The proposed rule clarifies that veterans disability benefits are to be considered income available for child support.
Low-Income Cases
The proposed rule provides that the low-income formula may be combined with the shared, serial, and split placement formulas.
The proposed rule adds language suggesting job search or a work experience program, such as Children First, as an alternative to imputing income in low-income cases.
Serial-Family Cases
The proposed rule retains the current serial-family formula in s. DCF 150.04 (1) with a clarification that serial-family parents may be eligible for application of the low-income formula if multiple child support obligations put their income below the low-income threshold. The proposed rule clarifies the serial-family formula as follows:
A parent subject to an existing child support order is a serial-family payer for the purpose of calculating a support obligation for children from a subsequent family under the provisions of this section and s. DCF 150.04 (2).
A parent with a legal obligation to support a child in an intact family is a serial -family payer for the purpose of calculating a support obligation for children from a subsequent family under the provisions of this section and s. DCF 150.04 (2).
A parent subject to a shared-placement order is a serial-family payer for the purpose of calculating a support obligation for children from a subsequent family under the provisions of this section and s. DCF 150.04 (2).Shared-Placement Cases
The proposed rule requires that variable costs shared by the parties be determined based on a list of variable costs agreed to by the parties or ordered by the court based upon lists furnished by the parties. The proposed rule requires that transportation costs related to the exercise of physical placement be included in that list.
The proposed rule requires that a change in circumstances to modify a child support order should be a change in the circumstances of the parties and not a change in variable costs alone.
The proposed rule retains the current formula for calculating support in shared-placement cases in s. DCF 150.04 (2) using overnights or their equivalent as a measure of shared time but provides more examples of equivalent care that include a pattern of time spent with the children that involves blocks of time that may be less than overnight. Consideration of equivalent care requires that the time spent with the children include a requirement that a meal be provided. The proposed rule repeals the provision allowing variable cost orders to be rolled into the child support amount.
The proposed rule provides that the shared-placement formula may be combined with the low-income formula where applicable.
Medical Support
The proposed rule changes the measure of reasonable cost from 5% of each parent’s gross monthly income to 10% of the gross monthly income of each parent and applies it to the full cost of the policy as opposed to the incremental cost of adding the child(ren).
The proposed rule provides that a contribution toward the cost of insurance for the children from the custodial parent should not exceed the incremental cost to add the children to the policy.
The proposed rule adds language requiring the court to consider the effect of the dependency exemption on health insurance responsibility.
The proposed rule provides that recovery of birth costs is inappropriate in cases where the alleged father is a member of an intact family that includes the mother and the subject child, and the father’s income, if any, contributes to the support of the child.
High-Income Cases
In response to comments at the public hearing, the department has dropped the proposed changes to s. DCF 150.04 (5). The current guidelines on determining the child support obligation of a high-income payer will continue to apply. Summary of Factual Data and Analytical Methodologies
The proposed rule revisions were developed in response to recommendations from the Child Support Guidelines Advisory Committee established to provide guidance to the Department on revisions to the state policy regarding the guidelines used to determine child support payments and the application of those guidelines in special circumstances. This report is the result of the extensive deliberations of the advisory committee composed of representatives of the courts, the Wisconsin Bar, community-based organizations and county child support agencies, state legislators, citizens and the Department of Children and Families.
The proposed rule revisions focus on four areas: low-income formula, shared-time formula, serial-family formula, and medical support guidelines. Additionally, proposed rule revisions make some clarifications to the definition of gross income.
Summary of Related Federal Requirements
Wisconsin’s Percentage of Income Standard was created to comply with federal requirements in 45 CFR 302.56 (a) that require that as a condition of approval of its State plan, all states must establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State. The methodology to be used in calculating support orders is at state discretion. 45 CFR 302.56 (e) also requires states to review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts. Comparison to Rules in Adjacent States
Iowa, Minnesota, and Michigan use an Income Shares Model to establish child support. Illinois uses a Percentage of Income Standard. The amount of support calculated under Wisconsin’s Percentage of Income Standard is consistent with that of neighboring states.
Effect on Small Business
The rule will not affect small businesses as defined in s. 227.114 (1), Stats. Analysis Used to Determine Effect on Small Business or in Preparation of Economic Impact Analysis
The proposed rule revisions apply to temporary and final orders for child support or family support of a marital or non-marital child in any action affecting the family under ch. 767, Stats., including stipulated child support settlements under s. 767.34, Stats. Agency Contact Person
Connie Chesnik, Attorney Office of Legal Counsel (608) 422-7040 |
SECTION 1. DCF 150.02 (10) is amended to read:
DCF 150.02 (10) “Equivalent care” means a period of time during which the parent cares for the child that is not overnight, but is determined by the court to require the parent to assume the basic support costs that are substantially equivalent to what the parent would spend to care for the child overnight. Blocks of time with the child of at least 6 hours may be considered the equivalent of a half-day if a meal is provided during that time period. Two half-day blocks may be considered the equivalent of an overnight.
SECTION 2. DCF 150.02 (13) 7. and 8. are amended to read:
DCF 150.02 (13) 7. Voluntary deferred compensation, employee contributions to any employee benefit plan or profit–sharing, and voluntary employee contributions to any pension or retirement account whether or not the account provides for tax deferral or avoidance.
8. Military allowances and veterans disability compensation benefits.
SECTION 3. DCF 150.03 (3) is amended to read:
DCF 150.03 (3) Determining income imputed based on earning capacity. In situations where the income of a parent is less than the parent’s earning capacity or is unknown, and in the absence of credible evidence to the contrary, the court may impute income to the parent at an amount that represents the parent’s ability to earn, based on the parent’s education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement, and the availability of work in or near the parent’s community. If evidence is presented that due diligence has been exercised to ascertain information on the parent’s actual income or ability to earn and that information is unavailable, the court may impute to the parent the income that a person would earn by working 35 hours per week for the higher of the federal minimum hourly wage under 29 USC 206 (a) (1) or the state minimum wage in s. DWD 272.03. As an alternative to imputed income, the court may order the parent who is not a custodial parent to search for a job or participate in a work experience and job training program, including the Children First program under s. 49.36, Stats. If a parent has gross income or income modified for business expenses below his or her earning capacity, the income imputed based on earning capacity shall be the difference between the parent’s earning capacity and the parent’s gross income or income modified for business expenses. SECTION 4. DCF 150.03 (5) is amended to read:
DCF 150.03 (5) Adjustment for child’s social security. (a) The court may include consider a child’s benefit under 42 USC 402 (d) based on a parent’s entitlement to federal disability or old-age insurance benefits under 42 USC 401 to 433 in the parent’s gross income and adjust a payer’s child support obligation by subtracting the amount of the social security child’s benefit received by the payee. In no case may this adjustment require the payee to reimburse the payer for any portion of the child’s benefit. If the payer is receiving the child’s benefit, the support amount is either the percentage standard applied to the payer’s income or the amount of the child’s benefit, whichever is greater. SECTION 5. DCF 150.03 (5) (b) and (Note) are created to read:
DCF 150.03 (5) (b) If the shared-placement guidelines under s. DCF 150.04 (2) apply, the child’s benefit is split between the parents in proportion to the amount of time the child spends with each parent. Add the proportion of the child’s benefit that represents the proportion of time the child spends with the parent not receiving the benefit to the support obligation of the parent who is receiving the child’s benefit. Support shall be determined as follows: 1. Determine each parent’s monthly income available for child support under s. DCF 150.03 (1) (intro.). If a parent has one or more previous child support obligations, determine the parent’s monthly income available for child support adjusted for the previous obligations as provided in s. DCF 150.04 (1). Include the parent’s federal disability or old age insurance benefits under 42 USC 401 to 433 in that parent’s income, but do not include the child’s benefit under 42 USC 402 (d) in either parent’s income. 2. Multiply each parent’s monthly income available for child support by the appropriate percentage standard under s. DCF 150.03 (1). 3. Multiply each amount determined under subd. 2. by 150%.
4. Multiply the amount determined for each parent in subd. 3. by the proportion of time that the child spends with the other parent.
5. Multiply the amount of the child’s benefit by the proportion of the time the child spends with the parent who is not receiving the child’s benefit.
