What are Non-Mandatory Deviations?
In addition to the mandatory deviations that include the child's health insurance premium and work related child care costs, there are several other non-mandatory deviations that MAY increase or decrease the presumptive amount of child support in Georgia. These deviations may include but are not limited to: high income, low income, other health related insurance, life insurance, alimony, mortgage, permanency plan or foster care plan, extraordinary expense, parenting time and nonspecific deviations. The more common non- mandatory deviations are discussed in detail below. However, if you are interested in learning more about any of the other deviations listed, or the likelihood that a judge will actually exercise their discretion to grant one of these non-mandatory deviations, please contact one of Meriwether & Tharp's experienced Atlanta divorce lawyers.
M&T Practice Pointer - Mandatory vs. Non-Mandatory
If a mandatory deviation is applicable in your case, then it must be considered. Conversely, judges do not have to grant non-mandatory deviations. Instead, they will use their discretion to determine if it is appropriate to a apply a non-mandatory deviation based on facts and circumstances of your case.
Non-Mandatory Deviations in Detail
Low Income Deviation
Travel Expenses Deviation
Summer Camp & Extracurricular Activities
Private School Expenses
Child & Dependent Care Tax Credit
Other Health Related Insurance
A parenting time deviation is an adjustment to the non-custodial parent's presumptive child support amount based on the non-custodial parent's visitation time with the child. A parenting time deviation is most likely to apply to cases where the parents share joint physical custody of the child or where the non-custodial parent spends a significant amount of time with the child. The purpose of this deviation is to ensure that the presumptive amount of child support is not excessive or inadequate due to extended parenting time of either the custodial or non-custodial parent.
If the combined income of both parents exceeds $30,000 per month, the parents are considered to be high income parents and their child support obligation may be deviated accordingly. In this case, a court may upwardly deviate the child support award in order to attain an appropriate award considering the income of the parents. High income deviations are especially difficult to determine and given the lack of clear guidance, it is strongly recommended that you discuss a high income deviation with an experienced divorce lawyer.
If necessary, a non-custodial parent may request a low income deviation in order to reduce his or her child support obligation. That parent must show that he or she has no earning capacity or that the presumptive amount of child support would create an extreme economic hardship for him or her. In considering a non-custodial parent's request for a low income deviation, a court will examine all of the parent's possible sources of income, including assets and benefits available to that parent. The court will then weigh this against the relative hardship that a reduction in the amount of child support would cause for the custodial parent. If a court does determine that a low income deviation is appropriate, the absolute minimum child support obligation that a parent will have is $100 per month.
If the non-custodial parent must travel to exercise parenting time, he or she may seek a downward deviation to their presumptive child support amount to ensure that the parent is not hampered from exercising parenting time due to financial constraints. As with the other non-mandatory deviations allowable in Georgia, the presiding court is not required to include this deviation the final child support calculation. Specifically, a court may refuse to incorporate this deviation if for example the parent seeking the deviation purposefully placed him or herself in a situation that requires significant travel to exercise parenting time.
A deviation may also be taken if either parent has purchased life insurance on the life of either parent for the benefit of the child. The costs of the insurance premium may either be added or subtracted to the child support amount depending on which parent is responsible for the insurance premium.
Deviations in the presumptive child support amount may also be taken if the custodial parent incurs extraordinary child care expenses in caring for the child. Expenses are considered extraordinary if they are in excess of the average expenses incurred by families, and the nature of a particular family's expenses are considered on a case by case basis. Extraordinary expenses incurred in order to care for a child will be prorated between the parents by assigning or deducting credit for actual payments for extraordinary expenses. These extraordinary expenses include extraordinary educational expenses, special food, clothing or personal care related expenses, and extraordinary medical expenses.
If either the custodial or non-custodial parent pays for certain expenses, such as summer camp, music, sports, or other extracurricular activities they may be able to seek out what is known as the Allowable Special Expense deviation. This deviation is a subset of the Extraordinary and Special Expenses deviation.
One of the most common deviations included in child support is a deviation for the cost of the child's private school tuition and other expenses. This deviation is known as the Extraordinary Educational Expenses Deviation. The cost that one parent incurs for private school expenses may included in the child support calculation as long as both parties agree to it or the judge finds that it is warranted given the particular situation.
Essentially, this deviation allows a non-custodial parent who pays for the residence where the minor child and the custodial parent reside, that parent may reduce his or her final child support obligation. Depending on the circumstances of the specific matter, the non-custodial parent may seek a deviation amounting to the total cost of the mortgage paid, or only seek a deviation of a portion of the amount paid.
If the either parent is obligated to pay alimony, the payment of alimony does not reduce that parent's gross income for the purposes of calculating child support, but the payment of alimony may be considered as a deviation from the presumptive child support amount. Essentially, in the case of a non-custodial parent, his or her child support obligation may be reduced by virtue of also paying alimony, but the reduction will come in the form of a child support deviation, not a direct reduction in the gross income amount that parent should include on the worksheet.
According to Georgia's statutory law, the Child and Dependent Care Tax Credit is applicable "if the court or the jury finds that one of the parents is entitled to the Child and Dependent Care Tax Credit, the court or the jury may deviate from the presumptive amount of child support in consideration of such credit." O.C.G.A. § 19-6-15(i)(2)(E). The Child and Dependent Care Tax Credit is a federal tax credit that may be claimed by a parent if that parent paid someone to care for his or her child or a dependent so he or she could work or look for work. If this tax credit is claimed, it subtracted from the amount of taxes that parent owes, thus reducing his or her tax liability. As a child can only be claimed as a dependent once, after a divorce, only one parent is entitled to this tax credit for each child.
The crux of the Other Health Related Insurance deviation is that it applies to premiums paid by either parent on behalf of the minor child involved for health related insurance like vision insurance or dental insurance. In essence, this deviation provide parents who pay such expenses the ability to consider these payments when they calculate child support, even though they may not be able to take advantage of the health Insurance deviation.
This deviation is essentially a catch-all category that was included to cover certain family specific or special situations that may not be adequately addressed by any other deviation. Because every family is unique, what applies in one family may not apply in another. With the non-Specific Deviation, the non-custodial parent has the ability to ask for a deviation for any reason. However, it is important to keep in mind that this deviation will only be granted if the presiding court finds that it will serve the best interest of the child..