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COMMONWEALTH OF PENNSYLVANIA

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231 Pa. Code Rule 1910.16-6. Support Guidelines. Basic Support Obligation Adjustments. Additional Expenses Allocation.

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

 The trier-of-fact may allocate between the parties the additional expenses in subdivisions (a)—(e). Even when a basic support order is inappropriate under the facts of the case, the trier-of-fact may allocate between the parties the additional expenses.

 Except for the subdivisions (b)(4) and (e) expenses, the trier-of-fact shall calculate the parties’ proportionate share of the additional expenses after adjusting the parties’ monthly net income by the spousal support or alimony pendente lite obligation received or paid, and dividing each party’s adjusted monthly net income by the parties’ combined monthly net income. However, the trier-of-fact shall not adjust the parties’ monthly net incomes when apportioning the expenses in child support only cases.

 (a)  Child care expenses.

   (1)  The trier-of-fact:

     (i)   shall allocate reasonable child care expenses paid by the parties, if necessary to maintain employment or appropriate education in pursuit of income.

     (ii)   may allocate reasonable child care expenses paid by the parties when the trier-of-fact imputes an earning capacity to a party as provided in Pa.R.C.P. No. 1910.16-2(d)(4)(i)(D).

   (2)  The trier-of-fact may require that the obligor’s share be added to the basic child support obligation, paid directly to the service provider, or paid directly to the obligee.

   (3)  When a party is receiving a child care subsidy through the Department of Human Services, the expense allocated between the parties is the amount actually paid by the party receiving the subsidy.

   (4)  The party seeking allocation of child care expenses shall provide to the other party the expense’s documentation, such as a receipt or an invoice, promptly after receipt unless the service provider invoices the parties separately for the party’s proportionate share of the expense.

   (5)  The trier-of-fact shall have the discretion to not allocate expenses if documentation is not timely provided to the other party.

   (6)  Except as provided in subdivision (a)(7), the total child care expenses shall be reduced to reflect the federal child care tax credit available to the eligible party, regardless of whether the credit is actually claimed by that party, up to the maximum annual cost allowable under the Internal Revenue Code.

   (7)  If the eligible party is not qualified to receive the credit, the federal child care tax credit shall not be used to reduce the child care expenses subject to allocation between the parties.

  

   Example. Mother has primary custody of the parties’ two children and Father has partial custody. The parties’ respective monthly net incomes are $2,000 and $3,500. At the combined monthly net income of $5,500 for two children, the basic child support obligation is $1,567. As Father’s income represents 64% of the parties’ combined monthly net income, Father’s basic child support obligation is $1,003. Mother incurs monthly child care expenses of $400, and Father incurs $100 per month. The total child care expenses, $500, will be apportioned between the parties, with Father paying 64%, or $320. As Father is paying $100 for the children’s child care during in his partial custody, he would pay the remaining $220 to Mother for a total child support obligation of $1,223 ($1,003 + $220).

 (b)  Health Insurance Premium.

   (1)  The trier-of-fact shall allocate the health insurance premium paid by the parties, including the premium attributable to the party paying the premium, provided that a statutory duty of support is owed to the party or child covered by the health insurance.

     (i)   If the party paying the health insurance premium is the obligor, the obligee’s share is deducted from the obligor’s basic support obligation.

     (ii)   If the obligee is paying the health insurance premium, the obligor’s share is added to the obligor’s basic support obligation.

     (iii)   A health insurance premium allocated between the parties shall also include health insurance that is provided and paid by a third-party resident of a party’s household (e.g., step-parent) for a child who is the subject of the support order.

   (2)  The trier-of-fact shall not allocate an employer-paid premium or a premium paid for a party, person, or child to whom no statutory duty of support is owed.

     (i)   If the parties present evidence of the excluded premium’s actual amount—the amount attributed to a party, person, or child not owed a statutory duty of support—the trier-of-fact shall deduct the actual amount excluded from the total premium before allocating the health insurance premium between the parties.

     (ii)   If the parties do not present evidence of the excluded premium’s actual amount, the trier-of-fact shall calculate the excluded amount as follows:

       (A)   determine the premium’s cost per person by dividing the total premium by the number of persons covered under the policy;

       (B)   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; and

       (C)   the resulting amount is excluded from allocation.

  Example 1. If the parties are separated, but not divorced, and Husband pays $200 monthly for employer-provided health insurance for himself, Wife, the parties’ child, and two additional children from a previous marriage, 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 premium to arrive at 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, Husband’s percentage share would be added to his basic support obligation.

  Example 2. If the parties are divorced and Father pays $200 monthly for employer-provided health insurance for himself, the parties’ child, and two additional children from a previous marriage, 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 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 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 monthly for employer-provided health insurance for himself and the parties’ child. Mother pays $400 per month for her employer-provided health insurance that covers only herself. 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 monthly net incomes. 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 trier-of-fact shall ascertain a parent’s ability to provide medical support for the parties’ child 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 obligor bears the initial responsibility of providing the child’s health care coverage if it is available at a reasonable cost.

       (A)   ‘‘Reasonable cost’’ to an obligor shall be defined as an amount that does not exceed 5% of the obligor’s monthly net income and, when added to the basic child support obligation plus additional expenses the obligor is ordered to pay, does not exceed 50% of the obligor’s monthly net income.

       (B)   If the obligee is providing the coverage, the ‘‘reasonable cost’’ of the obligor’s share shall be defined as an amount that does not exceed 5% of the obligor’s monthly net income and, when added to the basic child support obligation plus additional expenses the obligor is ordered to pay, does not exceed 50% of the obligor’s monthly net income.

     (ii)   Unless the child’s health care coverage 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.

       (A)   The notice shall direct the employer to enroll the obligor’s child who is the subject of the support proceeding if the coverage is available at a reasonable cost to the obligor.

       (B)   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.

       (C)   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 child.

       (D)   If there is more than one employer-provided health care coverage option, the obligor shall select the coverage, 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’ child at a reasonable cost, the court shall order the obligee to provide health care coverage for the child 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 monthly net income.

     (iv)   If health care coverage is not available to the parties at a reasonable cost, the court may order the the party having primary custody 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 the parties’ respective monthly net incomes.

     (v)   Within 30 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 Pa.R.C.P. No. 1910.27(e). There shall be a continuing obligation to provide the other party and the domestic relations section with proof of any changes in coverage.

     (vi)   The trier-of-fact 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 (15 U.S.C. § §  1601 et seq.).

   (4)  If the obligor is paying for the health insurance, the obligee has no income or minimal income, and the obligor will bear 90% or more of the health insurance premium:

     (i)   the trier-of-fact may, as fairness requires, deduct part or all of the premium actually paid by the obligor to provide coverage for the other party or the child from the obligor’s gross income to determine monthly net income for support purposes.

     (ii)   If such a deduction is taken from the obligor’s gross income, the premium allocation as set forth in subdivision (b)(1) shall not be applied.

   Official Note

   Subdivision (b) does not apply to Medical Assistance. See 23 Pa.C.S. §  4326(l).

 (c)  Unreimbursed Medical Expenses. The trier-of-fact shall allocate the obligee’s or child’s unreimbursed medical expenses. However, the trier-of-fact shall not allocate unreimbursed medical expenses incurred by a party who is not owed a statutory duty of support by the other party. The trier-of-fact may require that the obligor’s expense share be included in the basic support obligation, paid directly to the health care provider, or paid directly to the obligee.

   (1)  Medical Expenses.

     (i)   For purposes of this subdivision, medical expenses are annual unreimbursed medical expenses in excess of $250 per person.

     (ii)   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.

     (iii)   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 trier-of-fact may apportion such expenses that it determines to be reasonable and appropriate under the circumstances.

   (2)  The trier-of-fact may impose an annual limitation when the burden on the obligor would otherwise be excessive.

   (3)  Annual expenses shall be calculated on a calendar year basis.

     (i)   In the year in which the initial support order is entered, or in any period in which support is being paid that is less than a full year, the $250 threshold shall be pro-rated.

     (ii)   The party seeking allocation for an unreimbursed medical expense shall provide to the other party the expense’s documentation, such as a receipt or an invoice, promptly upon receipt, but not later than March 31st of the year following the calendar year in which the final bill was received by the party seeking allocation.

     (iii)   For purposes of subsequent enforcement, unreimbursed medical bills need not be submitted to the domestic relations section prior to March 31st.

     (iv)   The trier-of-fact shall have the discretion to not allocate an expense if documentation is not timely provided to the other party.

   (4)  If the trier-of-fact determines that out-of-network medical expenses were not obtained due to medical emergency or other compelling factors, the trier-of-fact may decline to assess the expenses against the other party.

   Official Note

   If the trier-of-fact determines that the obligee acted reasonably in obtaining services that were not specifically set forth in the order of support, payment for such services may be ordered retroactively.

 (d)  Private School Tuition or Summer Camp. Other Additional Expenses. Expenses outside the scope of typical child-rearing expenses, such as private school tuition, summer camp fees, and other additional expenses as set forth in subdivision (d)(2), have not been factored into the Basic Child Support Schedule.

   (1)  Private School Tuition or Summer Camp. If the trier-of-fact determines that private school or summer camp is reasonable under the parties’ circumstances, the trier-of-fact shall apportion the expense to the parties.

   (2)  Other Additional Expenses. The trier-of-fact shall apportion an additional expense to the parties, if the trier-of-fact determines that the expense:

     (i)   is related to the child’s educational, extra-curricular, or developmental activities; and

     (ii)   is reasonable under the parties’ circumstances.

   (3)  The trier-of-fact may require that a party’s proportionate share of a subdivision (d)(1) or (d)(2) expense is:

     (i)   included in or excluded from the basic child support obligation;

     (ii)   paid directly to the service provider; or

     (iii)   paid directly to the other party.

   (4)  Documentation.

     (i)   The party seeking allocation of an expense shall provide the other party with the expense’s documentation, such as a receipt or an invoice, promptly upon receipt, but not later than March 31st of the year following the calendar year in which the party incurred the expense, unless the service provider invoices the parties separately.

     (ii)   For subsequent enforcement purposes, a party does not need to submit the expense’s documentation to the domestic relations section before March 31.

     (iii)   The trier-of-fact shall have the discretion to not allocate an expense if documentation is not timely provided to the other party.

 (e)  Mortgage Payment. The support 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 trier-of-fact shall assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise.

   (1)  If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee’s monthly net income (including amounts of spousal support, alimony pendente lite, and child support), the trier-of-fact may require the obligor to assume up to 50% of the excess amount in the obligor’s support obligation.

   (2)  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, and child support the obligor is paying), the trier-of-fact may downwardly adjust the obligor’s support obligation.

   (3)  This rule shall not be applicable after a final resolution of the outstanding economic claims in the parties’ divorce action.

   (4)  For purposes of this subdivision, ‘‘mortgage’’ shall include a first mortgage, real estate taxes, and homeowners’ insurance and may include a subsequent mortgage, a home equity loan, and other marital obligations secured by the marital residence.

Explanatory Comment—2004

   Subdivision (a), relating to the federal child care tax credit, has been amended to reflect recent amendments to the Internal Revenue Code, 26 U.S.C. §  21. By generally referencing the Tax Code, rather than incorporating current Code provisions in the rule, further amendments will be incorporated into the support calculation.

Explanatory Comment—2005

   Pa.R.C.P. No. 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. §  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. Subdivision (b)(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. Subdivision (b)(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. Subdivision (b)(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 trier-of-fact’s discretion based upon the circumstances of the case.

Explanatory Comment—2006

   A new introductory sentence in Pa.R.C.P. No. 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 either formula Pa.R.C.P. No. 1910.16-4 results in a basic support obligation of zero, the trier-of-fact may enter a support order allocating between the parties any or all of the additional expenses addressed in this rule.

   The amendment of 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.

Explanatory Comment—2018

   The amendments provide for an adjustment to the parties’ monthly net incomes prior to determining the percentage each party pays toward the expenses set forth in Pa.R.C.P. No. 1910.16-6. Previously, the Rules of Civil Procedure apportioned the enumerated expenses in Pa.R.C.P. No. 1910.16-6(a)—(d), with the exception of subdivision (c)(5), between the parties based on the parties’ respective monthly net incomes as calculated pursuant to Pa.R.C.P. No. 1910.16-2. This apportionment did not consider the amount of support paid by the obligor or received by the obligee.

   The amended rule adjusts the parties’ monthly net incomes, upward or downward, by the spousal support/APL amount paid or received by that party prior to apportioning the expenses. This methodology is not new to the Rules of Civil Procedure. In Pa.R.C.P. No. 1910.16-6(c)(5)(rescinded), the parties’ monthly net incomes in spousal support/APL-only cases were similarly adjusted prior to the apportionment of unreimbursed medical expenses. Likewise, Pa.R.C.P. No. 1910.16-6(e) considers the parties’ monthly net income after the receipt or payment of the support obligation for purposes of determining a mortgage deviation. As the new procedure adopts the methodology in former subdivision (c)(5), that subdivision has been rescinded as delineating the spousal support only circumstance is unnecessary.

   Lastly, the amendment consolidates Pa.R.C.P. No. 1910.16-6(b)(1), (2), and (2.1).

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; amended May 14, 2014, effective in 30 days on June 13, 2014, 44 Pa.B. 3233; amended March 12, 2015, effective in 30 days on April 11, 2015, 45 Pa.B. 1842; amended February 10, 2017, effective May 1, 2017, 47 Pa.B. 1123; amended June 23, 2017, effective on October 1, 2017, 47 Pa.B. 3744; amended December 28, 2018, effective January 1, 2019, 49 Pa.B. 170; amended August 17, 2021, effective January 1, 2022, 51 Pa.B. 5539. Immediately preceding text appears at serial pages (395637) to (395644).



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