The Not Less Than Zero Rule

Not Less Than ZeroSometimes, the results produced by the Bradley Child Support Calculator seem counter-intuitive and you may wonder if the Calculator is “broken” and needs fixing. We have fielded a lot of questions from our subscribers following the 2012 introduction of the new “Not Less Than Zero” rule in Administrative Order 261.

The AO 261 Guidelines provide that if the parent with the higher child support obligation on Line F.3  pays the direct expenses of the child, then the higher obligated parent’s support obligation is reduced by a credit equal to a percentage of the parents’ combined total support obligation on Line D.3 (from  page 1).

The purpose is to reimburse the higher-obligated parent for paying a portion of the lower-obligated parents direct expense responsibility (which the lower obligated parent would normally pay using the child support payment from the higher obligated parent). Assume that Mom has custody of two children age 6-11 and Dad’s child support obligation is $32 per month on Line F.3 after the application of adjustments on page 2 (for $231 health and dental expenses, $43 income tax considerations, etc., etc.)

If Dad also pays the children’s direct expenses (clothing, education, activities, etc.), Dad gets a direct expenses credit of $371 (assumed to be Mom’s share of the direct expenses, based on 18% of a total monthly parental child support of $2,060), and Dad’s child support obligation becomes a negative $339 ($32 – $371) and Mom would pay him $371, but then you run into the “Not less than Zero” limitation. The NLTZ rule makes Dad’s obligation $0 and relieves Mom of the $339 payment to Dad to reimburse him for paying her portion of the children’s direct expenses.

Ordinarily, of course, Mom as the lower obligation (LO) parent would receive child support from Dad, and use the child support (and her own income) to pay all of the children’s direct expenses. However, AO 261 provides that the trial court can designate either parent to pay the direct expenses, creating the possibility that the direct expenses share of the LO parent is more than offset by the direct expenses credit given the HO parent when the HO parent is directed to also pay the direct expenses in addition to child support.  At the “eleventh hour,” the Advisory Committee was persuaded that LO parents (typically the Mom who has a lower income and residential custody) were not always to be trusted to actually pay the children’s direct expenses (preferring, perhaps, to buy alcohol, drugs or cigarettes), and therefore, it should be possible to shift the responsibility (in the judge’s discretion) to the HO parent to ensure that clothing was provided, etc.

That concern led to a situation where the lower obligation parent (the LO) might have to pay the higher obligation parent (the HO) some amount to reimburse the HO for paying the LO’s income-percentage share of the direct expenses, whereupon the “but not less than zero” limitation was proposed to protect a LO from ever having to reimburse an HO for a share of the direct expenses by refunding part or all of the child support paid by the HO.

Finally, three days before the “official effective date” of AO 261 (April 1, 2012) the revisions were sent forward to the Supreme Court as the best compromise attainable.

Note that the residency of the children, and their legal custody, are NOT the determining factors in these calculations.  Similarly, the incomes of the parents do not determine who pays child support.

About Brad Short

CEO : Bradley Software; Of Counsel at Short, Borth & Thilges, Attorneys at Law, LLC, Overland Park, Kansas. Born Birmingham, Alabama, December 27, 1941; admitted to bar,1966, Kansas and U.S. District Court, District of Kansas; 1975, U.S. Court of Appeals, Tenth Circuit; 1976, U.S. Supreme Court. Education: University of Colorado (B.A., 1963; J.D., 1966). Contributing Author, Practitioner's Guide to Kansas Family Law, Kansas Bar Association, 1997. Listed in: The Best Lawyers in America, Family Law, every year from 1987 through 2013. Member, Technology Advisory Committee, Kansas Judicial Council, 1991-1998. Member: Bourbon County, 1966-1977 (President, 1970-1971), Johnson County (Member: Ethics and Grievance Committee, 1984-1998; Family Law Bench/Bar Committee, 1984-), Kansas and American (Vice-Chair, Solo Practitioners and Small Firms Committee, Economics of Law Practice Section, 1984-1985) Bar Associations; Kansas Trial Lawyers Association, 1974-1984 (State Treasurer, 1975-76; Member, Board of Governors, 1974-1984). Fellow, American Academy of Matrimonial Lawyers, 1994-2013 . Practice areas: Family Law.
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