During its 2017 term, the Nevada State Legislature repealed several Nevada child support laws. The Legislature, however, did not adopt new laws to take the place of those statutes. Instead, the Legislature established a Committee to Review Child Support Guidelines and directed that committee to make recommendations to the Nevada Division of Welfare and Supportive Services of the Department of Health and Human Services for the Administrator to consider and adopt as Nevada’s new child support regulations.
After more than two years, on October 31, 2019, the Administrator adopted the suggested regulations and sent them for filing with the Secretary of State, making the effective date of the new laws February 1, 2020.
Here are just some of the important things to know about the new regulations:
WHERE CAN THE NEW LAW BE FOUND?
Some child support laws, such as the law that governs when a party may seek a review and modification, remain in the Nevada Revised Statutes (NRS) under Chapter 125B. The new laws, however, will be found in the Nevada Administrative Code (NAC) at Chapter 425.
WHAT IS THE BIGGEST CHANGE FOR MOST PEOPLE?
The biggest change that most people will notice is that child support will be calculated differently in orders issued on or after February 1, 2020. Where Nevada laws previously used a flat percentage of a parent’s income to determine child support, the new regulations offer a progressive rate structure based on the number of children involved in the case.
Another significant change, especially for higher wage earners, is that the new regulations have abolished the presumptive maximum caps that used to exist. A parent making a million dollars per year will no longer have a presumptive cap of $1,165 per child, per month.
The new regulations also contain a low-income chart that can be used by the court if the court deems that a parent is limited on his or her ability to pay the guideline amount given that parent’s “total economic circumstances.”
WHAT ARE THE VARYING CHILD SUPPORT PERCENTAGES UNDER THE NEW CHILD SUPPORT GUIDELINES?
(All numbers based on Monthly Gross Income)
For One Child:
0 – 6,000 is 16 percent
6,001 – 10,000 is 8 percent
10,001 and above is 4 percent
The prior law was 18% flat, subject to caps.
For Two Children:
0 – 6,000 is 22 percent
6,001 – 10,000 is 11 percent
10,001 and above is 6 percent
The prior law was 25% flat, subject to caps.
For Three Children:
0 – 6,000 is 26 percent, subject to caps.
6,001 – 10,000 is 13 percent
10,001 and above is 6 percent
The prior law was 29% flat, subject to caps.
For Four Children:
0 – 6,000 is 28 percent
6,001 – 10,000 is 14 percent
10,001 and above is 7 percent
The prior law was 31% flat, subject to caps.
For More than Four Children (for each additional child):
0 – 6,000 add an additional 2 percent of such income.
6,001 – 10,000 add an additional 1 percent of such income.
10,001 and above add an additional 0.5 percent of such income.
Based on this new structure, it seems that the child support obligation for most middle-income earners will be significantly lower than under the previous law.
ARE THERE ANY CHANGES TO JOINT PHYSICAL AND SPLIT CUSTODY CALCULATIONS?
There is no change to how joint physical custody child support is calculated. There is, however, a change to how split custody (for example, a parent has primary physical of one child, but the parents share joint physical of another) is calculated. The new method of calculating split custody child support is to calculate the non-custodial parent’s obligation in the primary physical custody arrangement based on the number of children in that arrangement; then calculate the obligation in the joint physical custody arrangement (again based on the number of children); and finally, take the difference in the two numbers and the person with the higher obligation pays the other the difference.
HOW IS GROSS INCOME CALCULATED?
The new regulations have specifically defined what is to be considered “gross income.” The definition is very expansive, and even includes things such as “alimony.” It seems that this section of the regulations may have the potential to generate litigation in cases where a parent is a business owner or where one parent is receiving alimony.
CAN THE GUIDELINE AMOUNTS BE CHALLENGED?
1. Presumption and Rebuttal
The guideline amounts are “presumed” to meet the basic need of children. This means that the guideline amount can be rebutted under certain circumstances. One way of challenging the guideline amount is to prove that the needs of a particular child are not met by the guideline; or conversely, to prove that the needs of particular child are exceeded by it.
2. Unemployment and Underemployment
Another way to challenge the guideline amount is to challenge a parent’s income directly and allege that the parent is either unemployed or underemployed without good cause. If the court determines that a parent is unemployed or underemployed without good cause, the court must then consider the specific circumstances of that parent. The regulations provide 13 specific factors the court must analyze when looking at those circumstances.
3. Adjustment Factors
The third, and probably most familiar way, of challenging the guidelines is to request a deviation (now sometimes called an “adjustment” under the new regulations) based on eight specific factors. These factors are similar to the previous statutory factors, with some notable changes.
One notable change is that the deviation factor for the child’s portion of a parent’s health insurance coverage premium is gone. That deviation may be argued under a separate part of the regulation now, but the language in that section appears to be somewhat ambiguous.
Another notable change is that the deviation factor for childcare costs is also gone; although the regulations now include a separate section that requires the court to consider and make an “equitable division” of such reasonable costs.
Yet another significant change is that the previous statutory language allowing for a deviation for transportation expenses, if the custodial parent moved away and the non-custodial parent has remained, has been significantly modified. The new regulation appears to give much more discretion to the judge, stating that the judge may consider the “cost of transportation to and from visitation.” This is significant because it now appears that a non-custodial parent might be ordered to bear the cost of transportation even though they opposed the out-of-state move.
Perhaps the biggest change to the deviation/adjustment factors is the new language that the court may consider “the obligor’s ability to pay.” The previous statutory language allowed the court to consider only the “relative income of both parents.” So, this factor also gives the court much wider discretion when formulating a child support obligation.
With all of these factors, as with the previous law, the court must set forth findings of fact as the basis for the deviation.
CAN THE PARTIES STIPULATE TO DEVIATE FROM THE NEW CHILD SUPPORT GUIDELINE AWARDS?
Parties may stipulate to deviate from the guidelines provided the court accepts the stipulation and the following are set forth within the stipulation:
The current gross monthly income of each party
A statement of what the parent’s obligations would be under guidelines
Notice to both parties that if review is sought for an authorized reason, the court will calculate pursuant to law at time of review
A certification of the person receiving support that he or she is not receiving public assistance (and hasn’t applied for it)
A certification by both parties that the needs of child are met or exceeded by stipulated amount
DOES CHILD SUPPORT AUTOMATICALLY DECREASE WHEN EACH CHILD EMANCIPATES?
In orders with two or more children, the order may allocate specific amounts of the child support to each child. If the order does this (for example, $1,000 child support is specified to be $500 per child), then the child support for the emancipating child automatically ends when the child turns 18 or 19, if still in high school.
If there are multiple children and the order does not allocate child support for each child, then child support must remain as is, regardless of a child’s emancipation, until a parent files a motion to modify the child support based on the emancipation.
DOES THE CHANGE IN THE LAW ALLOW ME TO SEEK A MODIFICATION OF MY EXISTING CHILD SUPPORT ORDER?
Probably not. The law, alone, is not a change of circumstances for purposes of seeking a modification. The modification of a child support order must still be done pursuant to NRS 125B.145.
If you have any questions relating to these new child support laws or your existing child support order, call Jack Fleeman of Pecos Law Group for a consultation.