether to
deviate from the guidelines. The court may deviate from the
guidelines even if no reason enumerated in this section exists, if
evidence of other reasons justifying deviation is presented.
(2) Stipulations. Stipulations presented to the court shall be reviewed
by the court before approval. No hearing shall be required;
however, the court shall use the guidelines in reviewing the adequacy
of child support orders negotiated by the parties and shall review
income statements that fully disclose the financial status of the
parties. The court, however, may accept from the parties and/or
their attorneys of record a Child Support Guidelines Notice of
Compliance that indicates compliance with this rule or, in the event
the child support guidelines have not been met, the reason for the
deviation therefrom. The form, content, and numbering scheme of
the Child Support Guidelines Notice of Compliance shall be
prescribed by the administrative director of courts (ADC). (See
Form CS-43 following this rule.)
(3) Modifications. The child support guidelines shall be used by the
parties as the basis for periodic updates of child support obligations.
(a) The provisions of any judgment respecting child support shall be
modified only as to installments accruing after the filing of the petition
for modification.
(b) There shall be a rebuttable presumption that child support should
be modified when the difference between the existing child support
award and the amount determined by application of these guidelines
varies more than ten percent (10%), unless the variation is due to the
fact that the existing child support award resulted from a rebuttal of
the guidelines and there has been no change in the circumstances that
resulted in the rebuttal of the guidelines.
(4) Health care needs. All orders establishing or modifying child
support shall, at a minimum, provide for the children's health care
needs through health insurance coverage or other means. Normally,
health insurance covering the children should be required if it is
available to either parent through his or her employment or pursuant
to any other group plan at a reasonable cost.
(B) Definitions.
(1) Income. For purposes of the guidelines established by this rule,
"income" means actual gross income of a parent, if the parent is
employed to full capacity, or the actual gross income the parent has
the ability to earn if the parent is unemployed or underemployed.
(2) Gross income.
(a) "Gross income" includes income from any source, and includes,
but is not limited to, salaries, wages, commissions, bonuses,
dividends, severance pay, pensions, interest, trusts, annuities, capital
gains, Social Security benefits, workers' compensation benefits,
unemployment insurance benefits, disability insurance benefits, gifts,
prizes, and preexisting periodic alimony.
(b) "Gross income" does not include child support received for other
children or benefits received from means-tested public assistance
programs, including, but not limited to, Aid to Families with
Dependent Children, Supplemental Security Income, food stamps,
and general assistance.
(3) Self-employment income.
(a) For income from self-employment, rent, royalties, proprietorship
of business, or joint ownership of a partnership or closely held
corporation, "gross income" means gross receipts minus ordinary
and necessary expenses required to produce such income, as
allowed by the Internal Revenue Service, with the exceptions noted
in section (B)(3)(b).
(b) "Ordinary and necessary expenses" does not include amounts
allowable by the Internal Revenue Service for the accelerated
component of depreciation expenses, investment tax credits, or any
other business expenses determined by the court to be inappropriate
for determining gross income for purposes of calculating child
support.
(4) Other income. Expense reimbursements or in-kind payments
received by a parent in the course of employment, self-employment,
or operation of a business shall be counted as income if they are
significant and reduce personal living expenses.
(5) Unemployment; underemployment. If the court finds that either
parent is voluntarily unemployed or underemployed, it shall estimate
the income that parent would otherwise have and shall impute to that
parent that income; the court shall calculate child support based on
that parent's imputed income. In determining the amount of income
to be imputed to a parent who is unemployed or underemployed, the
court should determine the employment potential and probable
earning level of that parent, based on that parent's recent work
history, education, and occupational qualifications, and on the
prevailing job opportunities and earning levels in the community. The
court may, in its discretion, take into account the presence of a
young or physically or mentally disabled child necessitating the
parent's need to stay in the home and therefore the inability to work.
(6) Preexisting child support obligation. The amount of child support
actually being paid by a parent pursuant to an order for support of
other children shall be deducted from that parent's "gross income." If
a parent is legally responsible for and is actually providing support
for other children, but not pursuant to an order of support, a
deduction for an "imputed preexisting child support obligation" may
be made from that parent's gross income. The imputed preexisting
child support obligation shall be that amount specified in the schedule
of basic child support obligations based on that parent's unadjusted
gross income and the number of other children for whom that parent
is legally responsible. "Other children" means children who are not
the subject of the particular child support determination being made.
If the proceeding is one to modify an existing award of support, no
deduction should be made for other children born or adopted after
the initial award of support was entered, except for support paid
pursuant to another order of support.
(7) Health insurance premiums.
(a) The actual cost of a premium to provide health insurance benefits
for the children shall be added to the "basic child support obligation"
and shall be divided between the parents in proportion to their
adjusted gross income in the percentages indicated on the Child
Support Guidelines form (Form CS-42).
(b) The amount to be added to the "basic child support obligation"
shall be the actual amount of the total insurance premium for
family/dependent coverage, regardless of whether all children
covered are in the same family.
(c) After the "total child support obligation" is calculated and divided
between the parents in proportion to their "monthly adjusted gross
income," the amount added pursuant to subsection (b) shall be
deducted from the obligor's share of the total child support
obligation, provided the obligor actually pays said premium. If the
obligee is actually paying the premium, no further adjustment is
necessary.
(d) If, at any time while a child support order providing for an
insurance adjustment is in effect, such insurance coverage is allowed
to lapse, is terminated, or otherwise no longer covers the children for
whose benefit the order was issued, the court (i) may find the
amount deducted from the obligor's child support obligation therefor
to be an arrearage in the obligor's total child support obligation; (ii)
may find the obligor liable for medical expenses that would
otherwise have been covered under the insurance; and/or (iii) enter
such other order as it shall deem appropriate.
(8) Child care costs. Child care costs, incurred on behalf of the
children because of employment or job search of either parent, shall
be added to the "basic child support obligation." Child care costs
shall not exceed the amount required to provide care from a licensed
source for the children, based on a schedule of guidelines developed
by the Department of Human Resources. Before the Department of
Human Resources implements any revision to the schedule of child
care cost guidelines, it shall provide the ADC a copy of the revised
schedule. The ADC shall, as soon as reasonably practicable
thereafter, disseminate the revised schedule to all judges, all circuit,
district, and juvenile court clerks and registers, and the Family Law
Section of the Alabama State Bar. The clerk or register shall
maintain the current schedule in his/her office, shall make it available
for review, and shall provide copies of it on request, at the
customary cost for copies of documents.
(9) Split custody. In those situations where each parent has primary
physical custody of one or more children, support shall be computed
in the following manner:
(a) Compute the support the father would owe to the mother for the
children in her custody as if they were the only children of the two
parties; then
(b) Compute the support the mother would owe to the father for the
children in his custody as if they were the only children of the two
parties; then
(c) Subtract the lesser support obligation from the greater. The
parent who owes the greater obligation should be ordered to pay the
difference in support to the other parent, unless the court determines,
pursuant to other provisions of this rule, that it should deviate from
the guidelines.
(C) Determination of recommended child support obligation.
(1) Basic child support obligation. The basic child support obligation
shall be determined by using the schedule of basic child support
obligations.
The category entitled "combined gross income" in the schedule
means the combined monthly adjusted gross incomes of both
parents. "Adjusted gross income" means gross income less
preexisting child support obligations and less preexisting periodic
alimony actually paid by a parent to a former spouse. For combined
gross income amounts falling between amounts shown in the
schedule, the lower value shall be used if the combined gross income
falls less than halfway between the amounts shown in the schedule.
Where the combined gross income falls halfway or more than
halfway between two amounts, the higher value shall be used. The
category entitled "number of children due support" in the schedule
means children for whom the parents share joint legal responsibility
and for whom support is being sought. The court may use its
discretion in determining child support in circumstances where
combined adjusted gross income is below the lowermost levels or
exceeds the uppermost levels of the schedule.
(2) Computation of child support. A total child support obligation is
determined by adding the basic child support obligation,
work-related child care costs, and health insurance costs. The total
child support obligation shall be divided between the parents in
proportion to their adjusted gross incomes. The obligation of each
parent is computed by multiplying the total child support obligation
by each parent's percentage share of their combined adjusted gross
income. The custodial parent shall be presumed to spend his or her
share directly on the child.
(3) Rounding. All dollar amounts used in child support calculations
under this rule, including the recommended child support order, may
be rounded to the nearest dollar, and all percentages may be
rounded to the nearest one percent.
(4) Additional awards for child support. In addition to the
recommended child support order, the court may make additional
awards for extraordinary medical, dental, and educational expenses
if (i) the parties have in writing agreed to such awards or (ii) the
court, upon reviewing the evidence, determines that such awards are
in the best interest of the children and states its reasons for making
such additional awards.
(D) Schedule of basic child support obligations. A schedule of basic
child support obligations appears as an appendix to this Rule 32.
(E) Standardized child support guidelines form, child support
obligation income statement/affidavit form, and child support
guidelines notice of compliance form. A standardized Child Support
Guidelines form and a Child Support Obligation Income
Statement/Affidavit form shall be filed in each action to establish or
modify child support obligations and shall be of record and shall be
deemed to be incorporated by reference in the court's child support
order. In conformance to Section (A)(2) of this Rule, in stipulated
cases the court may accept the filing of a Child Support Guidelines
Notice of Compliance form. The form, content, and numbering
schemes of the Child Support Guidelines form, the Child Support
Obligation Income Statement/Affidavit form, and the Child Support
Guidelines Notice of Compliance form shall be prescribed by the
ADC.
(F) Income statements. Income statements of the parents shall be
verified with documentation of both current and past earnings.
Suitable documentation of current earnings includes pay stubs,
employer statements, or receipts and expenses if self-employed.
Documentation of current earnings shall be supplemented with
copies of the most recent tax return to provide verification of
earnings over a longer period or shall be supplemented with such
other documentation as the court directs. Intentional falsification of
information presented on the Child Support Obligation Income
Statement/Affidavit form shall be deemed contempt of court.
Documentation of earnings used in preparing the Child Support
Obligation Income Statement/Affidavit form shall be maintained by
the parties and made available as directed by the court.
(G) Review of child support guidelines. The ADC shall, at least once
every four years, review the child support guidelines and the
schedule of basic child support obligations, to ensure that their
application results in appropriate child support determinations. If the
ADC determines that no change is required in the guidelines or in the
schedule, the ADC shall so advise the Supreme Court.
HISTORY: (Amended 9-28-87, eff. 10-1-87; Amended 8-29-89,
eff. 10-9-89; Amended 8-24-93, eff. 10-4-93.)
Cross References -- Child custody and support, generally, @
30-3-1 et seq.
Comment As Amended to Conform to Amendments Effective
October 4, 1993
Rule 32 establishes guidelines as a rebuttable presumption for the
ordering of child support awards. These guidelines were adopted in
response to requirements set forth in the Child Support Enforcement
Amendments of 1984 (P.L. 98-378) and the Family Support Act of
1988 (P.L. 100-485). The guidelines will provide an adequate
standard support for children, subject to the ability of their parents to
pay, and will make awards more equitable by ensuring more
consistent treatment of persons in similar circumstances.
These guidelines are based on the income shares model developed
by the National Center for State Courts and are founded on the
premise that children should not be penalized as a result of the
dissolution of the family unit but should continue to receive the same
level of support that would have been available to them had the
family unit remained intact. Under the guidelines, attorneys for the
plaintiff and defendant will be required to submit a Child Support
Guidelines form and Child Support Obligation Income
Statement/Affidavit form in each action to establish or modify child
support. The Child Support Guidelines form will set forth the
combined income available to the family unit, the basic child support
obligation as determined from the Schedule of Basic Child Support
Obligations (Appendix to Rule 32), and adjustments to the basic
obligation for work-related child care expenses and health insurance
premiums. A portion of the adjusted total child support obligation is
then ascribed to each parent based on his/her percentage share of
the combined family income. The Child Support Guidelines form sets
forth the recommended child support obligation for the noncustodial
parent, which includes an adjustment for the cost of the health
insurance premium if such a premium is paid by the noncustodial
parent. The guidelines assume that the custodial parent will directly
provide his/her proportionate share of support to the children. In
addition to the recommended child support obligation, the court may
make additional awards for extraordinary medical, dental, and
educational expenses if the court finds such awards to be in the
children's best interest or if the parents have agreed to such awards.
The Schedule of Basic Child Support Obligations was developed
through research sponsored by the National Center for State Courts
and is based on extensive economic research on the cost of
supporting children at various income levels. This schedule is based
on gross income and has been adjusted for Alabama's income
distribution relative to the U. S. income distribution. It also
incorporates the 1987 federal income tax provisions as well as the
withholding schedule for Alabama state income tax.
Other assumptions incorporated in the Schedule of Basic Child
Support Obligations include:
(1) Tax exemptions. The Schedule of Basic Child Support
Obligations assumes that the custodial parent will take the federal
and state income tax exemptions for the children in his or her
custody;
(2) Health care costs. In respect to health care costs, the Schedule
of Basic Child Support Obligations assumes unreimbursed medical
costs of $ 200 per family of four per year. These assumed costs
include medical expenses not covered or reimbursed by health
insurance or Medicaid or Medicare; and
(3) Visitation. The Schedule of Basic Child Support Obligations is
premised on the assumption that the noncustodial parent will
exercise customary visitation rights, including summer visitation. Any
abatement of child support because of extraordinary visitation should
be based on visitation in excess of customary visitation.
The schedule of basic child support obligations includes combined
gross incomes ranging from $ 550 to $ 10,000 a month. Rule
32(C)(1) provides that the court may use its discretion in
determining child support where the combined adjusted gross
income is below the lowermost levels or above the uppermost levels
of the schedule. To further the consistency of awards, a court may
wish to issue an order establishing minimum child support obligations
for combined adjusted gross incomes of less than $ 550. Where the
combined adjusted gross income exceeds the uppermost limit of the
schedule, the amount of child support should not be extrapolated
from the figures given in the schedule, but should be left to the
discretion of the court.
Rule 32(B)(8) provides an adjustment for work-related child care
costs, provided such costs do not exceed those on the schedule of
guidelines for licensed child care costs published by the Alabama
Department of Human Resources (DHR). The rule requires that
copies of the DHR schedule of guidelines for child care costs be
available through the office of the clerk or register of each court
where child support actions are filed. Copies of the schedule of
guidelines for child care costs should also be available in the county
offices of the Department of Human Resources.
The Alabama child support guidelines do not specifically address the
problem of establishing a support order in joint legal custody
situations. Such a situation may be considered by the court as a
reason for deviating from the guidelines in appropriate situations,
particularly if physical custody is jointly shared by the parents.
Shared physical custody, regardless of "legal custodial
arrangements," is an appropriate reason for deviation, Section
(A)(1)(a). "Shared physical custody" refers to that situation where
the physical placement is shared by the parents in such a manner as
to assure the child frequent and continuing contact and time with
both parents. Because of the infinite possibilities that exist in terms of
time spent with each parent and other considerations associated with
such custody, a determination of support is to be made on a
case-by-case basis and is left to the sound discretion of the trial
court, to be based on findings made at or after trial or upon a fair
written agreement of the parties. When a shared physical custody
situation results in a support award that deviates from the award that
would result from application of the guidelines, the trial court's order,
or the written agreement of the parties, must specify and explain the
reason for the deviation.
The guidelines also do not address the problem of subsequent
children or families. While no deduction may be made for children
born or adopted after an initial award of support, unless made
pursuant to another order of support or as otherwise provided in this
rule, a court may consider evidence of support provided by a party
for after-born or adopted children offered in an attempt to rebut the
guidelines' presumptions. See Loggins v. Houk, 595 So. 2d 488
(Ala. Civ. App. 1991).
The Schedule of Basic Child Support Obligations assumes that a
family of four will have approximately $ 200 in unreimbursed
medical expenses each year. In providing for the payment of
deductibles and/or other noncovered medical expenses by the
parties, it should be assumed that those expenses are in excess of
this amount. Courts and parties may wish to consider whether
noncovered medical and/or dental expenses should be allocated in
the same percentages as the health insurance premiums are allocated
pursuant to this rule and as entered on the Child Support Guidelines
form (Form CS-42).
When provisions for payment of a health insurance premium are
made as provided in Rule 32, the court, or the parties drafting an
agreement, should also consider requiring proof that the children
have been enrolled in the health insurance plan and proof of the
actual cost of dependent coverage. The court should, in its order of
child support, require the parent providing dependent insurance
coverage to submit annually proof of continued coverage to the
other parent, the court, or the designated child support enforcement
agency, and should further require provision of an identification card
or other evidence of insurance sufficient for the children to be
afforded benefits of such insurance coverage by service providers.
The Supreme Court's Advisory Committee on Child Support
Guidelines and Enforcement, which assisted in drafting this rule, has
recommended that child support obligations be determined before
the court considers spousal support or other obligations.
out an agreement as to all issues in the divorce including but not
limited to child custody, child support, child visitation, personal
property division, real property division, alimony etc. When these
issues are agreed on by the parties, documents are drafted, both
parties sign them in front of a notary and they are submitted to the
court with the court cost and no party is served by the sheriff or
other process server. Occasionally the other party may hire their
own attorney to represent them in working out an agreement.
Sometimes both parties will agree to go to mediation. Usually the
other party does not hire an attorney and signs a document that the
Plaintiff attorney prepares that informs the Defendant that they have
a right to hire an attorney and it is in their intrest to do so and they
wish to proceed without one.
A Contested Divorce is where one party (Plaintiff) has an attorney
draft documents and file them with the court and has the other party
(Defendant) served by the sheriff or other process server with notice
of the case by way of a summons. Occasionally the Plaintiff or
Defendant may need to file emergency motions for matters
concerning temporary custody,support,use of residence or vehicle.
The Defendant then would usually hire an attorney and that attorney
would file an answer to the complaint and attend any emergency
hearings. The judge would rule on any temporary emergency matters
generally and set a trial and pre-trial date. The attorneys would
generally file various motions to get information from the other party
commonly called Discovery motions. These motions can be in the
form of "Motions for Discovery, Interrogatories, Request for
production of documents, Depositions, Request for admissions etc" .
Generally after all the information is gathered through these motions
the attorneys may send offers to settle to each other. If the parties
are unable to settle the case at the pre-trial conference the judge will
set the case for trial and after the trial the judge will issue an order
concerning all issues in the divorce including but not limited to child
custody, child support, child visitation, personal property division,
real property division, alimony, retirement benefits etc. The judge
could also require the parties to attend mediation before having a
trial.
What is rule 32? (It is the court rule concerning child support)
This is the rule in Alabama concerning child support.
ALABAMA RULES OF JUDICIAL ADMINISTRATION
Rule 32. Child support guidelines.
Preface relating to scope. This rule, as amended effective October
4, 1993, shall apply to all new actions filed or proceedings instituted
on or after October 4, 1993. Any actions or proceedings instituted
before October 4, 1993, shall be governed by Rule 32 as it read
before October 4, 1993.
(A) Child support guidelines established. Guidelines for child support
are hereby established for use in any action to establish or modify
child support, whether temporary or permanent. There shall be a
rebuttable presumption, in any judicial or administrative proceeding
for the establishment or modification of child support, that the
amount of the award which would result from the application of
these guidelines is the correct amount of child support to be
awarded. A written finding on the record indicating that the
application of the guidelines would be unjust or inappropriate shall
be sufficient to rebut the presumption if the finding is based upon:
(i) A fair, written agreement between the parties establishing a
different amount and stating the reasons therefor; or
(ii) A determination by the court, based upon evidence presented in
court and stating the reasons therefor, that application of the
guidelines would be manifestly unjust or inequitable.
(1) Reasons for deviating from the guidelines. Reasons for deviating
from the guidelines may include, but are not limited to, the following:
(a) Shared physical custody or visitation rights providing for periods
of physical custody or care of children by the obligor parent
substantially in excess of those customarily approved or ordered by
the court;
(b) Extraordinary costs of transportation for purposes of visitation
borne substantially by one parent;
(c) Expenses of college education incurred prior to a child's reaching
the age of majority;
(d) Assets of, or unearned income received by or on behalf of, a
child or children; and
(e) Such other facts or circumstances that the court finds contribute
to the best interest of the child or children for whom support is being
determined.
The existence of one or more of the reasons enumerated in this
section does not require the court to deviate from the guidelines, but
such reason or reasons may be considered in deciding whether to
deviate from the guidelines. The court may deviate from the
guidelines even if no reason enumerated in this section exists, if
evidence of other reasons justifying deviation is presented.
(2) Stipulations. Stipulations presented to the court shall be reviewed
by the court before approval. No hearing shall be required;
however, the court shall use the guidelines in reviewing the adequacy
of child support orders negotiated by the parties and shall review
income statements that fully disclose the financial status of the
parties. The court, however, may accept from the parties and/or
their attorneys of record a Child Support Guidelines Notice of
Compliance that indicates compliance with this rule or, in the event
the child support guidelines have not been met, the reason for the
deviation therefrom. The form, content, and numbering scheme of
the Child Support Guidelines Notice of Compliance shall be
prescribed by the administrative director of courts (ADC). (See
Form CS-43 following this rule.)
(3) Modifications. The child support guidelines shall be used by the
parties as the basis for periodic updates of child support obligations.
(a) The provisions of any judgment respecting child support shall be
modified only as to installments accruing after the filing of the petition
for modification.
(b) There shall be a rebuttable presumption that child support should
be modified when the difference between the existing child support
award and the amount determined by application of these guidelines
varies more than ten percent (10%), unless the variation is due to the
fact that the existing child support award resulted from a rebuttal of
the guidelines and there has been no change in the circumstances that
resulted in the rebuttal of the guidelines.
(4) Health care needs. All orders establishing or modifying child
support shall, at a minimum, provide for the children's health care
needs through health insurance coverage or other means. Normally,
health insurance covering the children should be required if it is
available to either parent through his or her employment or pursuant
to any other group plan at a reasonable cost.
(B) Definitions.
(1) Income. For purposes of the guidelines established by this rule,
"income" means actual gross income of a parent, if the parent is
employed to full capacity, or the actual gross income the parent has
the ability to earn if the parent is unemployed or underemployed.
(2) Gross income.
(a) "Gross income" includes income from any source, and includes,
but is not limited to, salaries, wages, commissions, bonuses,
dividends, severance pay, pensions, interest, trusts, annuities, capital
gains, Social Security benefits, workers' compensation benefits,
unemployment insurance benefits, disability insurance benefits, gifts,
prizes, and preexisting periodic alimony.
(b) "Gross income" does not include child support received for other
children or benefits received from means-tested public assistance
programs, including, but not limited to, Aid to Families with
Dependent Children, Supplemental Security Income, food stamps,
and general assistance.
(3) Self-employment income.
(a) For income from self-employment, rent, royalties, proprietorship
of business, or joint ownership of a partnership or closely held
corporation, "gross income" means gross receipts minus ordinary
and necessary expenses required to produce such income, as
allowed by the Internal Revenue Service, with the exceptions noted
in section (B)(3)(b).
(b) "Ordinary and necessary expenses" does not include amounts
allowable by the Internal Revenue Service for the accelerated
component of depreciation expenses, investment tax credits, or any
other business expenses determined by the court to be inappropriate
for determining gross income for purposes of calculating child
support.
(4) Other income. Expense reimbursements or in-kind payments
received by a parent in the course of employment, self-employment,
or operation of a business shall be counted as income if they are
significant and reduce personal living expenses.
(5) Unemployment; underemployment. If the court finds that either
parent is voluntarily unemployed or underemployed, it shall estimate
the income that parent would otherwise have and shall impute to that
parent that income; the court shall calculate child support based on
that parent's imputed income. In determining the amount of income
to be imputed to a parent who is unemployed or underemployed, the
court should determine the employment potential and probable
earning level of that parent, based on that parent's recent work
history, education, and occupational qualifications, and on the
prevailing job opportunities and earning levels in the community. The
court may, in its discretion, take into account the presence of a
young or physically or mentally disabled child necessitating the
parent's need to stay in the home and therefore the inability to work.
(6) Preexisting child support obligation. The amount of child support
actually being paid by a parent pursuant to an order for support of
other children shall be deducted from that parent's "gross income." If
a parent is legally responsible for and is actually providing support
for other children, but not pursuant to an order of support, a
deduction for an "imputed preexisting child support obligation" may
be made from that parent's gross income. The imputed preexisting
child support obligation shall be that amount specified in the schedule
of basic child support obligations based on that parent's unadjusted
gross income and the number of other children for whom that parent
is legally responsible. "Other children" means children who are not
the subject of the particular child support determination being made.
If the proceeding is one to modify an existing award of support, no
deduction should be made for other children born or adopted after
the initial award of support was entered, except for support paid
pursuant to another order of support.
(7) Health insurance premiums.
(a) The actual cost of a premium to provide health insurance benefits
for the children shall be added to the "basic child support obligation"
and shall be divided between the parents in proportion to their
adjusted gross income in the percentages indicated on the Child
Support Guidelines form (Form CS-42).
(b) The amount to be added to the "basic child support obligation"
shall be the actual amount of the total insurance premium for
family/dependent coverage, regardless of whether all children
covered are in the same family.
(c) After the "total child support obligation" is calculated and divided
between the parents in proportion to their "monthly adjusted gross
income," the amount added pursuant to subsection (b) shall be
deducted from the obligor's share of the total child support
obligation, provided the obligor actually pays said premium. If the
obligee is actually paying the premium, no further adjustment is
necessary.
(d) If, at any time while a child support order providing for an
insurance adjustment is in effect, such insurance coverage is allowed
to lapse, is terminated, or otherwise no longer covers the children for
whose benefit the order was issued, the court (i) may find the
amount deducted from the obligor's child support obligation therefor
to be an arrearage in the obligor's total child support obligation; (ii)
may find the obligor liable for medical expenses that would
otherwise have been covered under the insurance; and/or (iii) enter
such other order as it shall deem appropriate.
(8) Child care costs. Child care costs, incurred on behalf of the
children because of employment or job search of either parent, shall
be added to the "basic child support obligation." Child care costs
shall not exceed the amount required to provide care from a licensed
source for the children, based on a schedule of guidelines developed
by the Department of Human Resources. Before the Department of
Human Resources implements any revision to the schedule of child
care cost guidelines, it shall provide the ADC a copy of the revised
schedule. The ADC shall, as soon as reasonably practicable
thereafter, disseminate the revised schedule to all judges, all circuit,
district, and juvenile court clerks and registers, and the Family Law
Section of the Alabama State Bar. The clerk or register shall
maintain the current schedule in his/her office, shall make it available
for review, and shall provide copies of it on request, at the
customary cost for copies of documents.
(9) Split custody. In those situations where each parent has primary
physical custody of one or more children, support shall be computed
in the following manner:
(a) Compute the support the father would owe to the mother for the
children in her custody as if they were the only children of the two
parties; then
(b) Compute the support the mother would owe to the father for the
children in his custody as if they were the only children of the two
parties; then
(c) Subtract the lesser support obligation from the greater. The
parent who owes the greater obligation should be ordered to pay the
difference in support to the other parent, unless the court determines,
pursuant to other provisions of this rule, that it should deviate from
the guidelines.
(C) Determination of recommended child support obligation.
(1) Basic child support obligation. The basic child support obligation
shall be determined by using the schedule of basic child support
obligations.
The category entitled "combined gross income" in the schedule
means the combined monthly adjusted gross incomes of both
parents. "Adjusted gross income" means gross income less
preexisting child support obligations and less preexisting periodic
alimony actually paid by a parent to a former spouse. For combined
gross income amounts falling between amounts shown in the
schedule, the lower value shall be used if the combined gross income
falls less than halfway between the amounts shown in the schedule.
Where the combined gross income falls halfway or more than
halfway between two amounts, the higher value shall be used. The
category entitled "number of children due support" in the schedule
means children for whom the parents share joint legal responsibility
and for whom support is being sought. The court may use its
discretion in determining child support in circumstances where
combined adjusted gross income is below the lowermost levels or
exceeds the uppermost levels of the schedule.
(2) Computation of child support. A total child support obligation is
determined by adding the basic child support obligation,
work-related child care costs, and health insurance costs. The total
child support obligation shall be divided between the parents in
proportion to their adjusted gross incomes. The obligation of each
parent is computed by multiplying the total child support obligation
by each parent's percentage share of their combined adjusted gross
income. The custodial parent shall be presumed to spend his or her
share directly on the child.
(3) Rounding. All dollar amounts used in child support calculations
under this rule, including the recommended child support order, may
be rounded to the nearest dollar, and all percentages may be
rounded to the nearest one percent.
(4) Additional awards for child support. In addition to the
recommended child support order, the court may make additional
awards for extraordinary medical, dental, and educational expenses
if (i) the parties have in writing agreed to such awards or (ii) the
court, upon reviewing the evidence, determines that such awards are
in the best interest of the children and states its reasons for making
such additional awards.
(D) Schedule of basic child support obligations. A schedule of basic
child support obligations appears as an appendix to this Rule 32.
(E) Standardized child support guidelines form, child support
obligation income statement/affidavit form, and child support
guidelines notice of compliance form. A standardized Child Support
Guidelines form and a Child Support Obligation Income
Statement/Affidavit form shall be filed in each action to establish or
modify child support obligations and shall be of record and shall be
deemed to be incorporated by reference in the court's child support
order. In conformance to Section (A)(2) of this Rule, in stipulated
cases the court may accept the filing of a Child Support Guidelines
Notice of Compliance form. The form, content, and numbering
schemes of the Child Support Guidelines form, the Child Support
Obligation Income Statement/Affidavit form, and the Child Support
Guidelines Notice of Compliance form shall be prescribed by the
ADC.
(F) Income statements. Income statements of the parents shall be
verified with documentation of both current and past earnings.
Suitable documentation of current earnings includes pay stubs,
employer statements, or receipts and expenses if self-employed.
Documentation of current earnings shall be supplemented with
copies of the most recent tax return to provide verification of
earnings over a longer period or shall be supplemented with such
other documentation as the court directs. Intentional falsification of
information presented on the Child Support Obligation Income
Statement/Affidavit form shall be deemed contempt of court.
Documentation of earnings used in preparing the Child Support
Obligation Income Statement/Affidavit form shall be maintained by
the parties and made available as directed by the court.
(G) Review of child support guidelines. The ADC shall, at least once
every four years, review the child support guidelines and the
schedule of basic child support obligations, to ensure that their
application results in appropriate child support determinations. If the
ADC determines that no change is required in the guidelines or in the
schedule, the ADC shall so advise the Supreme Court.
HISTORY: (Amended 9-28-87, eff. 10-1-87; Amended 8-29-89,
eff. 10-9-89; Amended 8-24-93, eff. 10-4-93.)
Cross References -- Child custody and support, generally, @
30-3-1 et seq.
Comment As Amended to Conform to Amendments Effective
October 4, 1993
Rule 32 establishes guidelines as a rebuttable presumption for the
ordering of child support awards. These guidelines were adopted in
response to requirements set forth in the Child Support Enforcement
Amendments of 1984 (P.L. 98-378) and the Family Support Act of
1988 (P.L. 100-485). The guidelines will provide an adequate
standard support for children, subject to the ability of their parents to
pay, and will make awards more equitable by ensuring more
consistent treatment of persons in similar circumstances.
These guidelines are based on the income shares model developed
by the National Center for State Courts and are founded on the
premise that children should not be penalized as a result of the
dissolution of the family unit but should continue to receive the same
level of support that would have been available to them had the
family unit remained intact. Under the guidelines, attorneys for the
plaintiff and defendant will be required to submit a Child Support
Guidelines form and Child Support Obligation Income
Statement/Affidavit form in each action to establish or modify child
support. The Child Support Guidelines form will set forth the
combined income available to the family unit, the basic child support
obligation as determined from the Schedule of Basic Child Support
Obligations (Appendix to Rule 32), and adjustments to the basic
obligation for work-related child care expenses and health insurance
premiums. A portion of the adjusted total child support obligation is
then ascribed to each parent based on his/her percentage share of
the combined family income. The Child Support Guidelines form sets
forth the recommended child support obligation for the noncustodial
parent, which includes an adjustment for the cost of the health
insurance premium if such a premium is paid by the noncustodial
parent. The guidelines assume that the custodial parent will directly
provide his/her proportionate share of support to the children. In
addition to the recommended child support obligation, the court may
make additional awards for extraordinary medical, dental, and
educational expenses if the court finds such awards to be in the
children's best interest or if the parents have agreed to such awards.
The Schedule of Basic Child Support Obligations was developed
through research sponsored by the National Center for State Courts
and is based on extensive economic research on the cost of
supporting children at various income levels. This schedule is based
on gross income and has been adjusted for Alabama's income
distribution relative to the U. S. income distribution. It also
incorporates the 1987 federal income tax provisions as well as the
withholding schedule for Alabama state income tax.
Other assumptions incorporated in the Schedule of Basic Child
Support Obligations include:
(1) Tax exemptions. The Schedule of Basic Child Support
Obligations assumes that the custodial parent will take the federal
and state income tax exemptions for the children in his or her
custody;
(2) Health care costs. In respect to health care costs, the Schedule
of Basic Child Support Obligations assumes unreimbursed medical
costs of $ 200 per family of four per year. These assumed costs
include medical expenses not covered or reimbursed by health
insurance or Medicaid or Medicare; and
(3) Visitation. The Schedule of Basic Child Support Obligations is
premised on the assumption that the noncustodial parent will
exercise customary visitation rights, including summer visitation. Any
abatement of child support because of extraordinary visitation should
be based on visitation in excess of customary visitation.
The schedule of basic child support obligations includes combined
gross incomes ranging from $ 550 to $ 10,000 a month. Rule
32(C)(1) provides that the court may use its discretion in
determining child support where the combined adjusted gross
income is below the lowermost levels or above the uppermost levels
of the schedule. To further the consistency of awards, a court may
wish to issue an order establishing minimum child support obligations
for combined adjusted gross incomes of less than $ 550. Where the
combined adjusted gross income exceeds the uppermost limit of the
schedule, the amount of child support should not be extrapolated
from the figures given in the schedule, but should be left to the
discretion of the court.
Rule 32(B)(8) provides an adjustment for work-related child care
costs, provided such costs do not exceed those on the schedule of
guidelines for licensed child care costs published by the Alabama
Department of Human Resources (DHR). The rule requires that
copies of the DHR schedule of guidelines for child care costs be
available through the office of the clerk or register of each court
where child support actions are filed. Copies of the schedule of
guidelines for child care costs should also be available in the county
offices of the Department of Human Resources.
The Alabama child support guidelines do not specifically address the
problem of establishing a support order in joint legal custody
situations. Such a situation may be considered by the court as a
reason for deviating from the guidelines in appropriate situations,
particularly if physical custody is jointly shared by the parents.
Shared physical custody, regardless of "legal custodial
arrangements," is an appropriate reason for deviation, Section
(A)(1)(a). "Shared physical custody" refers to that situation where
the physical placement is shared by the parents in such a manner as
to assure the child frequent and continuing contact and time with
both parents. Because of the infinite possibilities that exist in terms of
time spent with each parent and other considerations associated with
such custody, a determination of support is to be made on a
case-by-case basis and is left to the sound discretion of the trial
court, to be based on findings made at or after trial or upon a fair
written agreement of the parties. When a shared physical custody
situation results in a support award that deviates from the award that
would result from application of the guidelines, the trial court's order,
or the written agreement of the parties, must specify and explain the
reason for the deviation.
The guidelines also do not address the problem of subsequent
children or families. While no deduction may be made for children
born or adopted after an initial award of support, unless made
pursuant to another order of support or as otherwise provided in this
rule, a court may consider evidence of support provided by a party
for after-born or adopted children offered in an attempt to rebut the
guidelines' presumptions. See Loggins v. Houk, 595 So. 2d 488
(Ala. Civ. App. 1991).
The Schedule of Basic Child Support Obligations assumes that a
family of four will have approximately $ 200 in unreimbursed
medical expenses each year. In providing for the payment of
deductibles and/or other noncovered medical expenses by the
parties, it should be assumed that those expenses are in excess of
this amount. Courts and parties may wish to consider whether
noncovered medical and/or dental expenses should be allocated in
the same percentages as the health insurance premiums are allocated
pursuant to this rule and as entered on the Child Support Guidelines
form (Form CS-42).
When provisions for payment of a health insurance premium are
made as provided in Rule 32, the court, or the parties drafting an
agreement, should also consider requiring proof that the children
have been enrolled in the health insurance plan and proof of the
actual cost of dependent coverage. The court should, in its order of
child support, require the parent providing dependent insurance
coverage to submit annually proof of continued coverage to the
other parent, the court, or the designated child support enforcement
agency, and should further require provision of an identification card
or other evidence of insurance sufficient for the children to be
afforded benefits of such insurance coverage by service providers.
The Supreme Court's Advisory Committee on Child Support
Guidelines and Enforcement, which assisted in drafting this rule, has
recommended that child support obligations be determined before
the court considers spousal support or other obligations.