THE 2019 PROPOSED CHANGES IN THE KANSAS CHILD SUPPORT GUIDELINES

Of all the blogs we’ve posted, this (the 67th) may be the most consequential.

Within the 100+ pages of proposed revisions for the 2019 Kansas Child Support Guidelines, are some of the most sweeping revisions seen since the adoption of the original Guidelines (Administrative Order No. 59) on October 1, 1987.

The 2019 revision proposals fall generally into four categories, which will be discussed in two separate blogs:

A. General Comments and Changes to Particular Guideline Topics
B. Omissions, Typos and Errata

GENERAL COMMENTS

In addition to the many edits proposed, several new calculations are required, and the child support schedules (Appendix I) have been modified with changes ranging from a support reduction of $138 per month to an increase of $37 per month per child.

There are also some significant omissions. Which we will cover in a subsequent Blog.

Without reiterating here each edit to Administrative Order 287, it is important that the Guidelines user carefully review the proposed Guidelines and consider the deletions (marked with strike though text) and additions (marked with underlined text), noting that underlining may have been used for emphasis in the prior Guidelines, as well as for additions that are new.

One of the issues we ran into while reviewing the changes was the fact that the organization and numbering of the sections was inconsistent and, in many cases, did not correctly correspond to the revised worksheet. Our recommendation to anyone reviewing these changes is that they pay close attention to the sections and where they actually relate on the worksheet.

The following comments address a few of the areas that seem most significant for the typical user – just a few.

CHANGES TO PARTICULAR GUIDELINES TOPICS

IV. SPECIFIC INSTRUCTIONS FOR THE WORKSHEET

Sec. III.B.7. The phrase “or nearly equal” has been deleted in referring to parents who share the children’s time. It now appears that only “equal” sharing of time is significant.

Sec. IV.B. Reasonable Business Expenses do not include the QBI (Qualified Business Income deduction); the “20%” deduction from self-employed and small business income allowable in determining child support income. Sec. II.E.2

The “Imputed Income” section Sec. II.F. is now renamed “Ability to Earn Income” and details specific circumstances of both parents which the Court must take into consideration, and mandates written findings in support of the imputation of income. Sec II.F.1.

The child support worksheet has been revised in ways which require the user to “show their work” in calculating the requested adjustments and may be confusing.

Sec III.B.7.b – Equal Parenting Time – Where the Equal Parenting Time formula is used, the Parent receiving the EPT differential CS amount shall be responsible for the payment of the reasonable direct expenses listed in Section II.A. However, step 3 of the EPT worksheet requires the selection of which parent is designated to pay the direct expenses. This creates a conundrum – you cannot select which parent pays the direct expenses until you know which one receives the EPT amount but the EPT amount is determined by who pays the direct expenses. If the new stipulation that the lower obligated parent always pays the direct expenses, then why have the decision in step 3 of the EPT worksheet?

{Note, however, that this new proviso also conflicts with other provisions of Section II.B.7.b, which provide other, additional criteria to be considered beyond which parent receives the EPT support differential payment, INCLUDING AN AGREEEMENT OF THE PARENTS.

The changes to Equal Parenting Time still do not fully address the situation where the EPT amount becomes negative. This can occur when the lower obligated parent is not the parent paying the direct expenses. Of all the support contacts we receive this is one the most common questions.

IV.C.3(a). Spousal Maintenance Paid (Line C.3.)

Maintenance actually paid under an Agreement or court order entered before 12/31/18 may be deducted online C.3.

And then, we have the following new proviso, which mixes several IRS provisions and the TCJA of 12/23/18, and then offers an alternative maintenance deduction of 25% (none of which reflect “…orders entered after December 31, 2018, as a result of the 2017 Tax Costs and Jobs Act Tax Reform”.

Neither the genesis nor the rationale for the 25% alternative are explained.

Payments in satisfaction of arrearages of court-ordered maintenance shall not be deducted (?!?). {Once again, no explanation is offered, nor is there a definition of “arrearages.”}

IV.C.4 {See the comments re Section IV.C.3 above, since the provisions in subsections 3 and 4 are identical)

While many think the Tax Cuts and Jobs Act (TCJA) abolished alimony, that’s not true. The TCJA only abolished the deductibility to the payor, (and taxability to the recipient) of alimony paid pursuant to a 2019 or later “Divorce Instrument” – a court order, divorce decree, settlement agreement or other document creating the alimony obligation.

Sums paid pursuant to a pre-2019 instrument remain tax deductible (and taxable to the recipient) even if paid during 2019 or later. Regardless of when paid, the payments must be “qualified” (just as before the TCJA was enacted). The guidelines use a mixture of two terms that seemly are in conflict – they use the term “maintenance paid” and the term “maintenance awarded”. In the case of a newly divorcing couple there would not be any maintenance paid yet.

IV.D.4.b Unreimbursed Medical Expenses

Here, the Guidelines proposals revert to the earlier, rejected, “save your receipts” approach to sharing a child’s medical expenses, accompanied by the problematic demands for reimbursement, accountings for insurance coverage, and court hearings. No explanation is given for the course reversal.

IV.E. Child Support Adjustments (Section E)

Section E adjustments apply only when requested by a party, in writing, before the hearing on child support.

IV.E.1. Long-Distance Parenting Time Costs.

Where parents share the costs equally, no adjustment should be allowed. Where the parents do not share the costs equally, the court should divide the costs by 2 in order to allocate ½ of the cost to each parent. (And then give credit to the party actually paying for the transportation.)

IV.E.2.b Parenting Time Adjustment The Parenting Time Adjustment has been increased as a percentage of the child support amount. It now ranges from 10% to 30% of the Nonresidential Parents child support obligation where the NRP time ranges from 35% to 49% of the child’s time.

The other significant change here is that the Parenting Time Adjustment has moved to be in Section D of the worksheet – which is now subject to income proportion. Note also that it is mislabeled as section IV.E.2.b when perhaps it should be labeled section

IV.D.5. IV.E.3. Income Tax Considerations

The Directions for the calculation of the ITC adjustment have, like all other information formerly included in Appendices within the Guidelines, been moved (for ease in updating and modifying) to the Supreme Court’s Website found at KSCourts.org.

IV.F.2 Ability to Pay Calculation.

This new section requires the court to determine the non-residential parent’s ability to meet his or her own basic needs in accordance with current federal poverty guidelines for a household of one. The NRP’s child support income is reduced by the federal poverty amount to arrive at the NRP’s child support obligation using the NRP’s poverty-adjusted child support income. Note that the published poverty guidelines are stated as annual amounts however the line D.1 in the worksheet is a monthly amount. The poverty guidelines amount should be divided by 12 before being subtracted from the line D.1 amount.

While there are instructions for line F.3 and F.5, note that what to do in subsequent lines, line F.4 is completely ignored in the instructions.

IV.F.5 Social Security Disability or Retirement Dependent/Auxiliary Benefit

If the child Receives Social Security Dependent/auxiliary benefits, as a result of the NRP’s disability or retirement, the amount of the child’s benefit is subtracted from the child support on Line F.5.b. If the result is 0 then the new parental child support obligation is $0; otherwise the final subtotal on line F.6.b. is the result of line F.5b minus line F.6 and becomes the new child support amount. NOTE: There is no “Line F.5.b” on the published CS Worksheet on pages 40, 85, 89 of the proposed Guidelines.

If you see something we’ve missed, we welcome your feedback.

Brad & Randy

NEXT: Omissions, Typos and Errata

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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