9. Welcome back! In the last Lesson, we talked about how to treat maintenance or alimony on the worksheet. Now, let’s tackle the next thorny question: Is there an adjustment to a parent's "gross income" if he or she is supporting a prior-born child?
KRS 403.212(2)(g)(2) and (3) gives us the answer:
"Combined monthly adjusted parental gross income" means the combined monthly gross incomes of both parents, less any of the following payments made by the parent:
2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders; and
3. A deduction for the support to the extent payment is made, if a parent is legally responsible for and is actually providing support for other prior-born children who are not the subject of a particular proceeding. If the prior-born children reside with that parent, an "imputed child support obligation" shall be allowed in the amount which would result from application of the guidelines for the support of the prior-born children.
So, we deduct from “gross income” on the worksheet any amounts of pre-existing orders of child support for prior-born children to the extent payment is actually made under the order.
For example, if Father had a child with his old wife or girlfriend before Jr. and Sissy were born, and he is actually paying child support of $400 per month to that mother based a pre-existing court order in that case, we deduct that amount from his side of the worksheet. (Exhibit 9)
BUT, if he gets his NEW girlfriend pregnant and is ordered to pay child support to HER after the child support order is entered IN THIS CASE, he does not get to deduct it on THIS worksheet. He can deduct it on the worksheet in the new Baby-Mama case if the Order in this case is entered before the Order is entered in that case, once he begins paying child support pursuant to a court order in this case. Talk about an awkward race to the courthouse!
What if Mother had a baby before she hooked up with Father?
If she is getting child support from the first guy, that amount is not included as income to her on this worksheet. BUT, let’s look at subsection 3 – what if there is a prior-born child but there is no existing child support order for that child? Now what?
I think this sentence should apply regardless of whether the child is living with the parent, but I am not aware of any appellate court decisions that provide guidance as to that issue. Remember our first Lesson? KRS 405.020 says she has a legal responsibility to provide for the nurture and education of that child. Is she actually providing support for that child, even though there is no court order requiring her to do so? If she can prove she is actually making payments for support, she should get to deduct it from her income.
Finally, what if the prior-born child DOES live with her?
The second sentence of subsection 3 does give us some guidance on this one. We are somehow to impute the amount of support that she would get if she did receive child support from the father of the prior-born child. How in the world do we figure out how much that would be? He may be dead, for all we know! Or if not, she may not know where he is! And if he is alive, how do we apply the guidelines if we don’t know how much the father of that child earns?
Now you know a little bit more about how to treat support of a prior-born child, and probably have more questions than you had before you worked through this statute. Don't despair, many a lawyer and at least a few judges have struggled, and will continue to struggle, with this aspect of the law.
KRS 403.212(2)(g)(2) and (3) gives us the answer:
"Combined monthly adjusted parental gross income" means the combined monthly gross incomes of both parents, less any of the following payments made by the parent:
2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders; and
3. A deduction for the support to the extent payment is made, if a parent is legally responsible for and is actually providing support for other prior-born children who are not the subject of a particular proceeding. If the prior-born children reside with that parent, an "imputed child support obligation" shall be allowed in the amount which would result from application of the guidelines for the support of the prior-born children.
So, we deduct from “gross income” on the worksheet any amounts of pre-existing orders of child support for prior-born children to the extent payment is actually made under the order.
For example, if Father had a child with his old wife or girlfriend before Jr. and Sissy were born, and he is actually paying child support of $400 per month to that mother based a pre-existing court order in that case, we deduct that amount from his side of the worksheet. (Exhibit 9)
BUT, if he gets his NEW girlfriend pregnant and is ordered to pay child support to HER after the child support order is entered IN THIS CASE, he does not get to deduct it on THIS worksheet. He can deduct it on the worksheet in the new Baby-Mama case if the Order in this case is entered before the Order is entered in that case, once he begins paying child support pursuant to a court order in this case. Talk about an awkward race to the courthouse!
What if Mother had a baby before she hooked up with Father?
If she is getting child support from the first guy, that amount is not included as income to her on this worksheet. BUT, let’s look at subsection 3 – what if there is a prior-born child but there is no existing child support order for that child? Now what?
I think this sentence should apply regardless of whether the child is living with the parent, but I am not aware of any appellate court decisions that provide guidance as to that issue. Remember our first Lesson? KRS 405.020 says she has a legal responsibility to provide for the nurture and education of that child. Is she actually providing support for that child, even though there is no court order requiring her to do so? If she can prove she is actually making payments for support, she should get to deduct it from her income.
Finally, what if the prior-born child DOES live with her?
The second sentence of subsection 3 does give us some guidance on this one. We are somehow to impute the amount of support that she would get if she did receive child support from the father of the prior-born child. How in the world do we figure out how much that would be? He may be dead, for all we know! Or if not, she may not know where he is! And if he is alive, how do we apply the guidelines if we don’t know how much the father of that child earns?
Now you know a little bit more about how to treat support of a prior-born child, and probably have more questions than you had before you worked through this statute. Don't despair, many a lawyer and at least a few judges have struggled, and will continue to struggle, with this aspect of the law.
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