The Deviation Factors of NRS 125B.080(9)
(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].
Part 3: Introduction and NRS 125B.080(9)(d)
NRS 125B.080(9)(d). The age of the child. There can be little argument that the cost of supporting a child varies with the child’s age. Raising an infant brings higher expenses which are associated with birthing, formula, diapers, etc. A toddler through pre-teen, however, may involve less expense. But when a child reaches the teens, the costs rise again. Some states have different child support awards for different ages. This, however, has not generally been litigated on a significant basis.
If a child’s parent’s divorce while the child is young, the child support received on behalf of the child may average out over life of child, but parents get divorced when their children are different ages. There is also an obvious relationship between this factor and day care expenses. Our legislature may wish to consider adopting a modified child support formula taking into consideration the specific age of the child.
The Deviation Factors of NRS 125B.080(9)
(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].
Part 4: Introduction and NRS 125B.080(9)(e)
NRS 125B.080(9)(e). The responsibility of the parents for the support of others. This factor does not limit the court’s discretion to base a deviation from the formula solely upon a parent’s responsibility for the support of other children; the court may consider parents, siblings or step-children. Thus far, however, serious consideration has only been given for prior or subsequent children of the obligor parent. For example, New Hampshire specifically provides that the cort “shall” take into account any step-children for which the party is responsible.
This is one of the more controversial factors for deviation from the formula and has been addressed by the Nevada Supreme Court on several occasions. Hoover appeared to some to indicate that, despite NRS 125B.080(9)(e), other children would not be a basis for deviation from the formula. The supreme court in Hoover, however, technically only objected to the lower court’s formalistic approach outside the guidelines of NRS 125B. In Scott, the court found that a deviation from the statutory formula, which reduced support payments of $793.43 per month for two children to $600.00 per month, was proper based on the payor’s responsibility for the support for others. One should keep in mind the supreme court’s warning in Lewis v. Hicks, however, that NRS 125B.080(9)(e) should be applied “cautiously” and deviations “should be the exception rather than the rule.”
This particular factor will most likely come into play in situations such as the following: An obligor parent, who is getting divorced from a second spouse, now has two families to support. Should the second family receive child support based on the payor’s full gross monthly income, or should the support be based on the payor’s full monthly income less the previously existing child support award? There are two major approaches being used to resolve this question: the “first mortgage” approach and the “equal treatment” approach. These competing theories will likely be debated forever, and an in depth review is beyond the scope of this article.
The “first mortgage approach” argues that the second family already had the burden of paying the first child support award and therefore enjoyed a standard of living based on less income. Using this approach, the first family should not have to endure a lower child support award because the payor decided to have more children with a spouse who was aware of the existing child support obligation. In other words, a payor parent should not be able to decrease his or her support obligation to an existing family by undertaking the obligation of having a subsequent family. By contrast, the “equal treatment” approach simply promotes the policy that all children should be treated the same and each should receive the same proportionate share of support.
The guidelines were intended “to provide a uniform predictable measure of child support, not a variant method where a child’s support can be reduced or increased by subsequent changes outside his or her family.” “Although both earlier and subsequently born children are innocent and have no control over their situation, the parent who brings children into the world knowing the existing prior obligation should not be entitled to an automatic reduction in child support.” Arkansas’ child support guidelines specifically provide that any existing child support obligations should be deducted from the income of the payor spouse.
The following are hypothetical situations which illustrate how this factor has been applied in the district courts in Clark County. When necessary, the parties in the following hypothetical situations will be designated as either P1 (the custodial parent) or P2 (the noncustodial parent).
In a current divorce action, P2 has one child and is obligated for the support of two children from a prior marriage; P2 earns $2,000 per month. With a pre-existing support obligation of $500.00 for the two children from the prior marriage (25% of $2,000.00), P2 now has an adjusted gross monthly income of $1,500.00 which yields a child support obligation to the “second family” of $270.00 (18% of $1,500.00).
The divorcing parents of four children have agreed that Wife shall maintain custody of three children while Husband shall maintain custody of one child; Wife’s gross monthly income is $1,000.00; Husband’s gross monthly income is $2,000.00. In situations, such as this, varying methods for determining child support obligation(s) may be used by the court. Results may vary depending upon the split-custody calculation method used by the court.
By one method, the court follows the child support formula in determining the child support obligation of each parent as if the child in the custody of the other was the only child at issue. The court then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay Wife child support in the amount of $580.00 (29% of $2,000.00) and Wife would be obligated to pay Husband child support in the amount of $180.00 (18% of $1,000.00). The net result is that Husband would be obligated to pay Wife child support in the amount of $400.00 ($580.00 – $180.00).
By another method, the court determines for each parent the total percentage amount of child support that would be due if all of the children were residing with the other parent, divides this percentage amount by the number of children at issue to determine the percentage of income to be paid per child, multiplies this percentage by the number of children being supported by the other parent, assigns the results to the respective parents according to the number of children each maintains, and then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay 21¾% (¾ of 29%) of his monthly income [which calculates to $435.00 in this situation] to Wife, and Wife would be obligated to pay 7¼% (¼ of 29%) of her income [which calculates to $72.50 in this situation] to Husband. The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).
By yet another method, the court determines for each parent the total formula amount of child support that would be due if all children were residing with the other parent, divides this amount by the number of children at issue to determine the amount of support to be paid per child, multiplies this amount by the number of children being supported by the other parent, assigns the results to the respective parents, and then offsets the sums each would owe the other. Applying this method to the above situation, Husband would be obligated to pay Wife $145.00 per month per child (29% of $2,000.00 = $580.00; $580.00 ÷ 4 = $145.00) for a total of $435.00 per month ($145.00 x 3), and Wife would be obligated to pay Husband $72.50 per month per child (29% of $1,000.00 = $290.00; $290.00 ÷ 4 = $72.50) for a total of $72.50 per month ($72.50 x 1). The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).
One must keep in mind, however, that the Nevada Supreme Court has prohibited the district courts from devising their own formulas. See Hoover and Lewis.
The Deviation Factors of NRS 125B.080(9)
(This blog series is from excerpts of the article written by Bruce I. Shapiro, a Las Vegas family law attorney with Pecos Law Group, titled “The Lost Factors of NRS 125B.080(9): Deviating From Child Support Guidelines, 12 Nevada Family Law Report 1 (Spring, 1997) and is used with permission of the State Bar of Nevada. The footnotes have been deleted from these excerpts. The full article can be viewed at: [link].