Rule 1910.16-6. Support Guidelines. Adjustments to the Basic Support Obligation. Allocation of Additional Expenses.

 Additional expenses permitted pursuant to this Rule 1910.16-6 may be allocated between the parties even if the parties’ incomes do not justify an order of basic support.

 (a)  Child care expenses. Reasonable child care expenses paid by either parent, if necessary to maintain employment or appropriate education in pursuit of income, shall be allocated between the parties in proportion to their net incomes and added to his and her basic support obligation. When a parent is receiving a child care subsidy through the Department of Public Welfare, the expenses to be allocated between the parties shall be the amount actually paid by the parent 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 Rule 1910.16-3 is $1,426 for two children. As Father’s income is 64% of the parties’ combined income, his share is $913. Mother incurs child care expenses of $400 per month and Father incurs $100 of such expenses each month. The total amount of child care expenses, $500, will be apportioned between the parties, with Father paying 64%, or $320. As he 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 $1,133 ($913 + $220 = $1,133).

   (1)  Except as provided in subsection (2), the total child care expenses shall be reduced to reflect the amount of the federal child care tax credit available to the eligible parent, whether or not the credit is actually claimed by that parent, up to the maximum annual cost allowable under the Internal Revenue Code.

   (2)  The federal child care tax credit shall not be used to reduce the child care expenses subject to allocation between the parties if the eligible parent is not qualified to receive the credit.

 (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. Premiums paid by a party to whom no duty of support is owed to cover himself or herself only and that are not necessary to cover the other party or a child as part of a support order shall not be apportioned between the parties. 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.

  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.

  Example 2. If the parties are divorced and Father pays $200 per month toward the cost of a health insurance policy provided through his employer which covers himself, the parties’ child and two additional children from a previous marriage, the portion of the premium attributable to Father and the two additional children will not be allocated between the parties. Thus, using the same calculations in Example 1, the amount of the premium attributable to Father and the two other children is $150 ($200 premium divided among four covered persons equals $50 per person multiplied by three) and that amount is deducted from the total cost of the premium, leaving $50 ($200 - $150 = $50) to be allocated between the parties.

  Example 3. The parties are divorced and Mother is the obligee of a child support order. Father, the obligor, pays $200 per month toward the cost of a health insurance policy provided by his employer that covers himself and the parties’ child. Mother pays $400 per month for her employer-sponsored health insurance that covers only herself. The amount of the premium Father pays to cover the parties’ child, $100 ($200 premium divided between two covered persons, Father and the child), will be allocated between the parties in proportion to their respective incomes. The portion of the premium that covers Father will not be allocated because the parties are no longer married and he is not owed a duty of support by Mother. The premium Mother pays to provide her own coverage will not be allocated because the parties are no longer married and she is not owed a duty of support by Father.

   (3)  Pursuant to 23 Pa.C.S. §  4326(a), in every support proceeding, the court must ascertain each parent’s ability to provide medical support for the parties’ children and the support ‘‘order shall include a requirement for medical support to be provided by either or both parents, provided that such medical support is accessible to the children.’’

     (i)   The non-custodial parent bears the initial responsibility of providing health care coverage for the children if it is available at a reasonable cost. ‘‘Reasonable cost’’ to an obligor shall be defined as an amount that does not exceed 5% of the obligor’s net monthly income and, when added to the amount of basic child support plus additional expenses the obligor is ordered pay, does not exceed 50% of the obligor’s net monthly income.

     (ii)   Unless health care coverage for the parties’ children is provided by the obligee or a third party, the court shall issue the National Medical Support Notice required by 23 Pa.C.S. §  4326(d.1) to the obligor’s employer in response to notification that the obligor is employed. The notice shall direct the employer to enroll the children of the obligor who are the subject of the support proceeding if the coverage is available at a reasonable cost to the obligor. However, the notice shall direct that enrollment shall not occur earlier than 25 days from the date of the National Medical Support Notice to allow the obligor time to object. Concurrent with the issuance of the National Medical Support Notice, the court shall provide notice to the obligor setting forth the process to object to the enrollment based upon unreasonable cost, mistake of fact or availability of alternative health care coverage for the children. If there is more than one employer-provided health care coverage option, the obligor shall select the plan, subject to the obligee’s right to seek a court order designating a different option.

     (iii)   Absent the availability of health care coverage to the obligor for the parties’ children at a reasonable cost, the court shall order the obligee to provide health care coverage for the children if it is available at a reasonable cost. ‘‘Reasonable cost’’ to the obligee shall be defined as an amount not to exceed 5% of the obligee’s net monthly income.

     (iv)   If health care coverage is not available to either party at a reasonable cost, the court may order the custodial parent to apply for government-sponsored coverage, such as the Children’s Health Insurance Program (‘‘CHIP’’), with any co-premium or other cost apportioned between the parties in proportion to their respective net monthly incomes.

     (v)   Within thirty days after the entry of the support order, the party ordered to provide health care coverage shall provide written proof to the other party that medical insurance has been obtained, including insurance cards and all other materials set forth in the form order in Rule 1910.27(e). There shall be a continuing obligation to provide the other party and the court with proof of any changes in coverage.

     (vi)   The court shall give preference to health care coverage that is readily accessible to the child, as defined by geographic coverage area, access to local treatment providers or other relevant factors.

   Official Note

   The maximum amount of any attachment for child and medical support is set forth by the federal Consumer Credit Protection Act (Public Law 90-321, Section 303(b); 15 U.S.C. §  1601 et seq.).

   (4)  In cases in which the obligor is paying the cost of health insurance coverage and the obligee has no income or minimal income such that the obligor will bear 90% or more of the proportional share of the cost of the health insurance premiums, the trier of fact may, as fairness requires, deduct part or all of the cost of the premiums actually paid by the obligor to provide coverage for the other party or the children from the obligor’s gross income to determine net income for support purposes. If such a deduction is taken from the obligor’s gross income, then the allocation of premium costs as set forth in (b)(1) above shall not be applied.

   Official Note

   Subdivision (b) of this rule does not apply to Medical Assistance. See 23 Pa.C.S. §  4326(l). The 2005 amendments to Rule 1910.16-6(b)(1) and (2) clarify that the portion of the insurance premium covering the party carrying the insurance cannot be allocated between the parties if there is no statutory duty of support owed to that party by the other party. See Maher v. Maher, 575 Pa. 181, 835 A.2d 1281 (2003) and 23 Pa.C.S. §  4321.

 (c)  Unreimbursed Medical Expenses. 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 unreimbursed medical expenses incurred by a party who is not owed a statutory duty of support by the other party. The court may direct that the obligor’s share be added to his or her basic support obligation, or paid directly to the obligee or to the health care provider.

   (1)  For purposes of this subdivision, medical expenses are annual unreimbursed medical expenses in excess of $250 per person. Medical expenses include insurance co-payments and deductibles and all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental and optical services, and orthodontia. Medical expenses do not include cosmetic, chiropractic, psychiatric, psychological or other services unless specifically directed in the order of court.

   Official Note

   While cosmetic, chiropractic, psychiatric, psychological or other expenses are not required to be apportioned between the parties, the court may apportion such expenses that it determines to be reasonable and appropriate under the circumstances.

   (2)  An annual limitation may be imposed when the burden on the obligor would otherwise be excessive.

   (3)  Annual expenses pursuant to this subdivision (c), shall be calculated on a calendar year basis. In the year in which the initial support order is entered, the $250 threshold shall be pro-rated. Documentation of unreimbursed medical expenses that either party seeks to have allocated between the parties shall be provided to the other party not later than March 31 of the year following the calendar year in which the final bill was received by the party seeking allocation. For purposes of subsequent enforcement, unreimbursed medical bills need not be submitted to the domestic relations section prior to March 31. Allocation of unreimbursed medical expenses for which documentation is not timely provided to the other party shall be within the discretion of the court.

   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. The support schedule does not take into consideration expenditures for private school tuition or other needs of a child which are not specifically addressed by the guidelines. If the court determines that one or more such needs are reasonable, the expense thereof shall be allocated between the parties in proportion to their net incomes. The obligor’s share may be added to his or her basic support obligation.

 (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 will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise. If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee’s net income (including amounts of spousal support, alimony pendente lite and child support), the court may direct the obligor to assume up to 50% of the excess amount as part of the total support award. 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 child support the obligor is paying), the court may make an appropriate downward adjustment in the obligor’s support obligation. This rule shall not be applied after a final resolution of all outstanding economic claims. 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 obligations incurred during the marriage which are secured by the marital residence.

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.

Source

   The provisions of this Rule 1910.16-6 adopted December 7, 1998, effective April 1, 1999, 28 Pa.B. 6162; amended October 27, 2000, effective immediately, 30 Pa.B. 5837; amended June 5, 2001, effective immediately, 31 Pa.B. 3306; amended October 30, 2001, effective immediately, 31 Pa.B. 6273; amended October 31, 2002, effective immediately, 32 Pa.B. 5632; amended July 30, 2003, effective immediately, 33 Pa.B. 4073; amended September 24, 2003, effective immediately, 33 Pa.B. 5075; amended November 9, 2004, effective immediately, 34 Pa.B. 6315; amended May 17, 2005, effective immediately, 35 Pa.B. 3216 and 3900; amended September 27, 2005, effective 4 months from the date of this order, 35 Pa.B. 5643; amended October 17, 2006, effective immediately, 36 Pa.B. 6632; amended August 13, 2008, effective October 12, 2008, 38 Pa.B. 4736; amended December 8, 2009, effective immediately, 39 Pa.B. 7097; amended January 12, 2010, effective May 12, 2010, 40 Pa.B. 586; amended July 8, 2010, effective September 6, 2010, 40 Pa.B. 4140; amended August 26, 2011, effective September 30, 2011, 41 Pa.B. 4851; amended April 9, 2013, effective August 9, 2013, 43 Pa.B. 2272. Immediately preceding text appears at serial pages (358531) to (358538).



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