Calculating Child Support

CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.

ARTICLE 1. GENERAL PROVISIONS.

§48A-1-3. Calculation of interest.

(a) If an obligation to pay interest arises under this chapter , the rate of interest is that specified in section thirty-one, article six, chapter fifty-six of this code. Interest shall accrue only upon the outstanding principal of such obligation. On and after the ninth day of June, one thousand nine hundred ninety-five, this section shall be construed to permit the accumulation of simple interest, and may not be construed to permit the compounding of interest. Interest which accrued on unpaid installments accruing before the ninth day of June, one thousand nine hundred ninety-five, may not be modified by any court, irrespective of whether such installment accrued simple or compound interest: Provided, That unpaid installments upon which interest was compounded before the effective date of this section shall accrue only simple interest thereon on and after the ninth day of June, one thousand nine hundred ninety-five.

(b) Except as otherwise provided in this subsection, prejudgment interest shall not be awarded in a domestic relations action. The circuit court may only award prejudgment interest in a domestic relations action against a party if the court finds, in writing, that the party engaged in conduct that would violate subsection (b), rule eleven of the West Virginia rules of civil procedure. If prejudgment interest is awarded, the court shall calculate prejudgment interest from the date the offending representation was presented to the court.

ARTICLE 1A. DEFINITIONS.

§48A-1A-19. Gross income.

(a) "Gross income" means all earned and unearned income. The word "income" means gross income unless the word is otherwise qualified or unless a different meaning clearly appears from the context. When determining whether an income source should be included in the child support calculation, the court or master shall consider the income source if it would have been available to pay child-rearing expenses had the family remained intact or, in cases involving a nonmarital birth, if a household had been formed.

(b) "Gross income" includes, but is not limited to, the following:

(1) Earnings in the form of salaries, wages, commissions, fees, bonuses, profit sharing, tips and other income;

(2) Any payment from a pension plan, an insurance contract, an annuity, social security benefits, unemployment compensation, supplemental employment benefits, workers' compensation benefits and state lottery winnings and prizes;

(3) Interest, dividends or royalties;

(4) Expense reimbursements or in In kind payments such as business expense accounts, business credit accounts, and tangible property such as automobiles and meals, to the extent that they provide the parent with property or services he or she would otherwise have to provide;: Provided, That reimbursement of actual expenses incurred and documented shall not be included as gross income.

(5) Attributed income of the parent, calculated in accordance with the provisions of section three, article one-a of this chapter;

(6) Compensation An amount equal to fifty percent of the average compensation paid for personal services as overtime pay compensation during the preceding thirty-six months: Provided, That overtime compensation may be excluded from gross income if the parent with the overtime income demonstrates to the court or master that the overtime work is voluntarily performed and that he or she did not have a previous pattern of working overtime hours prior to separation or the birth of a nonmarital child;

(7) Income from self-employment or the operation of a business, minus ordinary and necessary expenses which are not reimbursable, and which are lawfully deductible in computing taxable income under applicable income tax laws, and minus FICA and medicare contributions made in excess of the amount that would be paid on an equal amount of income if the parent was not self-employed: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from such employment during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such income, whichever period is shorter;

(8) Income from seasonal employment or other sporadic sources: Provided, That the amount of monthly income to be included in gross income shall be determined by averaging the income from seasonal employment or other sporadic sources received during the previous thirty-six-month period or during a period beginning with the month in which the parent first received such compensation, whichever period is shorter; and

(9) Alimony and separate maintenance receipts.

(c) Depending on the circumstances of the particular case, the court or master may also include severance pay, capital gains and net gambling, gifts or prizes as gross income.

(d) "Gross income" does not include:

(1) Income received by other household members such as a new spouse;

(2) Child support received for the children of another relationship;

(3) Means-tested assistance such as aid to families with dependent children temporary assistance for needy families, supplemental security income and food stamps; and

(4) A child's income unless the court or master determines that the child's income substantially reduces the family's living expenses.

§48A-1A-21. Individual entitled to support enforcement services under the provisions of this chapter and the provisions of Title IV-D of the federal Social Security Act.

(a) "Individual entitled to support enforcement services under the provisions of this chapter and the provisions of Title IV-D of the federal Social Security Act" means:
(1) An individual who has applied for or is receiving services from the child support enforcement division and who is the custodial parent of a child, or the primary caretaker of a child, or the guardian of the property of a child when:
(A) Such child has a parent and child relationship with an obligor who is not such custodial parent, primary caretaker or guardian; and
(B) The obligor with whom the child has a parent and child relationship is not meeting an obligation to support the child, or has not met such obligation in the past; or
(2) An individual who has applied for or is receiving services from the child support enforcement division and who is an adult or an emancipated minor whose spouse or former spouse has been ordered by a court of competent jurisdiction to pay spousal support to the individual, whether such support is denominated alimony or separate maintenance, or is identified by some other terminology, thus establishing a support obligation with respect to such spouse, when the obligor required to pay such spousal support is not meeting the obligation, or has not met such obligation in the past; or
(3) Any individual who is an obligee in a support order, entered by a court of competent jurisdiction after the thirty-first day of December, one thousand nine hundred ninety-three.

(b) The filing of an action wherein the establishment or enforcement of child support is an issue constitutes an application to receive services from the child support enforcement division, if the individual filing the action is otherwise eligible for such services: Provided, That any such individual has the option to decline the receipt of such services.

ARTICLE 1B . GUIDELINES FOR CHILD SUPPORT AWARDS.

§48A-1B-3. Basic child support obligation.

(a) The basic child support obligation is determined from the following table of monthly basic child support obligations:

West Virginia

Monthly Basic Child Support Obligations

(Adjusted for West Virginia's Income Relative to U.S. Averages)

[remainder of table omitted; see PDF version]

(b) This subsection provides for incomes below table. If combined adjusted gross income is below five hundred fifty dollars per month, which is the lowest amount of income considered in the table of monthly basic child support obligations set forth in subsection (a) of this section, the basic child support obligation shall be set at fifty dollars per month or a discretionary amount determined by the court based on the resources and living expenses of the parents and the number of children due support.

(c) This subsection provides for incomes above table. If combined adjusted gross income is above fifteen thousand dollars per month, which is the highest amount of income considered in the table of monthly basic child support obligations set forth in subsection (a) of this section, the basic child support obligation shall not be less than it would be based on a combined adjusted gross income of fifteen thousand dollars. The court may also compute the basic child support obligation for combined adjusted gross incomes above fifteen thousand dollars by the following:

(1) One child —- $1,338 + 0.088 x combined adjusted gross income above fifteen thousand dollars per month;

(2) Two children -- $1,934 + 0.129 x combined adjusted gross income above fifteen thousand dollars per month;

(3) Three children -- $2,276 + 0.153 x combined adjusted gross income above fifteen thousand dollars per month;

(4) Four children -- $2,515 + 0.169 x combined adjusted gross income above fifteen thousand dollars per month;

(5) Five children -- $2,726 + 0.183 x combined adjusted gross income above fifteen thousand dollars per month; and

(6) Six children -- $2,917 + 0.196 x combined adjusted gross income above fifteen thousand dollars per month.

§48A-1B-6. Computation of child support order in sole custody cases.

(a) For sole custody cases, the total child support obligation consists of the basic child support obligation plus the child's share of any unreimbursed health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court.

(b) In a sole custody case, the total basic child support obligation is divided between the parents in proportion to their income. From this amount is subtracted the obligor's direct expenditures of any items which were added to the basic child support obligation to arrive at the total child support obligation.

(c) Child support for sole custody cases shall be calculated using the following worksheet:

Worksheet A: Sole Physical Custody

(d) In cases where the noncustodial parent's adjusted gross income is below one thousand four hundred one thousand five hundred fifty dollars per month, an additional calculation in Worksheet A, Part II shall be made. This additional calculation sets the child support order at whichever is lower: (i) Child support at the amount determined in Part I; or (ii) the difference between eighty-five eighty percent of the noncustodial parent's adjusted gross income and five hundred dollars, or fifty dollars, whichever is more.

§48A-1B-7. Shared physical custody adjustment.

(a) Child support for cases with shared physical custody shall be calculated using Worksheet B. The following method should be used only for shared physical custody as defined in section twenty-six, article one-a of this chapter: That is, cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent).

(b) The basic child support obligation shall be multiplied by 1.5 to arrive at a shared custody basic child support obligation. The shared custody basic child support obligation is apportioned to each parent according to his or her income. In turn, a child support obligation is computed for each parent by multiplying that parent's portion of the shared custody child support obligation by the percentage of time the child spends with the other parent. The respective basic child support obligations are then offset, with the parent owing more basic child support paying the difference between the two amounts. The transfer for the basic obligation for the parent owing less basic child support shall be set at zero dollars.

(c) Adjustments for each parent's additional direct expenses on the child are made by apportioning the sum of the parent's direct expenditures on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court or master less any extraordinary credits agreed to by the parents or ordered by the court or master to each parent according to their income share. In turn each parent's net share of additional direct expenses is determined by subtracting the parent's actual direct expenses on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or by the court or master less any extraordinary credits agreed to by the parents or ordered by the court or master from their share. The parent with a positive net share of additional direct expenses owes the other parent the amount of his or her net share of additional direct expenses. The parent with zero or a negative net share of additional direct expenses owes zero dollars for additional direct expenses.

(d) The final amount of the child support order is determined by summing what each parent owes for the basic support obligation and additional direct expenses as defined in subsections (b) and (c) of this section. The respective sums are then offset, with the parent owing more paying the other parent the difference between the two amounts.

(e) Child support for shared physical custody cases shall be calculated using the following worksheet:

Worksheet B: Shared Physical Custody

§48A-1B-11. Modification

(a) The provisions of a child support order may be modified if there is a substantial change of circumstances. If For purposes of this section, if application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered to be a substantial change.

(b) An expedited process for modification of a child support order may be utilized if either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause or an increase in income due to promotion, change in employment, reemployment, or other such change in employment status. The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated. The secretary-clerk shall cause a notice of the filing, a copy of the standardized form, and the support calculations to be served upon the other party and upon the local office of the child support enforcement division for the county in which the circuit court is located in the same manner as original process under rule 4(d) of the rules of civil procedure. The notice shall fix a date fourteen days from the date of mailing, and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the family law master shall prepare a recommended default order for entry by the circuit judge. Either party may move to set aside a default entered by the circuit clerk or a judgment by default entered by the clerk or the court, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure. If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.

(c) The supreme court of appeals shall develop the standardized form required by subsection (b) of this section.

§48A-1B-14. Disregard of formula.

(a) If the court or master finds that the guidelines are inappropriate in a specific case, the court or master may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the child or children or the circumstances of the parent or parents. In either case, the reason for the deviation and the amount of the calculated guidelines award must be stated on the record (preferably in writing on the worksheet or in the order). Such findings clarify the basis of the order if appealed or modified in the future.

(b) These guidelines do not take into account the economic impact of the following factors and can be possible reasons for deviation:
(1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;
(2) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions);
(3) Families with more than six children;
(4) Long distance visitation costs; or
(5) The child resides with third party.;
(6) The needs of another child or children to whom the obligor owes a duty of support;
(7) The extent to which the obligor's income depends on nonrecurring or nonguaranteed income; or
(8) Whether the total of alimony, child support and child care costs subtracted from an obligor's income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child's household to less than the federal poverty level.

§48A-1B-16. Investment of child support.

(a) A circuit judge has the discretion, in appropriate cases, to direct that a portion of child support be placed in trust and invested for future educational or other needs of the child. The family law master family court judge may recommend and the circuit judge may order such investment when all of the child's day-to-day needs are being met such that, with due consideration of the age of the child, the child is living as well as his or her parents.

(b) If the amount of child support ordered per child exceeds the sum of two thousand dollars per month, the court is required to make a finding, in writing, as to whether investments shall be made as provided for in subsection (a) of this section.

(c) A trustee named by the court shall use the judgment and care under the circumstances then prevailing that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. A trustee shall be governed by the provisions of the uniform prudent investor act as set forth in article six-c, chapter forty-four of this code. The court may prescribe the powers of the trustee and provide for the management and control of the trust. Upon petition of a party or the child's guardian or next friend and upon a showing of good cause, the court may order the release of funds in the trust from time to time.

§48A-1B-17. Operative date of certain amendments.

The amendments to this article made during the second extraordinary session of the Legislature, one thousand nine hundred ninety-nine, are operable after the thirtieth day of September, one thousand nine hundred ninety-nine.