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Episode 112 - What Deviations to Child Support Can A Judge Consider?

Episode 112 - What Deviations to Child Support Can A Judge Consider? Image

02/19/2019 10:06 am

Pat Buonodono comes back on the show for another episode about Georgia Child Support. In this one, we tackle important questions that we could not get to last show. We talk about discretionary deviations to child support that a Judge can consider granting. We discuss the types that a Judge often considers, as well as ones that are hard to win. For example, we discuss deviations for parenting time, visitation travel, extra-curricular activities, and more!

Transcript

Leh Meriwether:             Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on the new Talk 106.7. Here you will learn about divorce, family law, tips on how to save your marriage if its in the middle of a crisis and from time to time even tips on how to take your marriage to the next level. If you want to read more about us you can always check us out online, atlantadivorceteam.com. Well, Todd?

Todd Orston:                   You're excited.

Leh Meriwether:             I'm excited.

Todd Orston:                   We get it! (Laughing)

Leh Meriwether:             We're very fortunate today that Pat, albeit hesitantly, (laughs)

Todd Orston:                   Agreed to come on again (Laughs)

Leh Meriwether:             Agreed to come on the show.

Todd Orston:                   It was touch and go.

Leh Meriwether:             (Laughing)

Todd Orston:                   But Pat, thank you very much for suffering through one more show.

Pat Buonodono:              It's my pleasure. (Laughs)

Leh Meriwether:             So, if you missed the last show, Pat Buonodono earned her bachelor of arts degree in english at Georgia State University. She earned her jurist doctorate degree from Georgia State University college of law. In 1994, she opened up her own practice. For 16 years she focused on family law and child welfare. She went on to become a registered mediator in civil domestic relations and domestic violence cases. She served as a fellow for the supreme court of Georgia's committee on justice for children's cold case projects, studying cases to improve the outcomes and policies regarding children in foster care.

Leh Meriwether:             Pat began to work with the administrative office in the courts as managing attorney for education for the committee on justice for children in 2010 and became a director on the child support project and staff attorney to the Georgia support commission in the fall of 2012. Pat has participated in 15 to 30 child support trainings each year and has answered questions from the public, attorneys and judged on a daily basis since beginning work for the Georgia child support commission.

Leh Meriwether:             We're very fortunate that now Pat is with us. So, we are so excited to have you back in the studio, even though I may have scared you last time.

Pat Buonodono:              (Laughs)

Todd Orston:                   She may be second guessing that decision, though.

Leh Meriwether:             (Laughs)

Todd Orston:                   After these two shows.

Pat Buonodono:              (Laughs)

Todd Orston:                   Don't hold it against the firm, please.

Leh Meriwether:             Todd's not always like this (Laughing)

Todd Orston:                   It's my fault. Always my fault.

Leh Meriwether:             Well, last show, in case you missed it you can go back and listen at any place that podcasts or broadcasts, iTunes, Stitcher, Spotify, Soundcloud, Google Play Store.

Todd Orston:                   Other, yes.

Leh Meriwether:             I could spend the whole show just going down the list, alright.

Todd Orston:                   Moving on (Laughing)

Leh Meriwether:             Stay focused. (Laughing) But Pat is going to go a little bit deeper today, because we're going to talk about deviations. We talked about, we took a 50,000 foot view, we went a little bit deeper. Talking about which each schedule on the child support worksheets looks like. But the last schedule we really didn't touch on was schedule E. The schedule we wish was D, but for some reason, well we explained the reason. There is no schedule C in the child support worksheet.

Todd Orston:                   No, good job. Anybody who didn't hear that show is now listening and is like “What is he talking about?"

Leh Meriwether:             I've just incentivized them to go back and listen.

Todd Orston:                   Oh, there you go. Alright. Oh, there's a method to your madness.

Leh Meriwether:             There is.

Todd Orston:                   I like it.

Leh Meriwether:             (Laughs) So, there's schedule E and that's deviations and man, we barely scratched the surface of the basics last time. It wasn't that we were trying to make it complicated, we were actually trying to explain how simple it is. But there's a lot of little pieces you can easily miss and get the wrong child support number. Maybe you're paying too much money, maybe you're not paying enough or your not receiving enough. So, we talked about the basics just to make sure that you're looking over the basics. We even, well Pat even, went over how do you fill out a worksheet online, because now its all available online. So, anybody. You don't have to wait for a lawyer to tell you. You can go online to- What's the website?

Pat Buonodono:              It is csc.georgiacourts.gov. G O V.

Leh Meriwether:             Alright.

Todd Orston:                   And, justo to build on that a little bit. It is always our position that having a tool like this, if children are involved and you have to pay child support or you're receiving child support, you can wait for an attorney to do it for you or, obviously if you're handling a case yourself, you want to go on, you want to play with the worksheet. You want to just familiarize yourself because if you're doing it on your own you want to do it right. If you're working with ana attorney, it is better to not go in cold. It is better, especially if it is an online tool you can easily access and playa round with. It's better for you to familiarize yourself so that when the time comes for you to sit with your attorney and start working numbers it's not cold. You're not jumping in-

Leh Meriwether:             You've gathered more information.

Todd Orston:                   You understand how the process works. You understand what the schedules are and the worksheet and what the tables mean. How child support, generally speaking, is calculated. Which will make you more educated and better prepared to talk to and work with your attorney.

Leh Meriwether:             And what I love, also, is that y'all put on the website, before you left there,

Pat Buonodono:              (Laughs)

Leh Meriwether:             All kinds of videos on how to use it.

Todd Orston:                   It's great.

Leh Meriwether:             Guides, even have the statute up there, so it's not a mystery to anybody. What's the statute say about child support? It's right there, you can download it. Case law, I mean I think that people should just probably stick with the statute, but they may want to look up the case law because there's some really good stuff out there. But let's talk about deviation. What are deviations in child support?

Pat Buonodono:              Deviations are discretionary adjustments to the child support worksheet. So, for example, if a parent has to travel to visit with their children. It's usually the judges would consider it if they move because they have to work to support the family, or if the other party moved the children away from them. Then the court would consider a deviation for the expense of traveling to visit the children.

Todd Orston:                   So, to be clear. In other words lets say you go through the process. You set or you establish what the basic child support number should be.

Pat Buonodono:              Yes.

Todd Orston:                   I'm using a round number, 1,000 dollars. Let's say you're supposed to be paying 1,000 dollars in child support. You are asking the court then for some permissible reason to deviate.

Pat Buonodono:              Yes.

Todd Orston:                   Or, move away from that basic 1,000 dollar number and say "Hey, because I'm incurring these other costs, can you set my child support lower to help me pay both the child support and incur that cost."

Pat Buonodono:              Exactly. And it's not always the full amount. For example, if you're spending-

Todd Orston:                   That's a great point.

Pat Buonodono:              500 dollars a month to travel to see your kids, you're probably not going to get the deviation for that full 500 dollars. But the court will give you some consideration, generally speaking. So you'll get some amount that will lower your child support.

Todd Orston:                   I'm glad you said that because that's been a difficult conversation at times. Where, you know, let's says somebody is incurring five, six, 700 dollars. They have to pay for air fare, they have to get a hotel, they have to do other things. And they're like-

Leh Meriwether:             They have to rent a car, or use an Uber.

Todd Orston:                   Right. And they're paying 1,000 and they're incurring 700 dollars in travel and they're like “Well, I guess my child support will be 300 dollars. I'll get a 700 dollar discount on my child support.” It's a difficult conversation where it's like “No, the courts not going to give you 100%."

Pat Buonodono:              Right. Exactly. So we have to tell people to bear that in mind. So, discretionary, the judges have to look at what's in the best interest of the child. We did have some changes to the law last year that kind of really lightened up that language. I was kind of distressed by that.

Todd Orston:                   (Laughing)

Pat Buonodono:              But, I'm not a legislator so I don't have a say.

Leh Meriwether:             Well, we don't want to mention it real quick? Cause I think that is critical.

Todd Orston:                   Yeah.

Leh Meriwether:             Before we get into some of these other deviations, so people can sort of keep that in perspective. What that recent change was.

Pat Buonodono:              The recent change was that the courts may consider the best interest of the child. But, it's not. They also have to look at the ability of the parties to pay. And so, what they're really trying to do is keep child support amounts at a number that can realistically be paid by the non-custodial parents.

Todd Orston:                   And you know what's interesting? Moving. When Georgia moved to this method calculating child support, this income share model.

Pat Buonodono:              Mm-hmm (affirmative)

Todd Orston:                   Judges had a lot of authority to create a child support amount based on a lot of factors. When we came and when we went to this method, courts often times were taking the position of “I really can't do much.” Whatever the guidelines say, that's what you're going to pay. If you want to talk about the deviation that is allowable under the law, fine. But a lot of that authority was taken away from. It looks like legislature is giving a little more of that authority back to the court

Pat Buonodono:              Yes, and I don't ever think that we really took it away because the guidelines are presumptive.

Todd Orston:                   Correct.

Pat Buonodono:              Right? So, it can always be changed.

Todd Orston:                   So it's more of an education thing.

Pat Buonodono:              Yes.

Todd Orston:                   It's clarifying it so that the courts, meaning judges, understand. You do have some-

Pat Buonodono:              Yes. Exactly.

Leh Meriwether:             But I will say I have heard that statement from judges on the bench going “Well the worksheets say this is what I got to do, so this is what I'm ordering.”

Pat Buonodono:              Okay, and again they're presumptive but that presumption can be overcome.

Leh Meriwether:             Right.

Pat Buonodono:              So, I would argue about it (Laughs)

Todd Orston:                   No! But-

Pat Buonodono:              I like to argue (Laughs)

Leh Meriwether:             (Laughing)

Todd Orston:                   I think what it comes down to is, as with any new system, and it's not that new anymore. But, as with any new system, you're tweaking it. I mean, that's what you've been involved in. Right? You've tweaking the system, educating, making sure everybody involved-

Pat Buonodono:              Yes.

Todd Orston:                   From the clients and the people who are dealing with it to the attorneys to the judges. Everybody understands what their roles are and what they're able to do.

Pat Buonodono:              Right. And the child support commission is responsible, not only for training attorneys, but judges, mediators. You know, everybody who's involved in the system. The online trainings are of course available to the public, as well.

Leh Meriwether:             All right, well you know up next we're going to get into some specific deviations. Talk about what exactly is on the schedule E and what people can ask the court to take into consideration when calculating child support, so that we come to a fair number that is in the best interest of the children and that both parties can afford.

Leh Meriwether:             Welcome everyone I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on the new talk 106.7. If you want to read more about us you can always check us out online at atlantadivorceteam.com.

Leh Meriwether:             Well lets keep going, cause there's-

Todd Orston:                   We have a couple more segments and we have nothing better to do, so.

Pat Buonodono:              (Laughs)

Leh Meriwether:             (Laughing) Well if you keep talking, we're never going to get through all the things we want to talk about.

Todd Orston:                   (Laughs) Oh, I'm the talkative one?

Leh Meriwether:             (Laughs) Alright, so, in all seriousness we're talking about deviations here today with Pat who used to be the staff attorney for the Georgia child support commission who knows all this stuff. She wrote the code, no I'm just kidding.

Pat Buonodono:              No I did not! (Laughs)

Leh Meriwether:             (Laughing) Totally kidding there.

Todd Orston:                   (Laughs)

Pat Buonodono:              It's not my fault!

Todd Orston:                   (Laughs)

Leh Meriwether:             (Laughs) No, but she knows a lot about it, she's worked with it, she helped educate people about it. Lets just go through, cause with deviations there's so many options, really, with deviations. Lets just go through them one by one, some we can just skip right over.

Pat Buonodono:              Right.

Leh Meriwether:             But some we're probably gonna need a little more detail. Lets just start going through them as they, sort of I guess, appear on the worksheet.

Pat Buonodono:              Okay. So you have additional insurance. Which is usually, technically, just dental and vision. A lot of people ask why that's not clumped together with the health insurance. But, it's because the health insurance is federally mandated and this is optional. So, that's why it's a deviation. Life insurance, if you're paying life insurance for the benefit of your children in case something happens to you, then you can use your premium amounts to request a deviation. The child and dependent care tax credit can be used to increase, or if the other party's getting it, to decrease the non-custodial parent's amount. Visitation we talked about already. If you're paying alimony, then that may be a consideration for deviation. So, it might change the amount that you're required to pay.

Todd Orston:                   Now, are you talking about alimony to the same parent or the same spouse or parent that you're paying the child support to?

Pat Buonodono:              Well, that's-

Todd Orston:                   Or were you talking about to another relationship?

Pat Buonodono:              That's a really good question, and it doesn't say in this statute.

Todd Orston:                   (Laughs)

Pat Buonodono:              (Laughing) And so, we don't know the answer to that.

Todd Orston:                   If only we knew somebody who had [inaudible 00:13:35].

Pat Buonodono:              Well, actually we had a judge who came to us and said “This is a problem for jury instructions."

Todd Orston:                   Yeah.

Leh Meriwether:             Oh, yeah.

Pat Buonodono:              And so, it's something that they're talking about but they haven't done.

Todd Orston:                   Right. Well, that's a legislative issue.

Pat Buonodono:              It is, that's a legislative issue.

Leh Meriwether:             Well, they didn't define.

Todd Orston:                   Yeah that's right.

Pat Buonodono:              Yeah.

Leh Meriwether:             So, does that mean we need to get her elected to a position so she can work on this?

Todd Orston:                   We need her at the firm. Can we?

Pat Buonodono:              (Laughs)

Leh Meriwether:             (Laughs)

Todd Orston:                   I mean if you want we'll support you, but...

Pat Buonodono:              Oh, yeah no not interested, (Laughs)

Todd Orston:                   (Laughs)

Leh Meriwether:             Alright we'll just have to use your connections to get them to fix that.

Pat Buonodono:              Okay. So, if you're paying the mortgage for your family, and obviously you're not living with them but you're paying for the home your children are living in-

Todd Orston:                   So it's sort of like in lieu of the child support?

Pat Buonodono:              In lieu of. Yes.

Todd Orston:                   Basically? Okay. You're covering the mortgage, not going to make you pay the mortgage and the full load on child support.

Pat Buonodono:              Exactly.

Todd Orston:                   Okay.

Pat Buonodono:              And then there's a parenting time deviation. So, here's where you get into the shared custody. If you're close to 50/50 custody, which many states now have as a presumption but Georgia hasn't gotten there yet.

Todd Orston:                   So this is what schedule C that we were talking about sort of was intended to do but they couldn't reach agreement on.

Pat Buonodono:              Right. The mysterious schedule C. So, we leave it to the discretion of our judges, which I think in Georgia's okay because I thank a lot of our judges.

Todd Orston:                   Yeah.

Pat Buonodono:              And so, at this point we don't have a parenting time formula. I don't know if it'll ever happen. But you can request this parenting time deviation a lot of time with your kids. Because you're bearing the expense of providing them with a place and utilities and food and clothes and all that good stuff.

Leh Meriwether:             I think for the most part the judges try to do the right thing.

Todd Orston:                   And I agree with you, and I'm not just jumping on the band wagon of saying “I think a lot of the judges”, but I do. And I think a lot of the judges get it.

Pat Buonodono:              Mm-hmm (affirmative)

Todd Orston:                   And, so when you are presenting them the right way, with the right information that shows that you are bearing a larger portion of the load, responsibility I mean, they will take that into account.

Pat Buonodono:              Yes.

Todd Orston:                   Yeah.

Pat Buonodono:              I think so.

Leh Meriwether:             You know what? I thought one of the reasons I do like the new online calculators is you can submit it to the judge and it's right there. Because one of the struggles that I've seen people have in court is they'll have number of very fair deviations. Like, “Well I'm paying the life insurance and I've got dental insurance and vision insurance.” And you have a hearing and you get the child support worksheet back from the judge a couple days later, and he didn't include any of those as the deviation.

Leh Meriwether:             I know he has a discretion but sometimes the judge just has so much that they're trying to process but somehow that got lost. I've had some judges say “Oh, you know, we filed a motion to reconsider a couple times.” And the judge will be like “Oh, I did say I was going to put that in there, sorry.” But the nice thing about the worksheets you submit is it's there. It's right there, it's in their system and they can pick that and any changes to it.

Pat Buonodono:              Right, and on schedule E you can request the deviation and there's a spot for the judge that only the judge can access. To change the amount or override it or deny, so.

Leh Meriwether:             Okay. Yeah, that's really nice.

Pat Buonodono:              Yes. So, then we go on to extraordinary medical expenses. And if you look at the statute, it says “Of the child or parent”. So, if you have health issues, you have an extraordinary, you know. If you're very ill and you're paying a lot of medical bills then you can ask for that deviation. Also if you have to spend that money to take care of your child.

Todd Orston:                   Which is kind of interesting because if it's your own medical expenses you are treading a fine line between are you asking for alimony, you know what I'm saying? What you're saying is I have a condition and I'm spending X amount of money, so I'm using a lot of my money that I do have from other sources, to treat myself. I can now ask for an upward deviation from the other party because I have a greater financial need?

Pat Buonodono:              Yes but that money has to be for the care of the child.

Todd Orston:                   I understand, but I think everyone in the room understands people don't maintain a bank account for the money they're spending on a child.

Pat Buonodono:              Right.

Todd Orston:                   And what they spend on other things. It all goes into a bank account. So, if somebody is going in saying “Hey, I have medical conditions. My expenses are higher to treat my condition. I know you're supposed to pay 1,000 dollars but, judge, I really need 1200 because I need some additional money to help take care of the kids.” Isn't there an argument that, “Well, that's really going to help with my medical expenses."

Leh Meriwether:             Well, now I'm going to interrupt here. Because if it's the custodial parent that's got the child and has the medical condition could they put that as a deviation?

Pat Buonodono:              Yes.

Leh Meriwether:             Okay, they can.

Pat Buonodono:              They can.

Todd Orston:                   And that's what I'm referring to. As opposed to the payer who is like "I have a medical condition, so a lot of my income is going to treat my illness. I know it says 1,000 dollars but, judge, I can pay maybe six or 700 because I need to buy my medicines."

Pat Buonodono:              Right. And so, it works both ways.

Todd Orston:                   Right.

Pat Buonodono:              And technically yeah, maybe you could look at it like in a word of alimony. I think in this day and age alimony is mostly rehabilitative.

Todd Orston:                   Yeah.

Leh Meriwether:             Mm-hmm (affirmative)

Pat Buonodono:              And so, that would be limited, where this would be there as long as you're ill.

Todd Orston:                   Yeah.

Leh Meriwether:             Hmm.

Pat Buonodono:              There are extraordinary education expenses which are things like private school. If the child is at a boarding school then you're paying for, you know, what it costs to house them and their books and other expenses.

Leh Meriwether:             And that's not talking about college. That's just talking about-

Pat Buonodono:              Yeah we're talking about-

Leh Meriwether:             Up to high school.

Pat Buonodono:              Elementary through high school.

Todd Orston:                   And also I would say it's not a forgone conclusion. Just because you as, let's say the primary custodial parent decide that "I'm going to put our kids now in private school." Doesn't mean that the judge is going to accept that and work it into the calculation, right?

Pat Buonodono:              That's correct. Yeah, absolutely.

Todd Orston:                   Cause then court could say, “Well that's your choice, but I'm not going to obligate, and that's significant obligation. I'm not going to obligate the other parent to pay for that."

Pat Buonodono:              Right, and there's actually a case from two years ago. I can't remember the name of the case, I'm sorry about that. Where a judge specifically said "If you want to put your children in, you're getting child support. If you want to put your children in private school then you pay for that out of your child support."

Leh Meriwether:             You know, cautionary tale here. I've been in the courtroom when one party was up there asking for a deviation for private school and went off how the public school systems in that county were bad. The judge's wife happened to work in the public school system, so that did not go over well.

Todd Orston:                   Really?

Pat Buonodono:              (Laughs)

Leh Meriwether:             And that deviation was not granted.

Todd Orston:                   I can't imagine how.

Leh Meriwether:             (Laughs)

Pat Buonodono:              (Laughing) Imagine that.

Todd Orston:                   (Laughs)

Pat Buonodono:              I don't want my kids going to public school!

Todd Orston:                   Yeah! Yeah.

Leh Meriwether:             So, I don't think he said anything publicly about it I just knew that judge.

Todd Orston:                   Yeah.

Leh Meriwether:             I'm like “Oh, that's not going to go well."

Todd Orston:                   Yep (Laughs)

Pat Buonodono:              (Laughs) Lets see. So, special expenses of child rearing. This is everything but the kitchen sink, right? I've had people list prom dresses before on child support worksheets.

Leh Meriwether:             I have never had that. Prom dresses?

Pat Buonodono:              Yeah, prom dresses, you know-

Todd Orston:                   I've seen that class rings.

Pat Buonodono:              Class rings.

Todd Orston:                   You know, year books.

Pat Buonodono:              Year books.

Todd Orston:                   That's right.

Pat Buonodono:              And then there's always “We were band parents and we spent almost as much as college tuition [inaudible 00:21:18] for band."

Todd Orston:                   But what's interesting is that isn't there a percentage of the child support that automatically goes to help pay some of those cost?

Pat Buonodono:              Yes. Did you want to save that for when we come back?

Leh Meriwether:             Wow, she's good.

Todd Orston:                   She is good.

Leh Meriwether:             She's good. She's got to come on next too.

Todd Orston:                   I would go so far to say a lot better than you.

Leh Meriwether:             (Laughs)

Pat Buonodono:              (Laughs)

Leh Meriwether:             (Laughing) Up next we're gonna talk about what that presumption in the existing child support that's being paid. How much of that is supposed to go to those special expenses such as extra curriculars and how much can you ask over that number. We're going to talk about that and low income and high income deviations.

Leh Meriwether:             Welcome everyone I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on the new talk 106.7. If you want to read more about us you can always check us out online at atlantadivorceteam.com.

Leh Meriwether:             Well today we've been talking about child support. In particular deviations. At what point can a judge change the basic child support obligation set forth by the presumptive, I should say, child support obligation set forth by the legislature. And we're diving in to a little bit of the... deviance.

Pat Buonodono:              (Laughs)

Todd Orston:                   That's a different show.

Leh Meriwether:             (Laughs) We can have a whole show on that. I don't think it would be okay for radio but, I won't go there. (Laughs) So, where we left off was, you know we get this question all the time. Someone says “Well what about extra curricular activities?” Shouldn't he or she have to contribute to them and the response typically is “Well a portion of the child support is supposed to go to that.” So, what is that?

Pat Buonodono:              Seven percent of the basic child support obligation comes from those types of expenses that people are claiming as special expenses of child rearing. So there's a part of it built into schedule E that actually calculates that seven percent and only that portion of your basic child support obligation that's over that seven percent would go toward this deviation.

Leh Meriwether:             So you put those numbers in and it does that calculation for you, right?

Pat Buonodono:              It does the calculation for you.

Leh Meriwether:             So you put in a certain number ad lets say the seven percent equaled 150 dollars, and yours happened to be 170 dollars, it would automatically take out the 150 and the only deviation would be 20 bucks.

Pat Buonodono:              Mm-hmm (affirmative), that's correct.

Leh Meriwether:             And sometimes people will fight over that. When they don't even realize. They'll start fighting before they ask themselves “How much of a difference is this really going to make in my child support?"

Pat Buonodono:              Right, exactly.

Todd Orston:                   I'll tell you where I've seen the fight. It's where people aren't educated about that seven percent. They're asking, “Well I need help with all these other expenses.” And it's like hold on one second. It's 170 dollars, so how about 20? “No, I need this amount of help.” And it's like alright, well you need to read the code. You need to understand what the law requires in and allows.

Leh Meriwether:             Mm-hmm (affirmative). And sometimes that comes out of mediation.

Pat Buonodono:              Yes it does.

Leh Meriwether:             Yeah.

Todd Orston:                   At least it should.

Leh Meriwether:             (Laughing) Okay, so then what are the other areas of deviation?

Pat Buonodono:              Okay so there's if you have a child who's in foster care and you're trying to get your child back, you're working a permanency plan. If you are trying to rebuild your life and get a job and be stable so your children can come home and live with you. Then, you'll get a deviation.

Leh Meriwether:             Oh, okay.

Pat Buonodono:              Because the judge isn't going to make you pay a huge amount of child support when you're trying to just get to the point where you can afford an apartment to have your kids come stay with you.

Todd Orston:                   Yeah the court doesn't want to throw hurdles up that's going to interfere with basically reunification with a child.

Pat Buonodono:              Exactly, mm-hmm (affirmative). So, after that there's just the non-specific deviations. This is anything you want it to be. (Laughs)

Leh Meriwether:             (Laughs)

Todd Orston:                   The kitchen sink clause.

Pat Buonodono:              We'll just use it as a non-specific deviation. Okay... You do, on schedule E, have to explain your deviations. There are questions there. Is it in the best interest of your child? Is it going to make it difficult for the custodial parent to be able to pay the amount? Are the parties going to be able to meet the basic subsistence levels and provide for the basic needs of the child? Those are the questions. You have to answer them in detail on schedule E because the court of appeals spent about three years throwing back every other case saying “We don't have any findings of fact here.” And that's your place to put your findings of fact on the child support worksheet.

Todd Orston:                   And again I want to repeat that just because you have a good imagination-

Leh Meriwether:             (Laughs)

Pat Buonodono:              (Laughs)

Todd Orston:                   And you can come up with something that you'd like to propose to the court should be a deviation doesn't mean the court's going to accept it.

Pat Buonodono:              Right.

Leh Meriwether:             Yeah. So, the court can reject it. So the better the explanation, the more detailed you are sometimes, the more likely the courts going to accept that deviation at that point. But, without a doubt the courts going to reject it if there's no explanation.

Pat Buonodono:              They should. They don't always (Laughing).

Todd Orston:                   Right, well of course. But then at that point they're at the very least, they may even disagree with the rational behind making your request in the first place, but if it's not spelled out, the justification, then they should be expecting that the court of appeals I probably going to kick it back anyway.

Pat Buonodono:              Right.

Leh Meriwether:             So, the standard is "Is this deviation in the children's best interest?"

Pat Buonodono:              Yes and the findings of fact are required to be included in the court order, so.

Leh Meriwether:             It's got to be in there. Alright. Let's talk about, you mentioned before a deviation. I think in the first segment, for parenting time.

Pat Buonodono:              Yes.

Leh Meriwether:             Or, not parenting time. Travel deviation. You have to travel.

Pat Buonodono:              Expenses, mm-hmm (affirmative).

Leh Meriwether:             To see your children there's a deviation. But there's caveats to some of that because if the court grants that deviation and then you don't actually spend that money.

Pat Buonodono:              Yes.

Leh Meriwether:             The other side can come back to court very quickly.

Pat Buonodono:              Yes.

Leh Meriwether:             And say that you gave them a 500 dollar a month deviation. They haven't seen our kids in six months.

Pat Buonodono:              Right.

Leh Meriwether:             And then the court can reverse it. And I think it says the court shall award attorneys fees too.

Pat Buonodono:              Yes. So, we find this a lot when people say “Oh, let's do shared custody.” And then they see their kid one weekend a month or not at all. And so the custodial parent has the right to go back to court and say “We'd like reconsideration. He's not exercising his parenting time. And so I'm bearing all the expense of raising the children.” And yes, you can get your attorneys fees from doing that.

Leh Meriwether:             So, important thing to remember. Don't ask for something that you don't really plan on exercising.

Pat Buonodono:              Yes.

Leh Meriwether:             Because not only are you going to have to come back to court and pay the full child support, but you've also got to pay the other side's attorneys fees.

Todd Orston:                   And on top of that you may be creating a situation where coming back again and trying to convince the court that you're ready to be a more active parent. You may have burned that bridge.

Pat Buonodono:              Yes.

Todd Orston:                   The court may be like “I gave you that chance, you squandered it. You didn't do what you said you were going to do. Why should I trust you now? No, we'll stay with the limited parenting schedule."

Pat Buonodono:              Right. So, I mean it's just an unfortunate fact that very often people try to used shared custody so they don't have to pay child support.

Leh Meriwether:             Yes.

Pat Buonodono:              Because the parents can agree that there's no child support that's going to be exchanged. So, sometimes it's a hard lesson to learn but don't do that. (Laughs)

Todd Orston:                   (Laughs)

Leh Meriwether:             (Laughs) Alright well let's talk about low income deviations.

Pat Buonodono:              Okay. Georgia used to have a self support reserve so that child support could not overwhelm them based on their low income, their low earnings. But, it was like a set level and I can't remember exactly what it was but say it was 1,100 dollars a month. And then one of the judges went “Well, what if it's 1,101 dollars a month?” Does that change everything? All the sudden they have to pay 300 dollars a month in child support that they didn't have to pay before and so our legislature did away with it.

Pat Buonodono:              So what we have instead is this low income deviation. So you can, you know, if extreme financial hardship results from your child's court order, that you're required to pay, then you can ask for a low income deviation. Extreme financial hardship is what the court will look at and they'll look at your income, your standard of living, different things like that. Are you making money under the table, things like that.

Todd Orston:                   And is it a reasonable, going back to standard of living, is it a reasonable standard that you have set? We've joked about this before and said “My third Porsche is very expensive."

Pat Buonodono:              Yes! (Laughs)

Todd Orston:                   And the beach house is just killing me! So I can't pay a lot of child support.

Pat Buonodono:              Yes. So, yes it has to be reasonable. The thing about this law is that it used to read that the defendant had to request. Only the defendant could request it. Which made things difficult for child support services. Because the defendants didn't know about that. So, we changed the law a few years ago so that even child support services can request a low income deviation. The other party can suggest it. Or even the judge can just say “This case is right for a low income deviation."

Todd Orston:                   That's great. It makes sure that things don't fall through the cracks simply because someone is not educated about the law.

Pat Buonodono:              Exactly.

Leh Meriwether:             And I mean, it protects that parent too because one of the things the courts has to consider is “What are the living conditions that the children are going to be in when they go and visit that parent?” They don't want one parent living in a nice home, and the other one living in a cardboard box.

Pat Buonodono:              Right, exactly.

Leh Meriwether:             So that's part of the reason why the court has built in this low income deviation. At least that's been my understanding and part of the reason why it was in there.

Pat Buonodono:              Right. They have to be able to provide a safe and secure place for the children to be.

Leh Meriwether:             So, up next we're gonna get into what is the high income deviations? I know Todd loves high income deviations. (Laughing) Especially for some of these celebrities.

Todd Orston:                   (Laughs) You don't want me to pull out that soap box.

Leh Meriwether:             (Laughs) So we're going to get into that. We're going to talk about how do courts handle split parenting. How does child support calculate in those situations? And we're going to go into a few other details on child support worksheets.

Leh Meriwether:             Todd, while we're on a break let's take a moment to speak just with our podcast listeners.

Todd Orston:                   Great idea Leh. First, thank you for listening. If you're a client of ours, thank you for taking the time to educate yourself. It really helps us help you.

Leh Meriwether:             And I wanted to thank those that recently took a moment to review our podcast. We really appreciate it. If you feel like you're gaining a value from this show, please take a moment to post a review. The reviews help others find the show which allows us to help even more people.

Todd Orston:                   And if you're not sure how to post a review, our web masters put together a simple explanation on our web page. You can find it at mtlawoffice.com/reviewit that's M as in Mary, T as in Tom, lawoffice.com/reviewit.

Leh Meriwether:             Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on the new Talk 106.7. If you want to read more about us you can always check us out online, atlantadivorceteam.com.

Leh Meriwether:             Well we've been diving deep today into child support. Well, last week we talked about child support basics. This week we're getting into the deviations. The points at which the court can consider deviating from the presumptive recommended amount of child support laid out by the legislature. We've been getting into specific low income deviations, deviations for medical expenses, educational expenses, but we have a few more to get to. So, let's start with there's been a recent change in the law. I don't know if this is necessarily a deviation. Or is it a deviation?

Todd Orston:                   You're going to have to give us a little bit more to work on here, Leh.

Leh Meriwether:             (Laughs)

Pat Buonodono:              Are you talking about low income?

Todd Orston:                   I can read your mind, but Pat maybe doesn't have that power.

Leh Meriwether:             (Laughing) No, the change about the expenses of a party.

Pat Buonodono:              Yes. The non-custodial parent's expenses may be the basis for a deviation. A low income deviation. As well as their ability to pay the presumptive amount of child support. However, they did add something in that no deviation in the presumptive amount of child support shall be made. Which seriously impairs the ability of the custodial parent to maintain minimally adequate housing, food and clothing for the child being supported by the order and to provide other basic necessities. So, it's kind of a balance that the courts are having to find between "We don't want to give this guy-" Or, see bad presumption on my part, the non-custodial parent is not always the father. But to give the non-custodial parent such a heavy burden of child support that they can't live. But at the same time, you have to balance that. Well, you're not thinking about the needs of the kids here.

Todd Orston:                   Mm-hmm (affirmative)

Pat Buonodono:              And if the whole family, you know, if the custodial parent is also low income, then these people are struggling to provide for their kids. So, the court has to balance the amount that are being ordered.

Todd Orston:                   And worked into that would also be the use of certain terms which are a little loosey-goosey. Like “minimally adequate”.

Pat Buonodono:              Yes.

Todd Orston:                   Like, what does that mean? Isn't that going to sort of-

Pat Buonodono:              Do you have power on? (Laughs)

Todd Orston:                   (Laughing) Yeah, right? In the eyes of the beholder. What might be to one judge minimally adequate, another judge might look at it a little differently.

Pat Buonodono:              Yes.

Todd Orston:                   You know, so in other words, I think this creates this gray area where judge can sort of play in this area to really figure out what's going to be in the children's best interest?

Pat Buonodono:              Right.

Todd Orston:                   And I can determine, yeah maybe that's not minimally adequate housing, and maybe I have to look at these expenses or this or that to really come up with a number that's going to work for everybody involved.

Pat Buonodono:              Yes, and you know, I go back to my child welfare kind of experience and I'm like, you know, these people are living in a house with a dirt floor. But their children are fed, they're groomed, they're clothed and the kids are doing fine. So, they're maintaining that standard.

Todd Orston:                   Yeah.

Pat Buonodono:              For the children.

Leh Meriwether:             I think that, and correct me if I'm wrong, but it's not in the statute about, well okay these are the specific things you can't consider or anything like that.

Pat Buonodono:              No.

Leh Meriwether:             But it's been my experience what the court looks at is certain core things. Like shelter, food, transportation for a job. And when I say transportation, going back to Todd's example it's not a Porsche, it's perhaps a Honda Civic or something like that. Insurance to make sure you've got medical things covered, and clothing. Those five sort of core things. If you come in and say “Well judge I've got to make my credit card payments every month and I'm spending 800 dollars a month on my credit card payments.” I've seen judges say “Well, maybe you should talk to a bankruptcy lawyer.” Cause I'm not going to give you a...

Pat Buonodono:              Right. Or maybe you should get another job.

Leh Meriwether:             Yeah (Laughs)

Todd Orston:                   Yeah! I mean, right. I've seen judges say "I'm sorry that you have debt, but you also have children."

Pat Buonodono:              Yes.

Todd Orston:                   And I can tell you right now that across the board courts are going to prioritize children and their needs.

Pat Buonodono:              As it should be.

Todd Orston:                   Right.

Pat Buonodono:              (Laughs)

Todd Orston:                   Against credit card debt and other things like that.

Pat Buonodono:              Yes.

Leh Meriwether:             Now, on the flip side you may have someone who had a decent paying job, I had this case before, they had a massive heart attack. This was before the recent change, that healthcare law, this was a long time ago. He couldn't get insurance. When he did get insurance, they didn't cover his heart condition because they considered that a pre-existing condition.

Pat Buonodono:              Right.

Leh Meriwether:             So he was spending 1500 dollars a month dealing with his heart. Unfortunately it was contested, which really frustrated me but they didn't want to give him a deviation for that.

Pat Buonodono:              Wow.

Leh Meriwether:             The judge ultimately did because the judge was like “Well, I think it's in the child's best interest for his father to be around.”

Pat Buonodono:              (Laughs)

Todd Orston:                   (Laughing) Not just around the child, just around period!

Leh Meriwether:             Yeah, alive! Yeah, alive to spend time with his son.

Todd Orston:                   That's right.

Leh Meriwether:             So his son can spend time with his father, I should say.

Pat Buonodono:              And so, if you have a sudden involuntary loss of income like that, I don't know if people know, but you need to get to court and file for modification. Don't let huge arrearage accrue, because you're going to owe it no matter what. The judge can't dismiss that. What they can do, though, is the law says if you have an involuntary loss of income and you go in and you file for modification the modification will be retroactive to the day you filed.

Todd Orston:                   Right.

Pat Buonodono:              So, get to court if you've lost your job or your healths suffering and you can not work for a period of time. You just need to get in front of a judge as soon as you can.

Leh Meriwether:             There was actually a case law on that issue was confusing and arguably conflicting at one point.

Todd Orston:                   Where basically it was that it was not retroactive to the date of filing but the court could forgive the arrearage amount going back to the date of filing, but the new child support would apply as of the date-

Leh Meriwether:             Going forward.

Todd Orston:                   Going forward

Leh Meriwether:             When the new order is issued.

Todd Orston:                   When the new order is issued, right. So, yeah, anyway.

Leh Meriwether:             Thankfully the judges aren't doing that anymore.

Todd Orston:                   Right.

Pat Buonodono:              Yes.

Leh Meriwether:             I've been finding that they're doing the right thing.

Todd Orston:                   I agree.

Leh Meriwether:             Because if someone did lose their job, it's not that they didn't want to pay child support, they just couldn't!

Pat Buonodono:              Right, especially if you go back to 2008, 2009.

Leh Meriwether:             Right.

Pat Buonodono:              Things got a little dicey there for a while. But, anyway.

Leh Meriwether:             Alright.

Pat Buonodono:              Things are better now.

Leh Meriwether:             Yes.

Pat Buonodono:              (Laughs)

Leh Meriwether:             Thankfully, let's hope they stay that way.

Pat Buonodono:              So you want to talk about high income?

Leh Meriwether:             Yes!

Pat Buonodono:              High income is anything over 30,000 dollars a month of combined income of the parents. That's where the calculations end. But, the court can provide a deviation so the child support amount can go higher.

Todd Orston:                   Just to be clear, when we say that that's where the table ends-

Pat Buonodono:              Yes.

Todd Orston:                   Or, basically the table that we've referred to a couple of times. It will go from a zero income down to 30,000.

Pat Buonodono:              Yes.

Todd Orston:                   And then they'll have the number of children going across the top and that's where all of the information regarding different obligation amounts comes in. But it does stop at 30,000.

Pat Buonodono:              It does stop at 30,000 and I'm sure that there's some extreme cases where people have much higher income than that. So it's at the discretion of the court. Do you make a decision about how much more they're going to require that person to pay.

Todd Orston:                   And we've joked about this and we've done shows where it significantly exceeds and whether that is reasonable and I'm not going to say Leh and I see totally eye to eye but I guess I can at least say I have much stronger views-

Leh Meriwether:             No, I think I agree with you on what you were saying it's just that I can also see someone justifying their position.

Todd Orston:                   Yeah.

Leh Meriwether:             But they have to justify it.

Todd Orston:                   Yeah, but exactly. Going to what we're talking about, and without jumping on that soap box, you're right. If there is a true justification it might be reasonable.

Pat Buonodono:              But I really need that third Porsche.

Todd Orston:                   Yeah right exactly.

Pat Buonodono:              (Laughs)

Leh Meriwether:             But that's what I drive the kids around in.

Todd Orston:                   When you hear about a 60,000 a year, 80,000 a year, 100,000 dollar a year child support obligation-

Leh Meriwether:             Or 60,000 dollars a month.

Todd Orston:                   Or a month, that's right.

Pat Buonodono:              Oh, goodness.

Leh Meriwether:             Yeah.

Todd Orston:                   And you're like “Oh, really? Are you buying the Porsche for the children? Do they just get a car at four years old? Alright, great."

Leh Meriwether:             (Laughs)

Pat Buonodono:              (Laughs)

Leh Meriwether:             There's not a whole lot of guidance out there, as far as-

Todd Orston:                   It is a little bit wild west. I agree.

Pat Buonodono:              Yes.

Leh Meriwether:             So, people tend to bring an economist and there's actually some financial experts that you can just say judge based on the lifestyles of the two parties, where they're living, and to balance that lifestyle you should do this deviation.

Pat Buonodono:              Yes.

Leh Meriwether:             Alright, last thing, we're almost out of time. Split parenting, how do they handle that?

Pat Buonodono:              Okay, split parenting is when one of the children lives with one parent and the other one lives with the other parent. You just do a worksheet for each parent as non-custodial parent for the child that's living with the other parent. So, that's pretty simple actually.

Leh Meriwether:             Then you just offset the two?

Pat Buonodono:              Yes.

Todd Orston:                   So, in other words if for two kids, let's take a mom-dad situation. Dad is the primary of one, mom is the primary of the other. Her obligation for the one would be to pay would be 500. His obligation would be 1,000. Then it would be a 500 dollar offset and that would what just pays to mom

Pat Buonodono:              Right, that's exactly right.

Todd Orston:                   Okay.

Leh Meriwether:             Alright, well unfortunately we're out of time, again! Wow. Pat thanks so much for coming on the show.

Pat Buonodono:              You're welcome.

Leh Meriwether:             You're a wealth of knowledge.

Pat Buonodono:              (Laughs)

Leh Meriwether:             You keep me on my toes, that's for sure. Hey everyone, thanks so much for listening and if you want to go back and listen to any of this part, you're like “Oh I need to hear Todd make fun of Leh again.” Or something like that-

Todd Orston:                   Well you can go to any one of our shows, then.

Pat Buonodono:              (Laughs)

Leh Meriwether:             But you can find us in most podcast directories. You can find us on YouTube. You can search for divorce team radio or Meriwether and Tharp in most podcast directories you'll find this show and you can go listen to it if you're struggling with child support. Give us a call, we'll be there to help out. Till next time, thanks again

Speaker 4:                        This audio program does not establish an attorney-client relationship with Meriwether and Tharp.