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What if I find out the other parent has not been paying for childcare even though I have been paying for my share?

6/3/2015

 
17.  Welcome back! Mistakes happen, right?  What if I find out the other parent has not been paying for childcare even though I have been paying for my share?

            Believe it or not, this actually happens!  And as often as not, it happens by reason of inadvertence, as opposed to deception.

            When a Child Support Order is entered, parents will often lump together child support with the proportionate share of health insurance and childcare.  Remember back in Lesson 3 when we drew the bold red line on the worksheet to avoid confusion about a party's obligation to pay child support and the obligation to pay a proportionate share of childcare and health insurance expense?  Here is where the confusion would set in had we not drawn that red line.

            The worksheet actually encourages this oversight, in my judgment, as Line 13 at the bottom of the worksheet is the net amount actually paid, and many parties understandably consider that amount to be the “child support”.  Thus, the red line I use to make sure that confusion will be avoided.

            Regardless of whether by mistake or deceit, the law allows a full recovery of overpaid childcare expenses by a parent.  In 2012, the Kentucky Court of Appeals addressed this very question in the case of Nosarzewski v. Nosarzewski, 375 SW3d 820 (Ky. App. 2012).  The judge in that case went back 8 years and awarded the father more than $10,000 he had paid the mother for child care expense that had not been incurred.  Even though there was no fraud in that case in the mother's acceptance of a monthly payment which included both child support and child care expense, she was ordered to pay the father back, and the Court of Appeals affirmed the trial judge.

      So, now you know to check your records about child care expense!  

How does a parent actually recover the proportionate share of extraordinary medical expenses from the other parent?

6/3/2015

 
            16.  Welcome back!  Let’s talk practicalities here.  How does a parent actually recover the proportionate share of extraordinary medical expenses from the other parent?

            For my clients, I always set up a process in the Settlement Agreement or Child Support Order to deal with this.  The party with insurance coverage will bear the initial burden of the first $100 per child per year (per the statute) along with co-pays and deductibles.  Then, we require the parent who incurs a bill to send it to the other parent within a specified period of time.  This is negotiable, but I typically require submission within 30 days.

            There has to be a time period in which a party can object to a bill on the basis that it is not reasonably necessary or was simply not incurred.  If the parties cannot agree after an objection is made, the party incurring the bill will need to file a motion to bring the dispute before the court.  If there is no objection, reimbursement should be required within the same 30 day period of time.

            Even without a gameplan in place, the law requires the allocation. As a judge, I saw many a parent bring in a stack of the last 5 years of bills and expect the other to pay his or her share within a couple of weeks.  With no plan in place, it seems the judge is justified in drawing the line somewhere – 6 months, or a year, whatever – and applying the equitable doctrine of laches  to cut off collection efforts. ("Laches" is a technical legal principle that is beyond the scope of this Lesson.)        

Now you have some idea about how to deal with extraordinary medical expenses, so unless you choose to worry about the doctrine of laches, have a great day!

Who pays for deductibles and co-pays and how do we deal with extraordinary medical expenses not covered by the insurance?

5/27/2015

 
15.  Welcome back!  Who pays for deductibles and co-pays and how do we deal with extraordinary medical expenses not covered by the insurance?

            KRS 403.211(9) covers this one.  The cost of “extraordinary medical expenses” is to be allocated between the parents according to their respective gross income. 

            According to the definition in the statute, “Extraordinary medical expenses” means uninsured expenses in excess of one hundred dollars ($100) per child per calendar year. "Extraordinary medical expenses" includes but is not limited to the costs that are reasonably necessary for medical, surgical, dental, orthodontal, optometric, nursing, and hospital services; for professional counseling or psychiatric therapy for diagnosed medical disorders; and for drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services.

            So, I am confused here – Extraordinary medical expenses “includes but is not limited to“ certain described costs. Does it include costs that are not reasonably necessary? Does it include other costs not specifically listed? The list is pretty inclusive, so it seems. 

            Parents frequently disagree as to whether there should be an allocation of these expenses.  The most troublesome area seems to be orthodontics, where one party contends the treatment is not necessary for treatment of a condition, but merely cosmetic in nature.  Those questions should be resolved, in my humble opinion, based on expert opinions as opposed to a judge trying to look at x-rays and decide.

            Well, in any event, now you know something more about allocation of extraordinary medical expenses.  

Do parents have to maintain private health insurance for their child, and if so, who pays for it?

5/27/2015

 
14.  Welcome back!  We talked about childcare expense in Lesson 13.  Let’s move on to health care.  Do parents have to maintain private health insurance for their child, and if so, who pays for it?

            As of April 15, 2015, the effective date of these Lessons, it is too early to ascertain every impact of the comprehensive and highly controversial Affordable Care Act, but for the time being, we know that every child in Kentucky should have health insurance, whether through a parent’s employment, Kynect, the Marketplace or CHIP (Children’s Health Insurance Program.)

            Before passage of the Affordable Care Act, KRS 403.211(7) already established the circumstances related to parents’ responsibility for obtaining private health insurance for their children.  If private coverage is “reasonable in cost and accessible” to either parent, the court shall require it to be provided, and it shall allocate the cost between the parents in addition to child support.  "Reasonable in cost” is defined to be coverage which does not cost more than 5 % of that parent’s gross income.  “Accessible” is defined to mean that there are providers who meet the child’s health care needs who are located no more than 60 miles from the child’s primary residence.

            KRS 403.211 law requires that if the private health coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to age 25 who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.  The cost for coverage of children under who qualify under this provision is presumably to be allocated according to the parents’ respective incomes as long as the coverage is maintained.

            The Affordable Care Act requires an insurance provider to make coverage available for adult children until they turn 26 regardless of whether they are married, regardless of whether they are attending school, and regardless of whether they are financially dependent on their parents.

            What if a parent provides coverage for an adult child even though it is not required under KRS 403.211?  Is the other parent required to pay his or her share of the cost?  We won’t know until this is addressed by the appellate courts.

            Often both parents have available coverage and sometimes they disagree about which policy should be used.  Imagine that!  In that case, the custodian will decide which policy to use, but if they have joint custody, they will have to present their argument to the judge who must decide the issue.  Once it is resolved which parent will provide coverage, the cost is allocated according to their respective incomes and, much like the allocation of childcare expense on Exhibit 13, the worksheet will give the parties appropriate credit for the cost of health insurance for the child or children only.  

            In any event, now you know a whole lot more than you did before about private health insurance coverage for children in Kentucky.  Enjoy your day!     

How does Kentucky law deal with the big-ticket item of childcare expense?

5/27/2015

 
13.  Welcome back!  This seems like a good time to go back to our worksheet. How does Kentucky law deal with the big-ticket item of childcare expense? 

            KRS 403.211(6) says:

            The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.

            This appears to be fairly straight-forward, but as always, there are potential issues.  Who decides what provider to use?  What is a reasonable cost?  And necessary?  When the parties cannot agree on these issues, they present evidence and the judge decides. Keep in mind the statute calls for allocation of childcare costs actually incurred, so a judge will be looking for receipts or canceled checks as evidence. 

            Let’s go back to the original scenario where both child live with Mother with no maintenance payments and no prior-born children. The new worksheet that would be used if Sissy required childcare is Exhibit 13.  I have now filled in the amount of childcare expense actually paid for Sissy, $400 per month.  The worksheet automatically allocates the childcare according to percentage of income.  Then, if the payor (here Father) is actually paying the childcare provider (as shown on Exhibit 13,) the amount of his obligation is reduced accordingly.

            Easy enough?  Have a great day!

When the parents' combined monthly adjusted gross income exceeds $15,000 per month, how is child support to be calculated?

5/20/2015

 
            12.  Welcome back!  As we saw in Lesson 11, a court can deviate from the child support guidelines if the combined monthly gross income exceeds the maximum on the child support guidelines table found in KRS 403.212.  When the parents' combined monthly adjusted gross income exceeds $15,000 per month, how is child support to be calculated?

            The chart found in KRS 403.212 has not been changed in over 25 years, so yes, it is outdated. Subsection 5 of that statute gives the court discretion in determining child support in circumstances where combined monthly gross income exceeds $15,000.00.   That basically means the judge gets to decide the appropriate amount of child support to award as long as the decision is not arbitrary or capricious.

            In 2001, the Kentucky Court of Appeals tells us in the famous case of Downing v. Downing, 45 SW3d 449, that “beyond a certain point, additional child support serves no purpose but to provide extravagance and unwarranted transfer of wealth.  While to some degree children have a right to share in each parent’s standard of living, child support must be set in an amount which is reasonably and rationally related to the realistic needs of the children.”  This is sometimes referred to as the Three Pony Rule – no child, no matter how wealthy the parents, needs to be provided with more than three ponies.

            Many Kentucky cases since 2001 have given us more guidance. One approach is to somehow extrapolate the guidelines, but there will be significant differences in the result depending on whether the method of extrapolation employed is linear, parabolic or otherwise.

            For what it’s worth, I cannot remember hearing many cases involving parents with income of more than $15,000 per month who chose to proceed without counsel. 

            Now you know enough about child support where the combined monthly parental income exceeds $15,000 to be dangerous, so proceed with due caution! 

When can a judge deviate from the child support “guidelines”?

5/20/2015

 
11.   When can a judge deviate from the child support “guidelines”?

            KRS 403.211 tells us the guideline amount creates a “rebuttable presumption” as to child support.  It goes on to say that a judge can deviate from the guideline amount where their application would be unjust or inappropriate.  The language of the statute seems to contemplate deviation in "extraordinary" situations, and the statute says that the judge gets to decide what is “extraordinary” in his or her discretion.

            Specific findings are required for any deviation, and it has to be based on one of the following criteria:

            (a) A child's extraordinary medical or dental needs;

            (b) A child's extraordinary educational, job training, or special needs;

            (c) Either parent's own extraordinary needs, such as medical expenses;

            (d) The independent financial resources, if any, of the child or children;

            (e) Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;

            (f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and

            (g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.

            The most common deviation I saw as a judge was when the parties had agreed to an amount of child support different from the guideline amount.  It is important to note that the parties must acknowledge an understanding of the guideline amount in order to qualify for this deviation, so a worksheet, with accurate information as to the parties' gross income, will still be required.

            We will talk specifically in Lesson 12 about the deviation when the parties have combined monthly gross income that exceeds $15,000 per month. 

            I can tell you from experience that unless the parties have combined monthly gross income of more than $15,000 per month, deviation from the guidelines is pretty rare unless the parties can demonstrate an understanding of what the guidelines would call for and they have agreed to a deviation.

            Now you know a little bit about deviation from the child support guidelines – have a great day!

Welcome back!  The last lesson about prior-born children showed us how complicated child support questions can get, didn’t it?

5/20/2015

 
10.  Welcome back!  The last lesson about prior-born children showed us how complicated child support questions can get, didn’t it?

            Let’s get back to an easy one now.  What happens in a split custody arrangement where Sissy lives with Mother and Jr. lives with Father?

            KRS 403.212(6) gives us the simple answer of how to determine split custody child support.  Prepare 2 worksheets, one for each home with Jr. being the only child in Father’s home and Sissy being the only child in Mother’s home. (See Exhibits 10 and 10A.) Then, they basically pay child support to each other. 

            In this case, Father would owe $642 to Mother for Sissy, and Mother would owe $320 to Father for Jr.  The net result is Father pays Mother $322, the difference in the two amounts.

            Not to complicate things, but if they had 3 children and 2 of them live with Father and 1 with Mother, his worksheet would be calculated based on 2 children, and hers based on 1. 

            I told you it was easier than Lesson 9.

            Did you need to know how to determine child support with split custody?  Now you know!

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    Judge John Schrader is a Husband, a Father, and a Lexington Attorney providing legal and mediation services in the office of Sherrow, Sutherland & Associates, P.S.C.

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    CHILD SUPPORT TABLE OF CONTENTS
    1. Who is required to pay child support in Kentucky?
    Publish Date: April 29, 2015
    2. What do I do to obtain a Kentucky Child Support Order?

    Publish Date: April 29, 2015
    3. How is child support calculated under the guidelines?
    Publish Date: April 30, 2015
    4. What is considered “gross income” for child support calculations?
    Publish Date: May 5, 2015
    5. How do I find out what the other parent's income is?
    Publish Date: May 6, 2015
    6. What about income from self-employment or business income?
    Publish Date: May 7, 2015
    7. What if a parent is voluntarily unemployed or underemployed?
    Publish Date: May 13, 2015
    8. What if one parent is paying maintenance?
    Publish Date: May 13, 2015
    9. Is there an adjustment to a parent's "gross income" if he or she is supporting a prior-born
    child?

    Publish Date: May 13, 2015
    10. What happens in a split custody arrangement where Sissy lives with Mother and Jr. lives with Father?
    Publish Date: May 20, 2015
    11. When can a judge deviate from the child support “guidelines”?
    Publish Date: May 20, 2015
    12. When the parents' combined monthly adjusted gross income exceeds $15,000 per month, how is child support calculated?
    Publish Date: May 20, 2015
    13. How does Kentucky law deal with the big-ticket item of childcare expense?
    Publish Date: May 27, 2015
    14. Do parents have to maintain private health insurance for their child, and if so, who pays
    for it?

    Publish Date: May 27, 2015
    15. Who pays for deductibles and co-pays and how do we deal with extraordinary medical expenses not covered by the insurance?
    Publish Date: May 27, 2015
    16. How does a parent actually recover the proportionate share of extraordinary medical expenses from the other parent?
    Publish Date: June 3, 2015
    17. What if I find out the other parent has not been paying for childcare even though I have been paying for my share?
    Publish Date: June 3, 2015
    18. How do I get a modification of child support in Kentucky?
    Publish Date: June 3, 2015
    19. When does child support terminate?
    Publish Date: June 10, 2015
    20. Is a Wage Assignment Order required for child support in Kentucky?

    Publish Date: June 10, 2015
    21. What does the court do about child support when the child spends a considerable amount of time with both parents?
    Publish Date: June 10, 2015
    22. What is involved in collection of child support?
    Publish Date: June 17, 2015
    23. How does the law deal with enforcement of the child support order when my ex and I
    live in two different states?

    Publish Date: June 17, 2015
    24. If Kentucky does not have jurisdiction over the other parent of my child, what is the UIFSA process to deal with establishment, enforcement and modification of child support
    orders?

    Publish Date: June 17, 2015
    25. What about parents who were not husband and wife to each other when their child was
    born?

    Publish Date: June 24, 2015
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