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Episode 94 - 2018 Changes in Georgia Child Support Law Image

10/22/2018 11:08 am

In July of 2018, the changes to the Georgia Child Support Guidelines went into effect. In addition, September of 2018 marked the month that Georgia did away with their Microsoft Excel Child Support Calculator and moved to an online calculator. Some of the changes to the guidelines will have a dramatic impact on certain kinds of cases, including cases where a Court has to 'impute' income to someone whose income has been suddenly eliminated or reduced. When calculating income, the Court's are no longer to use the Child's Best Interest Standard as its only standard. Rather, they are to make a financial analysis of the regarding the parent's relative ability/inability to pay the presumptive amount of child support. Tune in to hear all of the details.

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 & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. Here, you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and even from time to time, tips on how to take your marriage to the next level. If you want to learn more about us, you can always call, or visit us online: atlantadivorceteam.com.

Todd Orston:                   I got to tell you, the taking off of the glasses was very dramatic. It was, "This is Leh and Todd, and we're ready to educate you." That was nicely done.

Leh Meriwether:             It's a little different recording today.

Todd Orston:                   It was. It is.

Leh Meriwether:             Maybe we should share that now, we are putting our ... We are-

Todd Orston:                   Take your time. Don't hurt yourself.

Leh Meriwether:             We are taking the radio show-

Todd Orston:                   Audio and video,

Leh Meriwether:             ... To YouTube.

Todd Orston:                   Okay.

Leh Meriwether:             So, we're recording it live, but it'll be up on YouTube later, so we're actually not live-streaming it.

Todd Orston:                   I was about to say, what does that mean? Of course we're recording it live. I'm not really sure what that meant. We are off to a really not good start.

Leh Meriwether:             That's what happens when we shoot from the hip some days.

Todd Orston:                   Okay, we're live while we're recording this, so you're in luck. We're gonna breathe. All right, but that's not what we're doing a show about.

Leh Meriwether:             No, we're not doing it about recording radio shows.

Todd Orston:                   No, alive. So, what are we gonna be talking about today?

Leh Meriwether:             The new changes to the child support guidelines here in Georgia.

Todd Orston:                   Yep, yep. We've done shows about child support before, and as with a lot of the topics that we spend time talking about, from time to time we have to revisit. The reason for that is sometimes just because it's time, it's an important topic, an important issue that needs to be discussed, and sometimes because there have been actual changes in the law. That's really the reason we're doing this show today. There have been, relatively recently, some changes in the law, so it's important that we revisit it so that listeners, when they start to educate themselves, they are actually thinking about things based on the current state of the law, and they're using the right tool, and applying the right laws.

Leh Meriwether:             And since we are publishing the YouTube after this goes live ... We're alive, nevermind.

Todd Orston:                   Moving on, Leh, moving on.

Leh Meriwether:             We probably should make it clear that the law is constantly changing in child support, so you may watch this, if you're not listening to it while we're playing it on the air, and you're listening to it sometime after the fact, the law may have changed since we've recorded this.

Todd Orston:                   There could be a change while we're doing this show.

Leh Meriwether:             That's true.

Todd Orston:                   How crazy would that be?

Leh Meriwether:             I actually had a case where the judge made a ruling and I won. On the way back to my office, I got an emailed order where he changed his ruling, because a case had come out in the middle of our trial, and it resulted in him having to. It wasn't he was trying to be mean or anything. Literally, the new case changed the law.

Todd Orston:                   Did you file a motion for no taksie backsies? I'm sorry, Judge-

Leh Meriwether:             Is that new? No, I didn't.

Todd Orston:                   I read about that somewhere.

Leh Meriwether:             Okay. Is that a Latin term? Taksie backsies?

Todd Orston:                   It's taksie backsie. It is Latin.

                                         So, child support. I think a good way to start, let's explain again Georgia child support. The reason I think this is important, and why a refresher is a good way to start, even though we've done these shows, even though there's a lot of content online, I can't tell you how many times people will call, and I'll start talking to them and I'll say, okay, child support, have you given that some thought? And they're like, "Oh yeah, I've already run some calculations. I applied 20% of the gross income of the father to ..." So, I have a child support number, and I have to say, now hold on, pump the brakes a little bit, because what you're doing is applying a law that really hasn't been in effect since 2007. There has been a major change. We now have a calculator, and it's a whole new way, a whole new method of calculating child support.

                                         So, let's spend this first segment, or at least some portion of it, explaining the law, just generally speaking.

Leh Meriwether:             Yeah. The law here in Georgia, and there's many states that have converted to this, how they calculate like this, where it's an income-sharing approach, and what they do is, they take the income of both parties, they combine that to a combined gross income. Now, there's some states that do net income. That's not what we do here in Georgia. We do a combined gross income. Then that yields a number. If Mom makes $5000 a month, and Dad makes $5000 a month, this is gross, before taxes, and you plug that in, that makes $10000. Then you take it to what's called the Basic Child Support guidelines, the BCSO. That's actually in the worksheet ... That's what we don't have anymore is the worksheet we had been doing. That's one of the changes.

                                         But in past, there was an Excel spreadsheet, so it would take that $10000, and it would say ... I don't remember what the number is off the top of my head, because that sheet is massive. I did not memorize it. So, it might say ... Well, for $10000-

Todd Orston:                   Combined gross income.

Leh Meriwether:             ... Combined gross income, with two children, would be $1500 a month. I don't know if it's that high, but ... I don't think it's that high. Anyways.

Todd Orston:                   No, no.

Leh Meriwether:             Then, you would take that, since it was 50/50, meaning as far as Mom and Dad made the same amount, then Dad would pay half of that to Mom-

Todd Orston:                   Yeah.

Leh Meriwether:             50%.

Todd Orston:                   You're talking about the pro rata percentage, and the pro rata percentage is, let's assume using your example, $5000, $5000, combined that's $10000, each party's percent portion of the combined gross is in that case 50%.

                                         If it was, let's say, $6000 and $4000, it would be a 60%/40%, and that pro rata percentage carries along in the child support worksheet and it applies to the guidelines and becomes very important. So, when we're taking the combined incomes and looking at each person's share or percentage, that percentage becomes incredibly important. That's what you're talking about with the pro rata share.

Leh Meriwether:             Yes.

Todd Orston:                   Okay.

Leh Meriwether:             Let's say it was $1000 a month, then you would split it. He would be responsible for 50% of that-

Todd Orston:                   Because you're applying the pro rata percentage?

Leh Meriwether:             Right. 50% of the total number. Now, that changes. That can go up and down from there. That's sort of the basic level, and then it changes based on who's paying health insurance and dental insurance, and some of these are mandatory changes, some of them are at the discretion of the court, so you also have ... What's the other ... Gosh, there's so many.

Todd Orston:                   Well, you have low-income deviations, high-income deviations. You have deviations-

Leh Meriwether:             Well, another mandatory one is childcare.

Todd Orston:                   Childcare. Right.

Leh Meriwether:             Childcare related to-

Todd Orston:                   Work.

Leh Meriwether:             Yes. That goes in. That's mandatory.

Todd Orston:                   Yep.

Leh Meriwether:             That goes in there.

                                         Now, you may not have ... Let's say there isn't childcare, but you've got extra curricular activities, that's discretionary. Meaning, the court does not have to put it in there, and there's a portion of the child support that is presumed to go towards the extra curricular activities, and it's something like 7.5%.

Todd Orston:                   It's something. It's about 7%. You're right.

Leh Meriwether:             Yeah.

Todd Orston:                   So, what that means, just to clarify a little bit, because we'll have people, they'll call and they'll say, "Well, hold on one second, yes I'm getting the general child support, but what about activity costs? What about the soccer? Or what about ..." whatever it might be. What we have to explain is that, there's already built into that child support number, about seven-point-something percent of that number, is supposed to be used by the custodial parent, the one who is receiving child support, to pay for some of those expenses. Now, if the expenses exceed, then that's one thing that can be brought to the court's attention and an additional deviation upwards could be requested in order to help pay the costs of those expenses.

Leh Meriwether:             And then, there's also upward deviations, because that BCSO, the child support chart, it stops at $30000. Once you hit that, it doesn't keep going, but then the court can make a discretionary call and award more child support for someone that makes more. When you have a situation where the combined gross income is more, then it's $30000 a month.

Todd Orston:                   Right.

Leh Meriwether:             We had a show talking about that where-

Todd Orston:                   People were asking for ridiculous amounts.

Leh Meriwether:             $60000 a month.

Todd Orston:                   Yeah. $100000.

Leh Meriwether:             In child support, a month.

Todd Orston:                   Yeah. A month.

Leh Meriwether:             Yeah, that's pretty-

Todd Orston:                   Makes you want to go out and have a child with somebody very wealthy. "I love you, Honey, but ..."

Leh Meriwether:             We're just kidding.

Todd Orston:                   Yeah. So look, the child support, the income share model, very different than what it used to be. The good thing about it is, it's very formulaic. The old way of calculating it, there was a percent range and you would apply it to the gross income. Here, everything, it's a big formula. You take gross income, gross income, plug it in, plug in some other data, and it's going to spit out a number.

Leh Meriwether:             Right.

Todd Orston:                   It's going to tell you what child support should be.

Leh Meriwether:             Yes.

Todd Orston:                   Actually, it's not what it should be. If there's not a valid discretionary, or required deviation, then the court must follow the guidelines. The court must accept that number, and will demand that the numbers are correct. In other words, if it says child support is $1000, and you and your spouse look at each other and you're like, "Well, just pay me $800," no. Court's going to look at you and say, unless there's a valid deviation, it's $1000. That's the legal requirement.

Leh Meriwether:             Yeah, and I've seen judge ... I've been in court when judges rejected a settlement proposal that did not follow the guidelines. It wasn't a valid basis for the deviation, and the court rejected the settlement proposal and the parties had to go back to the negotiation table.

Todd Orston:                   Yep.

Leh Meriwether:             All right. Up next, we're going to get into what actually changed with the child support guidelines, and how it's different now, and how those changes can impact several people that are going through the child support system trying to get child support.

                                         Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listing to Meriwether & Tharp Radio on the new Talk 106.7.

                                         We, today, are talking about child support changes. And by the way, if you want to read more about us, you can always check us out online at atlantadivorceteam.com.

                                         But we're going into the recent changes to child support guidelines that came out ... Most of the changes came out in July, and then there is one change that just occurred September 30th, so not too long ago. Just a few days ago. We're going to just rapid-fire talk about them. We're just going to give a short summary, and then we're going to dive a little deeper into what they could mean for people that are trying to get child support.

                                         All right, allowance for multiple worksheets is one of them. Final rule, language added. I'm like, what is the final rule? Changes to imputed income. Health insurance clarification. Additional considerations regarding deviations.

Todd Orston:                   We're done.

Leh Meriwether:             We're done.

Todd Orston:                   Yeah.

Leh Meriwether:             Todd, maybe you should explain what those are?

Todd Orston:                   All right. All right. Well, we do have some time. All right.

                                         Let's talk first about the use of multiple worksheets. Let me start by explaining what a worksheet is, because we're talking about, again, in the first segment, we talked about the methodology behind calculating child support. Understand that what's been created as part of the Georgia child support calculation is a worksheet. As you plug the information in, it automatically populates into a worksheet, and there are different, basically exhibits, to that worksheet. Different parts. A, B, D, and E. That worksheet is going to have all of the information that you've plugged in, and it's going to then calculate for you the child support amount. Typically, in a case, you are going to present the court with one worksheet. You're going to determine, based on whatever the factors are. If you have two children, it doesn't matter how old they are, when they are going to be emancipated, you're going to create one worksheet. It's going to, basically, create a child support obligation, and then basically you're done. If you have to come back and modify, that's what you do. If one child is emancipated, graduates from high school, and then it's only one child, you're going to come back, another worksheet would be created at that point, and you would have a new child support number based on one child.

                                         Now, what we're talking about is, instead of just presenting the court with one worksheet, you can actually, under certain specific circumstances, you can actually present the court with multiple worksheets to reflect, basically, changes that might occur in the future. That's what we're talking about.

Leh Meriwether:             And the limit was, I think, if you had someone that was about to like age out within two years. And in the past, like what you said, you could only do one ... Well, if the parties were in agreement, you could do multiple worksheets.

Todd Orston:                   Yeah.

Leh Meriwether:             I'd never had a judge turn that down. But, if the parties weren't in agreement, the judge only did one worksheet, even if there was a child that was 16 years old, or 17 years old. So, in a year, that meant that the obligor, the person paying child support, was going to have to come back to court to modify the child support when that child aged out. And in Georgia, that's 18, or when they graduated from high school, with a cap of 20, in case they have to stay in high school a little bit longer, or they've been held back.

Todd Orston:                   And that's a burden for the person, that's a burden for the court. Like you said, there are times, and I've had those situations also, where, by agreement, we know that there is going to be a change forthcoming, and we say, okay, well this is the child support worksheet when it's two children, but guess what? In a year, this child is going to graduate, so instead of having to come back, here's another-

Leh Meriwether:             Let's save everybody money and hassle, and let's deal with this right now.

Todd Orston:                   That's right. Let's just deal with it now. So now, the law actually recognizes it. As opposed to before, it was just a practice, meaning, attorneys would do it when ...

Leh Meriwether:             By agreement.

Todd Orston:                   By agreement. Now, it's basically reflected within the law, and there is recognition that, hey, that makes sense, because it's going to help people reach agreements, or it's, at the very least, going to help the court limit the number of cases and the number of times a case has to come back to court.

Leh Meriwether:             There had been a previous change to this one, where they allowed multiple worksheets, but it was kind of confusing and caused problems with the courts. They weren't quite sure what they meant, so the legislature came back out and said, "All right, we're going to clarify all of this."

                                         You may have a situation where you've got a 14 and a 16-year-old, so in those situations, it's permitted for the court to say, "I'm just going to do two worksheets so you all don't have to come back in a year." But I think that was ... The limiting factor was that it had to be within two years.

Todd Orston:                   Yeah, and I think it's also important to note that what we were talking about just a moment ago is doing this to avoid the need for a modification. Incurring the cost, the time, the effort. But that doesn't preclude you from coming back to court to modify. The door is still open for modification, but again, if you lock in based on certain circumstances, it may limit or, to some degree, interfere with modification efforts. But again, there is not a blanket preclusion from ever coming back to court if there are changes of circumstance.

Leh Meriwether:             Yeah, and the court actually does have the ... They can reject it. You can still come to court with the multiple worksheets, but it's within the court's discretion to accept or deny them, because there may be situations where, in the middle of the divorce, somebody lost their job, and the court is going to be like, "Well, I'll do the worksheets now, but I'm only going to do one, because I'm thinking, in a year, the obligor is going to get his job back, or her job."

Todd Orston:                   Yeah.

Leh Meriwether:             All right. Let's go into the final rule.

Todd Orston:                   Dun, dun, dun.

Leh Meriwether:             Really, what the final rule is ... Part of the reasons for the changes in the child support guidelines in Georgia was, the federal government was trying to get some sort of, I don't know if parody is the right word, but they were trying to get some similarity-

Todd Orston:                   Adoption of a single law that would apply throughout the land.

Leh Meriwether:             Right. But they can't force that on people, because well-

Todd Orston:                   It's a state-specific issue.

Leh Meriwether:             Right. We won't get into constitutional law and all of that, the establishment clause or that. That's a whole other ...

Todd Orston:                   That's a whole other show. Not just an episode of this show. I mean a different channel show.

Leh Meriwether:             It's a [crosstalk 00:18:10] show.

Todd Orston:                   Right. Exactly.

Leh Meriwether:             Constitutional law.

                                         All right, what they did was, there is a federal office of child support enforcement, and they want the courts to sort of look at ... Not sort of. They want the courts to keep analyzing the current support guidelines and update them and change them based on changes of the Basic Child Support Obligation chart. That thing changes from time to time. They change the numbers. If the economy changes, those numbers can change. So, what they think the average person of a certain income level spends for the support of a child. Those things are changed, but what the office of child support enforcement specifically wanted in there was the ability ... The court needed to analyze the ability of the non-custodial parent, the parent that did not have the children the majority of the time, the ability of them to pay child support. Because in the past, the court did not have to look at that at all. I'm not even sure there was actually room for the court to look at it.

Todd Orston:                   I don't think ... It's not a matter of they didn't have to. They didn't. The requirement did not call for any information to be provided regarding the budget and the ability to pay of the obligor. Now, what it is is, the federal government is saying, "Well, hold on one second. How realistic is that?" Someone is obligated to pay, and you're not looking at whether or not there are reasonable expenses that that person is incurring that might make it so that, hey, they have a job, that's great, but they're living in an alley somewhere because they can't afford a home.

Leh Meriwether:             Yeah, so they don't want the children just be with one parent, living in a nice home or a nice apartment, and then going to visit the other parent in a cardboard box, so they said, "All right, you've got to look at the obligor's ability to pay, because there are situations where the person, perhaps they receive disability and they really do have serious medical conditions, and between their housing costs and their trips to the doctor, there's barely enough money to buy groceries. And if they had to write a check even $100 a month to the custodial parent for child support, that could put them ...

Todd Orston:                   In a bad place.

Leh Meriwether:             In a bad place where they couldn't afford food, and they couldn't even afford food when the children came over to visit with them. So, being the federal office of child enforcement, they're like, "Well, we don't want to be putting people in jail that are behind, because they're trying to stay alive." Basically, it was said to the legislature, "You've got to analyze this," so they put in a rule that the court should ... Actually, it's not should. Shall consider the basics of subsistence needs of the parents. It's an obligation of the court, it's not discretionary.

Todd Orston:                   Yeah. And again, it makes sense, because what the court wants is ... At the end of the day, what the court wants is a child or children to be taken care of.

Leh Meriwether:             Right.

Todd Orston:                   Pushing someone financially into basically a no-win situation where they don't have enough money to live, that's not ultimately going to help a child. Financially pushing that person off the proverbial cliff, that's going to hurt that person, which in effect, the ripple effect, is it's going to then impact that person's children.

                                         I actually like the rule, because what it's saying is, come on, let's look at reasonable factors, let's look at and consider reasonable information to make sure that this is a winning kind of arrangement. And by winning, I mean that everybody involved wins.

Leh Meriwether:             And up next, we're going to find out what the courts can do when considering imputing income to someone who doesn't have a job.

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

                                         Today, we're talking about child support. Particularly, we're talking about the recent changes in the child support law. There were several changes made this year. Some will impact people dramatically, others not so much, others in other situations, it's more a matter of convenience. But definitely the ability for the court to accept multiple worksheets is a big help if a child is going to age out in a couple years. But one of the things that has always been a hot item is imputed income. Imputed income is where someone ... Some people, they're just "deadbeats". That's the term, I'm putting this in air quotes right now. They've been heard to say, "I'll quit my job and live in a box before I pay you child support." I've literally had those cases where someone was foolish enough to put that in writing.

                                         So, what happens is, the court has the ability in those situations to say, "Sir, or Ma'am," I've seen both, "You have the ability, you have the intelligence to go out and earn this much money, and I'm going to put your child support obligation at that."

Todd Orston:                   Yeah. Imputation is, basically the way I like to refer to it, it's a judicial assumption. It's basically the court saying, "Okay, I don't know how much you are earning, or maybe I know you're earning nothing right now, but I'm going to now make an assumption that you are either unemployed voluntarily, or you are voluntarily underemployed," meaning a doctor who just loves to dance and says, "I'm going to make my money dancing on the street making $10 a day," and the court can go, "You'd better dance a lot, because I'm going to assume that you are still a doctor, that you could still earn at a doctor's level, and therefore, I'm imputing income at a doctor's income."

Leh Meriwether:             Right.

Todd Orston:                   All right. Imputation is basically to prevent people from trying to take advantage and gain the system by saying, "I'm going to avoid a support obligation by limiting or eliminating my income."

Leh Meriwether:             Right. And in some situations, you had cases where someone had parents that could support them, so they said, "Well I'm just ... I'm not going to work." Or, they get remarried-

Todd Orston:                   Or inheritance.

Leh Meriwether:             Inheritance.

Todd Orston:                   They inherit and suddenly-

Leh Meriwether:             "I don't have any income. I'm living in a million-dollar home, but I don't have any income, but somehow I'm paying for my car that is worth $120000, but ..."

Todd Orston:                   And if I were a game show host, I would say, "Survey says!" Nope.

Leh Meriwether:             All right. One of the changes in the child support guidelines was really a clarification what was going on. In the past, the court just said that the court or the jury could ... That they could look at reliable evidence of a person's income or ability to earn. They've changed it and they clarified it greatly, so they've added a lot more, very specific things that the court can look at.

Todd Orston:                   Which, before you read it off ... Which, again, this list that you're about to read, these are things that attorneys have been arguing in court for a long time.

Leh Meriwether:             Right.

Todd Orston:                   So, to people who practice, like us, a lot of this is not new. What it is, it's nice to see it set forth in the law, because basically, it gets some of the requirements and gets things out of that grey area where it's like, well, what can the court look at? What should the court look at?

                                         Basically, I believe that this is sort of a clarification intended to say to the courts, and to attorneys, and to anybody representing themselves, and anybody else who's just bored ... No, but it's basically saying, okay, here you go. It's not an exhaustive list, but here is a list of things. This is what the court should be looking at when determining issues of imputation.

Leh Meriwether:             Here's a list: Look at the parents' assets. Like I said, an example for the house, residence. Or maybe assets, it could be a retirement account, an inheritance. But their residence, their employment and earning history, their job skills, educational attainment, literacy, age, health, criminal record, and other employment barriers. That actually is new. Employment barriers. We will talk about that, as well as the criminal record in a second, because that was not in there. That's a big change. Record of seeking work, as well as the local job market. And that clarification is big, too, because I've seen judges ... I don't know if they ignored it per se, but they didn't consider the job market change. The availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case.

                                         We're actually going to have someone come on the show here soon, and that's one of his jobs. He's a vocational expert. He actually gathers all that data so that you could argue that, perhaps a parent is underemployed, or they're actually making the best they can make. So, I'm looking forward to that show.

Todd Orston:                   All right, going through some of these just very quickly, because like you said, we're going to have a show dedicated to this issue. Things like educational attainment and work history, and things like that, it cuts both ways. Keep in mind. This is not focused only on the payor spouse. The obligor. Because we are now in a situation where it's an income share model, meaning the income of both parties is considered, then imputation can work both ways.

Leh Meriwether:             Right.

Todd Orston:                   Sometimes, a lot of times, we'll see this with someone who is a stay-at-home mom, where kids are now 10, 11, 12 years old. They have a Ph.D., they worked, they made a good amount of money, and they're like, "Well no, my kids need me and I need to be home."

Leh Meriwether:             Right.

Todd Orston:                   Under certain circumstances, maybe the court will accept that. We've had cases where it's like, "Yes, you are needed at home, focusing on the kids."

                                         There are other times, and there are other judges where the court may not accept that and may say, "You know what? Based on your education, based on your work experience, you can and should be out there working," because keep in mind, going back to the child support calculation, if you're not working, then it can really impact dramatically, the child support calculation, because we were talking about a $5000, $5000, combined $10000, and it's a 50% pro rata share that gets applied. What happens if you have no income? Then it's a 100%-0% and that $1000, where the payor would have paid $500, or 50%, in that situation, where it's 100%, they're paying $1000. It's a double-

Leh Meriwether:             Although, the number will go down, remember? Because we-

Todd Orston:                   Well, yeah. You are correct.

Leh Meriwether:             We went from $10000 a month to $5000 a month.

Todd Orston:                   You're right. You're right. If it's a $5000, right. If that income doesn't change, then the number will be different, because it's a combined gross of $5000, not $10000.

Leh Meriwether:             Right. But now you're paying 100% of the obligation.

Todd Orston:                   But you're paying 100% of that. And I've actually seen situations where, maybe the income wouldn't have been that great anyway, and then you do the calculation and going from 50/50 or 60/40, down to zero, or maybe a 10%/90%, even though the combined gross is lower, they're still paying more than if they had shared at the higher level.

Leh Meriwether:             Yes. Yeah. Every situation is a little bit different. So, that has been a big change.

                                         One of the other big changes, the one that we mentioned, criminal law-

Todd Orston:                   Yeah, the barriers.

Leh Meriwether:             So, years past, if you were ... Here's a good example. There was actually a case on this. There was a Georgia Supreme Court case that said that, if you have gotten a DUI, so you are now in jail, that you cannot seek a modification of child support, because even though you're not earning income, they said that was a voluntary loss of your job, because you voluntarily drank the alcohol, got in the car, and got the DUI, so no, you're not going to get a ...

Todd Orston:                   You can't use that as a material change in circumstance.

Leh Meriwether:             Right. And now, the code says that if a parent is incarcerated, the court shall not ... It's not even discretionary. Shall not assume an ability for earning capacity based on the pre-incarceration, so before they went to jail, wages or other employment related incomes. Now, the courts are saying, "No, we can't. If they get a DUI and they lose their job," or it happens in the middle of the divorce case, they get a DUI and lose their job, and they're now in jail, the court is like, "Well, I know he ..." I can see both sides of the argument. It's really rough, because on one end, you've got somebody who was irresponsible, misbehaving, but they can't make any money. They're in jail. They lost their job. There's nothing ... They're not earning anything to pay child support.

Todd Orston:                   Use the doctor, for an example, who forget about not wanting to be a doctor and dance, but let's assume the doctor gets into some legal trouble and-

Leh Meriwether:             Loses his medical license.

Todd Orston:                   ... Loses a medical license. That is a barrier to earning money at the level of a physician. Therefore, the court can, and actually shall keep that in mind and take that into consideration, because look, the reality is, that person can no longer pay at that level, while it's-

Leh Meriwether:             That's an employment barrier, because he doesn't have his medical license anymore.

Todd Orston:                   But before we go to the break, I'm going to say one thing, keep in mind, that's not the end of the analysis, because if that doctor has $5 million sitting in an account and is like, "Oh, I can't be a doctor anymore, and my child support should reflect that," the court can also say, "But hold on one second, you have a whole bunch of money over here, so therefore, no, we're not going to cut it down to zero because your income is zero. We're going to look at those other assets."

Leh Meriwether:             Right. And I've even seen situations where somebody had a huge retirement account, and the court did a child support qualified domestic relations order and took out a lump some child support out of that person's retirement account.

                                         Hey, up next, we're going to dive into the other changes to the new child support guidelines. 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 webmaster has 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 & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. This whole show, we've been talking about child support. Particularly the changes that recently occurred to the child support guidelines. I think at the end of the last segment, I said the new child support guidelines. They haven't been new ... It was 11 years ago they were new. But they're made new almost every year. It seems like there's tweaks and constant changes, so we've been diving into them and we have a few left. Hopefully, we can get through them very quickly, not because they're not important, but they're not as big as the ones we first started off with, because we're going to do a couple hypotheticals.

Todd Orston:                   Are you saying I talk too much? Is that really what you're trying to say?

Leh Meriwether:             I was trying not to say it. I'm glad you said it, though. No, I think I'm the problem.

                                         All right. I think one of the biggest things that came out of this was, in the past, the child support guidelines said the court has to take into consideration what's in the best interest of the children.

Todd Orston:                   That was the standard.

Leh Meriwether:             That was the standard. At the end of the day, if the court is trying to decide whether to deviate from the Basic Child Support Obligation, what is in the best interest of the child? That was the standard. That's no longer the standard. The standard is, for a deviation, this is changing from the Basic Child Support Obligation, the standard is looking at the parent's relative ability and inability to pay the presumptive amount of child support. That has to be the basis for the deviation.

Todd Orston:                   That goes into what we were talking about before, where the court shall consider all these other factors relating to the actual ability of the parent to pay, because again, if you're focused only on, or if the focus is on the best interest of a child, obviously more money, hopefully less problems. We have more activities and clothes and food, and whatever, so if you're going to just say, "What's in a child's best interest?" Well, more money would probably help the child.

                                         But now, the court is basically saying, "Well, hold on one second, obviously we want to take care of the child and children, but we can't ignore the actual ability of the parent to pay."

Leh Meriwether:             There was a ... I want to say maybe three, four years ago, there was a class action lawsuit, I think it got dismissed, but it was basically all the fathers that kept getting put in jail. There was a child support amount levied against them that they couldn't pay to begin with, they immediately fell behind. These weren't deadbeat dads. These were dads that wanted to pay their child support, but the court just kept throwing them in jail, throwing them in jail. So, they'd get a job, they'd start paying, they'd get pulled in for contempt. "Well, you're still behind, you're going to jail," then they'd lose that job.

                                         These new guidelines are saying, "Hey, the court has got to take into consideration the ability of this parent to actually pay, because the process of throwing them in jail made things worse."

                                         All right, so that's that. The other quick changes were the changes to the health insurance requirements that is in there, that allows parents to now use Medicaid or PeachCare to satisfy the healthcare needs of the child, because the court couldn't mandate that. And the court continues to have the discretion to order that either, or both parents obtain separate health insurance policies for the children. And then there's the low-income deviations. We kind of already talked about that, it gets a little more specific, and that the court may consider the non-custodial parent's basic subsistence needs and all of his or her reasonable, they have to be reasonable, expenses.

Todd Orston:                   Which again, that's a huge turnaround when dealing with child support, because I can tell you that the advice that we gave forever was, your budget really doesn't mean anything.

Leh Meriwether:             Yeah.

Todd Orston:                   Now, we have to start saying, your budget may mean everything.

Leh Meriwether:             Yeah. Now, I want to put a cautionary tale there, that doesn't mean that you can go around, say, "Well, my mortgage is $4000 a month, my car payment for my brand new Porsche is $1500 a month. I've got a clothing allowance." Those, the court will say, "That's not reasonable."

Todd Orston:                   Well, and that's ... The focus should be on the words "may consider".

Leh Meriwether:             Yes.

Todd Orston:                   We are not saying that, "Well, look, my fourth Porsche, I've got to tell you ... My costs are through the roof." That's not reasonable, like you said. The court will consider it, and will consider it to be a ridiculous position to take, but it's, what may or can the court consider when determining these child support amounts? And whether a deviation is reasonable. As long as you have a reasonable car payment, reasonable house payment, reasonable everything, you can show the court, "Judge, look at my budget. I'm not doing anything unreasonable-"

Leh Meriwether:             I have to have a car to get to work. I have to have a house for when the kids come see me. That sort of thing.

Todd Orston:                   ... "And at the end of the month, I don't have two nickles to rub together, and you're telling me that I should pay, basically, $300 or $400 more than I think I can pay. Okay, fine, just tell me when I can check into jail."

Leh Meriwether:             Right.

Todd Orston:                   Anyway. All right. Let's get to an example.

                                         Oh, let's talk first, very quickly, and make sure that we're clear that there is now an online worksheet.

Leh Meriwether:             Right. In the past, there was an Excel spreadsheet that you could download from the child support office here in Georgia, but they've done away with that. I don't remember the exact reason, but I think we know someone that we could bring on the show that will explain it to us. That will be another show.

                                         But starting September 30th of 2018, all litigants must present their child support worksheets to the court via the new online worksheets, and they're located ... Oh gosh, I don't know if I can read this. I think the website is csconlinecalc, C-A-L-C, .georgiacourts.gov. So, if you go there, that will get you to the-

Todd Orston:                   And call us. If you can't find it, we can very quickly give you the address so that you can get to it. Yeah, and if I had to make an assumption, it's probably that there have been numerous version, because we've dealt with this where we go to court and we start to crunch the numbers, or we present our worksheets and the other party is like, "Well, my numbers are different." And then we look, and we're like, well, yeah, your version is from like three years ago. It's already been updated like three times, so my guess is, this is probably an effort to say, "You know what? This is where you get it, that way you know it's going to be the most updated form and it's going to be accurate."

Leh Meriwether:             I do want to do a hypothetical, but before I do, I want to give a couple announcements, because if I don't, we're going to run out of time.

Todd Orston:                   Sure.

Leh Meriwether:             It happens every time.

                                         If you're enjoying this show, you can actually post a review about us. The place to do it, if you're having trouble, like where to post reviews, we've set up a page on our website to help with that. It's mtlawoffice.com/reviewit. That's M as in Mary, T as in Tom, mtlawoffice.com/reviewit. If you're interested in watching this show on YouTube, it will be youtube.com/atlantadivorcelawyer. You can always find us there, too, in case you want to go back and watch part of the show, or watch us do our crazy hand motions as we talk. Todd, he's quite animated.

                                         All right. Let's do a hypothetical before we go.

Todd Orston:                   Sure.

Leh Meriwether:             Do we want to do Ron or [Tammy 00:42:15]? We only have time for one.

Todd Orston:                   You make the call.

Leh Meriwether:             All right. I'm going to do Tammy's then.

Todd Orston:                   Well, there you go.

Leh Meriwether:             Only because it's a little more interesting.

Todd Orston:                   Since we have about three minutes left, yeah, I think you should just make the call.

Leh Meriwether:             All right. We have a divorcing couple. Their name's Ron and Tammy. Tammy is the Director of Library Services, and she makes $52500 as a W-2 salaried employee. Tammy and Ron have a relationship full of ups and downs, and Ron can easily get caught up and upset when talking about Tammy.

                                         Tammy is known to be vindictive, and seems to want to do whatever she can do to bring Ron down. Ron tells you that Tammy ... Ron says that Tammy has always flaunted her sexuality, and he believes that, since the separation, Tammy is earning additional income working the Internet chat rooms talking with men, because she has mentioned that she is receiving tokens of affection from various men. Tammy has also bought a bright red Mercedes convertible. He cannot trace the funds toward the purchase of this vehicle from any accounts that have been provided in discovery. You believe that Tammy is hiding money. The base model Mercedes SLC that Tammy is driving is a $48000, based on your research.

                                         So, what do you do? In one minute.

Todd Orston:                   Tammy's a little vixen.

Leh Meriwether:             So, what do you do, Todd?

Todd Orston:                   Well, go out and buy yourself a Mercedes, right? Is that tit for tat?

Leh Meriwether:             No.

Todd Orston:                   No. All right. All right.

Leh Meriwether:             What do you do?

Todd Orston:                   Well, obviously, we're dealing with child support. We have a minute to talk about this. We're going to have to look at what her income is, but then we're going to look at spending. I can tell you right now, we're going to end up looking at credit card statements and bank records, and things like that, because you're right, a $48000 car, with that kind of income, doesn't make sense.

Leh Meriwether:             Right.

Todd Orston:                   Then we have to look to see whether or not there's an argument for imputation. Is she getting, on a regular basis, some amount of money from another source that we can ask the court to consider as a part of her income. If she got a single gift from someone, maybe not. If she gets, every year, gifts, then maybe so an imputation then becomes a reality in that case.

Leh Meriwether:             So, going back to the new child support ... The new guidelines, one of the first things, it says a parent's assets. A brand new, $48000 car would be an asset that the court can say, "Well, I'm going to add $48000, so your annual gross income is more like $100000, not $52000."

                                         Well, everyone, thanks so much for listening. That about wraps up this show, and we look forward to talking to you next time.

Speaker 3:                        This audio program does not establish an attorney/client relationship with Meriwether & Tharp.

 

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