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How to Pay Child Support in Pennsylvania

by bvertz on Nov 10, 2011 • Comments Closed • , ,

“How do I pay my child support?” is a question I am frequently asked by clients. Pursuant to federal and state law, child support orders must be paid via wage attachment unless the support recipient agrees in writing to waive it. Even if the wage attachment is waived, the payments must be submitted to the Pennsylvania State Collection and Disbursement Unit in Harrisburg (which we call “SCDU” or “Ski-Doo”).

Federal law imposes a limitation on how much money SCDU can deduct from a payor’s wages: 50% of the payor’s net income if he is supporting a second family or 60% if he is not. If a support order exceeds the applicable cap, then the payor is required to submit a supplemental payment every pay period to make up the difference. This supplemental payment must be made through PA-SCDU in Harrisburg, not directly to the recipient.

The most common situation where the wage attachment is more than 50% is where the payor earns bonuses or overtime that are counted as part of his net income. Those bonuses or overtime are annualized or averaged over the course of a year when calculating net available income, but most paychecks are below average with a few “big” paydays during the year. Sometimes, when payors are paid bi-weekly (26 times per year), the same problem occurs.

Calculating the supplemental payment that the payor must submit can be challenging, but it can be done. Here’s how I do it:

1. First, figure out how much you are required to pay each pay period. The support order is expressed in monthly amounts, so multiply the monthly support order times twelve (x 12). This yields the annual support amount.

2. Next, divide the annual support amount by the number of pay periods per year. If you are paid bi-weekly, divide by 26. If you are paid twice per month on the fifteenth and thirtieth, divide by 24. If you are paid monthly or weekly, divide by 12 (monthly) or 52 (weekly). This calculation yields the support amount per pay period.

3. Next, subtract the “support amount per pay period” from the wage attachment that appears on your pay stub. The difference is the supplemental amount that you should submit.

PA-SCDU will accept payments by check, money order, credit card, or electronic funds transfer. There is lots of good information about paying child support on the PA-SCDU website.

Pennsylvania Child Support Guidelines Amended

by bvertz on Sep 22, 2011 • Comments Closed • , , ,

The Pennsylvania child support guidelines were modified slightly on August 3, 2011, effective September 3, 2011.

1. Shared Custody Adjustment. The guidelines grant a reduction in child support for parents who have custody of their children 40% to 50% of the time. (No adjustment is authorized if a parent has custody less than 40% of the time.) Still, the guidelines did not explain how to apply this adjustment when there were multiple children with different custody schedules. Now, in cases where there is more than one child, and each child spends different amounts of time with each parent, the Rules require the court to take an average percentage. If the average percentage is more than 40%, then the reduction in child support will be applied. The modified rules also clarify that high income cases are subject to the shared custody adjustment.

2. Medical insurance premiums. A sentence has been added to the medical insurance provisions of the child support guidelines to clarify that the insurance premium paid by the parent who owes child support shall not be allocated between the parents.

3. Social Security benefits. The guidelines previously provided that Social Security benefits being received by a child would be added to the parents’ net incomes and then deducted from the child support award. A sentence has been added to state that this applies only if the parent who receives child support is receiving the Social Security benefit for the child. If the parent who pays child support receives the benefit, the benefit is added to that parent’s income and is not deducted from the child support award.

4. Right to initiate support. The new rules provide that a parent or spouse who owes support may initiate the action, which is a significant change from the past that allows a support-owing spouse to obtain the tax advantages of a written order. The parent who has primary custody is the parent who will receive child support. In cases where custody is shared equally, the parent who has less income will receive child support.

Additio

Child Support Contempt Defendants Not Entitled to Counsel, Says U.S. Supreme Court

by bvertz on Aug 16, 2011 • Comments Closed • , , , , , , ,

Child support contempt defendants are not entitled to court-appointed representation even in cases where incarceration is threatened, says the U.S. Supreme Court, but the state courts must follow procedures that ensure the fundamental fairness of contempt proceedings. In Turner v. Rogers, Docket No. 10-10, June 20, 2011, the Court considered the rights of a South Carolina defendant who had been held in contempt of a child support order five times in three years. Each time, the Defendant Michael D. Turner (“Father”) paid the purge condition, twice without being jailed and twice after being jailed for a few days. In the fifth proceeding, Father did not pay and served a six month sentence in jail. Just weeks after his release, Mr. Turner received another hearing notice to show cause why he should not be held in contempt.

At the sixth contempt hearing, Father testified that he had been addicted to meth and marijuana, broke his back, and applied for disability and SSI. He was approximately two years behind in child support payments. He asked the trial court for an opportunity to catch up. The trial court held him in contempt, sentencing him to one year in jail with no good-time or work credits, but eligible for work release if he could find a job. The trial judge’s ruling did not explicitly address Father’s ability to pay and left blank the areas in a preprinted form where the court could indicate whether the defendant was working and had the ability to pay.

While serving time, Father filed an appeal with the assistance of pro bono counsel. The South Carolina Supreme Court rejected his argument that he was entitled to court-appointed counsel at his civil contempt hearing under the U.S. Constitution, distinguishing civil contempt proceedings from criminal contempt. The U.S. Supreme Court granted certiorari, noting a split among state supreme courts concerning the right to counsel in civil contempt proceedings.

The U.S. Supreme Court first considered whether the 14th Amendment due process clause guarantees indigent contemnors the right to court-appointed representation in civil contempt proceedings that may lead to incarceration, a novel federal question[1] distinct from the 6th Amendment right to counsel in criminal proceedings (including criminal contempt). The Court reiterated the well-known principle that civil contempt proceedings are intended to coerce the defendant to comply with a court’s order, rather than to punish, and that a defendant may not be held in contempt where he or she lacks the ability to comply. The defendant “carries the keys of his prison in his own pockets” and is purged of civil contempt when he complies with the order. Id.

The Court acknowledged that the 14th Amendment due process clause offers fewer procedural protections in civil cases than the 6th Amendment in criminal cases, which is why the defendant may bear the burden in civil contempt proceedings to prove their inability to comply. See Hicks v. Feiock, 485 U.S. 624 (1988); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442 (1911); accord, Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Travitsky v. Travitsky, 534 Pa.Super. 1081 (Pa.Super.1987).

Next, the Supreme Court examined the role of civil contempt proceedings in family law, which is to ensure the payment of funds necessary for the support of children, often to reimburse welfare funds paid by the states to indigent families. The Court observed the complex network of regulations and agencies established to regulate and monitor child support collections, including expedited procedures, statewide guidelines, mandatory wage attachment, and interstate reporting and enforcement.

The Court in Turner also referenced its earlier decision in Matthews v. Eldridge, 424 U.S. 319, 335 (1976), which established three criteria for measuring the fundamental fairness of civil proceedings under the 14th Amendment due process clause: (1) the private interest to be affected in the proceeding; (2) the risk of erroneous deprivation of that interest with and without additional or alternative procedural safeguards; and (3) the governmental interest involved, including the fiscal and administrative burdens the additional procedural requirements would entail. Accord, Corra v. Coll, 451 A.2d 480 (Pa.Super. 1982). Applying those criteria, the Turner Court found that the defendant’s private interest in personal liberty was a strong factor in favor of court-appointed representation, particularly in ensuring accurate decision-making on the issue of the defendant’s ability to comply. The Court stated that “an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.” Id.

Yet, the Supreme Court held that three other considerations weighed more heavily in favoring of not requiring court-appointed counsel in civil child support contempt proceedings. Those considerations were: (1) the relative simplicity of judging the contemnor’s ability to pay; (2) the risk of assymetry in a category of cases where the custodial parent seeking enforcement is equally likely to be indigent; and (3) the availability of alternative procedural safeguards, including notice to the defendant that “ability to pay” is a critical issue in the hearing, the use of forms to elicit the defendant’s financial information, the opportunity for a defendant to testify about his or her ability to pay and an express finding by the court about the defendant’s ability to pay. Ultimately, the Court held that these procedural safeguards might be an adequate substitute for court-appointed legal representation in child support contempt proceedings.

Interestingly, the Supreme Court noted that its decision did not apply to Title IV-D cases where the primary purpose of the contempt hearing is the collection of child support to reimburse welfare payments made to the custodial parent. Comparing those cases to “debt collection proceedings,” the Court found that the state is likely to have legal representation. The Court did not specifically rule on that category of cases, but its silence is not mute. The Court also declined to rule on complex cases “where a defendant can fairly be represented only by a trained advocate.” These clarifications greatly limit the scope of the Court’s decision in Turner.

Turning to the facts of the case, the U.S. Supreme Court found that Father was neither afforded counsel nor the benefit of alternative procedural safeguard to ensure fundamental fairness. He did not receive clear notice that his ability to pay was a critical issue, nor a form to elicit his financial information. The trial court had left blank the portion of its order where a finding of the defendant’s ability to pay should be completed. The decision was vacated and case remanded for further proceedings.

Four Justices, led by Justice Thomas, dissented from the majority opinion authored by Justice Breyer. First, Justice Thomas wrote that even the Sixth Amendment does not guarantee the right to court-appointed counsel in criminal proceedings, but merely “the right to employ counsel,” as it was “originally understood.” Justice Thomas also noted that Father had cited no binding authority requiring the appointment of counsel in civil contempt proceedings. (This portion of the dissenting opinion was not joined by Justices Roberts and Alito.)

Justice Thomas went on to say that even under the Court’s “modern interpretation” of the Constitution, the Due Process Clause does not require the appointment of counsel for indigent defendants facing incarceration in civil contempt proceedings. The Gideon protections afforded to criminal defendants under the Sixth Amendment does not extend beyond criminal proceedings under existing law and precedent. Gideon v. Wainwright, 372 U.S. 335 (1963). The Justice rejected Father’s argument that due process requires the extension of those protections to civil proceedings where imprisonment is possible. Justice Thomas cited a string of cases where the Court had rejected pleas for the appointment of counsel in civil cases on the grounds of due process and fundamental fairness, including Lassiter, Gagnon, and Middendorf, supra.

Finally, Justice Thomas attacked the majority’s ruling that civil contempt proceedings require procedural safeguards in lieu of court-appointed counsel in cases where imprisonment is threatened. The Justice expressed his opinion that the issue had not been argued or developed in the state court proceedings, and was first raised by the Solicitor General in an amicus brief. No substantive argument was offered by Justice Thomas in opposition to this aspect of the Court’s decision, other than carping about the manner in which the issue had been raised on appeal. The Justice concluded his dissent by remarking on the hopelessness of attempting to collect child support, and the immorality of parents who do not raise their children within the confines of intact marriages.


[1] The Court noted analogous, but not controlling, decisions in civil cases involving juvenile delinquency, In re Gault, 387 U.S. 1 (1967); involuntary hospitalization of inmates, Vitek v. Jones, 445 U.S. 480 (1980); and termination of parental rights, Lassiter v. Dept. of Soc. Srvcs. of Durham Cty., 452 U.S. 18 (1981). While these cases held generally that defendants facing incarceration are entitled to legal representation, the Court also noted cases where the threat of imprisonment did not create a right to counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation); Middendorf v. Henry, 425 U.S. 25 (1976) (court-martial).

Homeschooling Children Does Not Justify Alimony, says Superior Court

by bvertz on Mar 19, 2011 • Comments Closed • , , , , ,

In Kent v. Kent (March 18, 2011), the Superior Court of Pennsylvania rejected a parent’s argument that she should be entitled to collect alimony for a period of eleven years so that she could continue to homeschool the parties’ minor children. It was undisputed in this case that the mother had withdrawn from the workforce five years earlier in order to home-school the parties’ children, which she continued to do up to the date of trial. The wife had resigned her position as a teacher and began to collect a reduced public pension in order to supplement the family’s finances. The husband argued that homeschooling was not a joint decision and did not require so much of wife’s time as to prevent her from working. The trial court awarded alimony to wife for a period of three years rather than the requested eleven years.

On appeal, the Superior Court cited the paucity of controlling case law. The Court observed that a body of law concerning the payment of private school tuition (Fitzgerald, Gibbons, et al) did not control, since those cases were governed by the child support guidelines, not the statutory alimony criteria (where a spouse’s ability to become self-supporting through appropriate employment is paramount). Instead, the Court relied upon a decision of the Arkansas Supreme Court, holding that alimony was appropriate where the homeschooling parent had no employable skills, education or experience.

Examining the wife’s work history in this case, the Superior Court affirmed the trial court’s finding that the homeschooling wife was capable of returning to work within three years. The Court also endorsed the husband’s reasoning that economic decisions made during coverture might no longer be viable when an intact family breaks into two separate households. The Court emphasized that its decision was not motivated by a policy against homeschooling, but a simple affirmance of the trial court’s application of statutory criteria.

10 Cash Flow Rules In Divorce (Part I)

by bvertz on Sep 28, 2010 • Comments Closed • , , , , , , , , ,

In business, they say, cash flow rules. The same principle is true, I find, in divorce. I have been brainstorming a set of cash flow “rules” for divorcing spouses. Here is part one:

1.  Never run out of cash. My #1 divorce rule is the as Inc Magazine‘s #1 business rule. In divorce, there is a period of time immediately following separation when a divorcing spouse’s cash flow may be particularly vulnerable. Spouses who are not working need to know that litigation might drag on for weeks before the support payments will begin. In order to meet routine financial obligations (bills, loans, credit cards), divorcing spouses should be sure to have a two months’ supply of cash before separating.

2. When it is impossible to increase income, reduce spending. Some divorcing spouses expect to preserve the standard of living they have always enjoyed, but it is just not possible.  In fact, the law does not guarantee it.  Our judges know that two households cannot be run as cheaply as one, so it is necessary to cut corners. Many families are living beyond their means or just scraping by. Divorce did not create the problem and cannot solve it. If your cash flow is not enough to pay the expenses, you must reduce expenses.

3. House-poor or pension-poor is just plain poor. Liquidity is a valuable resource. Some divorcing spouses insist on keeping a house or pension instead of assets that can be converted to cash more easily. Kids can’t eat a house. A pension won’t pay the light bill if you are 45 years old. Even though you may have worked your whole life to earn that pension or create a great home for your kids, you might be better off trading it away or selling it to generate cash that will pay the bills. You will sleep better at night.

4.  Credit borrowing does not equal cash flow. Loans and credit cards are temporary – and very expensive – ways of dealing with inadequate cash flow. By borrowing, you may be digging a deeper financial hole for your future. Do not borrow unless you have a sure means of paying off the loan or credit card within a year or less.

5.  Build earning capacity. We have all heard the story about the father who is refusing overtime at work so that he will not have to pay more child support or the mother who is waiting until the divorce is concluded before she returns to college. It might seem like an attractive strategy, but it always backfires. The sooner that you enhance your cash flow, the sooner you will restore your financial stability.

International Child Support and Custody Disputes

by bvertz on Jul 5, 2010 • Comments Closed • , , ,

An article in the ABA Journal this month focuses attention on the growing problem of international child support and custody disputes. With the advent of global travel and internet relationships, more and more parents are facing the challenge of enforcing child support and custody orders across national boundaries. Some parents describe experiences that sound like scenes from a James Bond movie, as their children have been abducted around the globe. International treaties have been helpful but are very limited in their ability to bring an end to such practices.  The Hague Convention on Civil Aspects of International Child Abduction provides a mechanism to enforce custody orders and allocate jurisdiction in custody disputes, but only 82 nations have ratified the treaty. China, Japan and India are examples of major countries who have not ratified the custody treaty.

An international child support treaty (The Hague Convention on the International Recovery of Child Support) was drafted in 2007. It has been signed by only one country, the United States, and even our Senate has not ratified the treaty. Child support enforcement remains a difficult problem for parents who exes have retreated to foreign lands. The ABA article cites the U.S. Supreme Court’s recent decision in Abbott as a hopeful sign that our courts will enforce these international treaties, but we cannot always expect reciprocal action abroad. This is one reason why child support agreements can be useful. A contract between parents may not be strictly enforced everywhere in the world, but it can be the “foot in the doorjamb” that makes a difference.

Another State Stops Child Support for College Students

by bvertz on May 1, 2010 • Comments Closed • , , , , ,

A decision issued two weeks ago makes South Carolina the latest state to overturn its laws granting child support to college students. In Webb v. Sowell (April 19, 2010), the South Carolina Supreme Court held that the law could not treat separated or divorced parents differently than married parents, who have no legal obligation to pay their children’s college tuition. Such laws, it held, violate the equal protection clause of the federal and state constitutions, and no rational basis exists for treating divorced or separated parents differently. This decision, from which two justices dissented, struck down more than thirty years of law in South Carolina.

Nearly twenty years ago, the Pennsylvania Supreme Court reached a similar conclusion in Blue v. Blue, 432 Pa. 521, 616 A.2d 628 (1992). Interestingly, the Pennsylvania Supreme Court had never touched the issue before Blue, even though trial and appellate courts had been awarding college support in Pennsylvania since 1963. South Carolina’s top court, on the other hand, had granted college support in 1979, reversing itself this year.

Legislative efforts in Pennsylvania following Blue resulted in a statute granting college support to the children of separated and divorced parents. The Pennsylvania Legislature made findings that the children of separated and divorced parents have special needs and circumstances which justify a different treatment than the children of intact families. The Pennsylvania Supreme Court disagreed, striking down the law in Curtis vs. Kline, 542 Pa. 249, 666 A.2d 265 (1995). The law remains on the books but has no legal effect due to the Curtis decision.

Constructive Notice is Sufficient in Child Support Cases

by bvertz on Apr 30, 2010 • Comments Closed • ,

In Murphy v. Murphy, a recent Superior Court decision, the father appealed a support order entered in absentia because he claimed that he never received notice of the June 2008 support hearing. The father argued that the notice mailed to him was too late (less than 20 days before the hearing, contrary to Rule 1910.6) and was not adequately proven to have been mailed at all, since the only evidence was the notation “Service Type M” on the scheduling order.

For her part, the mother argued that the father’s appeal was untimely. Father did not appeal the resulting support order, claiming that he never knew of the hearing and was not served with the support order. Instead he filed a Motion to Relist Hearing approximately 39 days after the hearing, on which the trial court did not rule for six months. Father eventually appealed the December 2008 order denying his Motion to Relist, but solely pertaining to the court’s alleged failure to serve notice of the June 2008 hearing. The Superior Court held that the appeal should have been taken from the June 2008 hearing, and that the trial court lost its jurisdiction to act upon the Motion to Relist because it was untimely under 42 Pa.C.S. 5505 (30 day limit on modification or rescission of court orders).

An interesting side note: in Murphy, the trial court imputed an earning capacity for father based upon tax documents issued to the father years ago. The father failed to appear at several hearings or produce evidence of his income, so the trial court felt free to make adverse inferences.

Premature Termination of Child Support Reversed, Affirmed

by bvertz on Apr 27, 2010 • Comments Closed • , , ,

In the recent Superior Court decision, Castadi v. Castaldi, the Domestic Relations Section mailed notices to the child’s mother inquiring whether child support should terminate in January 2007, when the child would be eighteen years old. Mother did not respond to the inquiries, and the Domestic Relations Section terminated child support. Unbeknownst to the DRS, the child had not yet completed 12th grade.

In the summer in 2007, the mother contacted DRS and notified them that the child had not graduated high school until June 2007. The DRS administratively amended the support arrears, adding an additional 6 months of arrears for which the father was responsible. The father filed a petition seeking to rescind the additional arrears, which was denied by the trial court. The Superior Court affirmed.

In its opinion, the Superior Court first confirmed that the child support order should have continued until the later of the child’s 18th birthday or high school graduation. The Court distinguished Style v. Shaub, in which the DRS administratively terminated child support after the child had turned 18 and graduated from high school. The Court held that DRS had continuing jurisdiction pursuant to Section 4352(e) to amend the arrears and was authorized to correct its error in terminating child support prematurely. The Court held that the mother was not estopped by failing to respond to the DRS inquiries.

Six Most Important Child Support Cases

by bvertz on Mar 1, 2010 • Comments Closed • , , ,

For each of the past four years, I have been privileged to teach lawyers about the latest developments in child support as one of the hosts of Family Law Update, a satellite broadcast presentation sponsored by the Pennsyvlania Bar Institute. Since I joined the panel in 2005, several important decisions have influenced the direction of Pennsylvania child support law. Here is my summary of the six most important cases (and one change in the law itself) since 2005:

#6 – Reinert v. Reinert, 926 A.2d 539 (Pa.Super.2007). The Superior Court in this case affirmed the continuing viability of the “nurturing parent doctrine,” a policy in which the courts may excuse the mother of a young child from working to contribute toward the support of the child. Prior to this decision, it was established that a mother may refrain from working even to raise the child of a subsequent relationship. Yet, in Reinert, the Superior Court took the policy to its extreme. The Court terminated the support obligation of a mother who did not have custody of her eldest child when she gave birth to twins by a subsequent relationship and elected to stay at home to raise them.

#5 – Murphy v. McDermott, 2009 WL 2365992 (2009). The question of whether a parent must pay private school tuition may be raised in child support proceedings, but it is also a legal custody issue. The problem is: the legal standards to answer that question are different in support and custody proceedings. The Murphy case demonstrates how important “status quo” can be, compelling a parent to pay tuition even if he or she objected at the time when the child was enrolled in private or parochial school. The lesson: parents must get involved in the choice of schooling before the question of paying comes up.

#4 – Berry v. Berry, 2006 Pa.Super. 98 (2006). When child support becomes an issue between divorcing parents, the courts must decide whether certain income sources – such as pensions, rental properties and businesses – should be considered as marital property or income for support purposes. Generally, they cannot be both. In Berry, the Superior Court held that severance pay would be counted as marital property if acquired before separation or income if acquired after separation.

#3 – Estate of Johnson, 970 A.2d 433 (Pa.Super.2009). While this decision might be limited to its unique factual circumstances, the Superior Court certainly affected settlement practice by holding the estate of a deceased parent responsible for the payment of child support. The deceased parent had entered into a marital settlement agreement with his ex-wife, promising to pay child support until the youngest child was 18 years of age. The agreement did not specify whether the obligation would terminate upon the death of a parent, so the court held that it did not. The estate ended up owing nothing, however, because the Social Security derivative benefits received by the child as a result of the parent’s death satisfied the child support obligation. This case has prompted many lawyers to specify death as cause for terminating child support in their agreements, and has also motivated support recipients to demand life insurance as a security device.

#2 – Krebs v. Krebs, 944 A.2d 487 (Pa.Super.2008). The Superior Court fortified its prior admonitions warning support payors to report increases in their income. In cases where a payor fails to report an increase, even an increase not precipitated by a job promotion or change in employers, the court may increase child support retroactively to the date when the income increase occurred, even years later. The Superior Court in Krebs granted such a retroactive increase in child support even after the custodial parent

#1 – The 2010 Amendments to the Pennsylvania Child Support Guidelines. The 2010 amendments eliminated the Melzer formula, which was a budget-based method of calculating child support in high-income cases. The uppermost limits of the child support guidelines have been extended to $30,000 per month combined net income, and an income-based formula has been promulgated to calculate child support in high-income cases.