Kansas Child Support 2020
| Citation | Vol. 89 No. 6 Pg. 36 |
| Pages | 36 |
| Publication year | 2020 |
July 2020
Seeing the future of child support with open eyes
by Bethany Roberts and Casey E. Forsyth
In every divorce, parentage, and support action, the calculation of child support has the potential to become an intensely litigated and highly emotional issue. In an area of the law where emotions can overwhelm practical considerations, the child support guidelines assist families seeking predictability and fairness in the financial side of supporting their children. Effective January 1, 2020, the Kansas Child Support Guidelines changed significantly. This article highlights the most significant changes included in the 2020 Guidelines and their practical impact.
In every case, the parties and courts involved must use the Kansas Child Support Guidelines when calculating and ordering child support.[1] These guidelines must adhere to the requirements set at the federal level while also meeting the approval of the Kansas Supreme Court. To maintain compliance with federal regulations, Kansas must review its child support guidelines at least every four years and include specific substantive provisions, [2]
The 2020 Kansas Child Support Guidelines changed significantly. Based on new requirements within the federal regulations, the Kansas guidelines include for the first time a consideration of a child support payor's basic subsistence needs, the payor's ability to pay support, and a reversal on how courts treat a parent's incarceration in establishing or modifying child support.[3] The updated guidelines include Kansas-specific changes regarding Social Security benefits, equal parenting time, and spousal maintenance, while also including mathematical and technical changes to parenting time adjustments, due process notice, and child support practice forms. Attorneys may fall victim to costly errors if they are not familiar and equipped to utilize these substantive and procedural changes to their clients' advantage.
Federal Review and ReformThe guidelines must meet not only the approval of the Kansas Supreme Court, but also comply with federal regulations. The federal agency that oversees state child support programs is the Office of Child Support Enforcement (OCSE), which is an office of the Administration for Children and Families (ACF) within the Department of Health and Human Services.[4]
In response to an executive order on regulatory improvements, OCSE issued its proposed changes to the nation's child support programs. The resulting rule, "Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs," included several departures from the previous requirements. The regulation took effect in January 2017 and included deadlines for mandatory compliance based on each state's last four-year review of child support guidelines [5] With Kansas's last mandatory four-year review of its child support guidelines completed in 2016, the 2020 Kansas amendments must comply with the 2017 federal requirements.[6]
Federal Child Support Plan RequirementsBefore 2017, the federal regulations on child support guidelines required each state to create a child support plan with the following three requirements: 1) consideration of a payor's income and earnings; 2) a basis in descriptive and numeric criteria that resulted in a computation of child support obligations; and 3) consideration of the children's health insurance needs.[7]
While the new regulation keeps those requirements, it expands beyond these basic considerations. First, the regulation requires a closer examination of a payor's financial circumstances by introducing the concept of the payor's ability to pay.[8] This necessitates not only the consideration of the payor's earnings and income, but also the payor's basic needs for living.[9] This is accomplished through a mandated low's. income analysis.[10] The regulation leaves open to the states how to implement this through either a self-support reserve 'analysis or through another method determined by the state.
The emergence of ability to pay considerations stems from research linking an ability to pay with an increase in the ability to collect child support obligations.[11] Lack of investigation into a payor's ability to pay often results in the creation of unrealistic child support orders, which leads to, "unpaid support, uncollectible debt, reduced work effort, and underground employment," especially for low-income payors.[12]When child support orders are based on evidence of the payor's actual income, and his or her ability to pay, rather than an imputed and possibly erroneous wage, the payor is more likely to pay support to benefit the family.[13]
The goal of a low-income consideration is to allow a payor parent sufficient income to support himself or herself while also continuing employment.[14] At the time of publication of OCSE's final rule, all but five states had already instituted some type of low-income or pay reserve adjustments in their child support guidelines.[15] The OCSE's emphasis on ability to pay stems from the practical effects of an inaccurate child support order for low-income payors. While both parents are responsible for supporting their children, the OCSE's position is that without consideration of the payor's basic subsistence needs, he or she will be less likely to maintain child support payments and may leave traditional employment to seek off the grid or illegal methods of earning, to the detriment of the entire family.[16]
A second federal change is the requirements placed on imputation of income. When a court imputes a payor's income at a different income than is reflected in the evidence of the payor's actual wages, the rule requires that the guidelines include consideration of the payor's specific circumstances.[17]These factors include, to the extent known, the payor's "assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the payor, prevailing earnings level in the local community, and other relevant background factors in the case."[18]
While every child support calculation is necessarily casespecific, this provision increases the level of detail necessary to impute income and places an increased emphasis on fact gathering and presentation of evidence.[19] It is not enough to assume universally that each parent is able to obtain full time employment. The addition of these factors requires that attorneys and courts take a careful look at the qualities of the parents and of their community.
The final requirement instituted at the federal level is aimed at the effect that incarceration has on a payor of child support. The new rule states that the court may not treat a payor's incarceration as voluntary unemployment in the establishment or modification of a child support order.[20] OCSE determined that any guideline provision to the contrary was effectively a ban on the payor's right to modify his or her child support order upon showing a substantial change in circumstance, which is in violation of the federal law requiring review and modification of child support orders.[21]
2020 Kansas Child Support Guidelines
In Kansas, the Supreme Court adopts child support guidelines based on the recommendations of the Kansas Child Support Guidelines Advisory Committee.[22] This thirteen-member committee consists of attorneys, judges, parent representatives, and child support experts. After meeting for over a year to review the federal regulations and discuss proposed changes to the Guidelines, the Advisory Committee released its Proposed Child Support Amendments in June 2019.[23]These proposals were available to the public for comment until August 9, 2019, at which time they returned to the advisory committee for revision. The Supreme Court reviewed the final version, which it approved by administrative order.[24]
The following changes highlight the most important changes to the Kansas Child Support Guidelines, which became effective on January 1, 2020.
Ability to Earn
One of the most striking changes in the child support guidelines is the additional burden placed on litigants and the court to determine the appropriate amount when imputing income to either parent.
In many cases, the court, whether based on evidence or lack of wage information, imputes a payor or payee's income at a wage different from what he or she is actually earning. Under previous versions of the guidelines, the court could assume the payor or payee was capable of earning at least the federal minimum wage without further evidence.[25]The party opposing this assumption was required to present substantial justification.[26] Especially in the establishment of a new child support order for low-income families, imputation of the minimum wage income became a starting point or baseline calculation from which to modify in the future.
However, a large body of growing research shows that a payor's likelihood of paying child support as ordered is closely related to the court's consideration of the payor's income and his or her ability to pay.[27] To this end, the 2020 guidelines remove the assumption that a party is able to earn at least the federal minimum wage and now allow judicial discretion to impute income in "appropriate circumstances."[28]
Under the 2020 guidelines, if the court is going to impute income to either party, the court must take into consideration the unique circumstances of the parent and the community, whether at the federal minimum wage or otherwise.[29] This includes consideration of:
â— the parents' assets;
â— residence;
â— employment and earnings history;
â— job skills;
â— educational...
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