The Alimony Hidden in Child Support

by Roger F. Gay

History of the Project:
Project for the Improvement of Child Support Litigation Technology began in 1989. It was at this time that the United States was on the brink of a major change in the way child support award decisions are made. A federal law, known as the Family Support Act of 1988, required each state to base every award decision on formulae known as "child support guidelines." As a result of this legislation, award amounts have increased dramatically from those awarded according to the legal principles that had been established in the states.

The most fundamental problem resulting from the federal legislation is that rigid mathematical formulae have replaced the rational principles upon which child support decisions had been made. In traditional child support statutes, a definition of child support was given along with a set of principles for guiding complicated decisions. A traditional definition would state that child support is an amount paid by a non-custodial parent for his or her share of the actual and necessary needs of children. Additional guiding principles could include a reasonable consideration for sheltering children from the standard of living loss that accompanies divorce, and that both parents have an equal duty to support their children. Statutes could also explicitly include such considerations as the need for each parent to support themselves, time the non-custodial parent spends with their children, and travel expenses involved with visitation.

New child support statutes typically do not provide an alternative definition for child support. They are based on arbitrary analysis of national data on family spending and do not correspond to any set of rational principles for making an award decision. Therefore, it has been necessary to rely on traditional principles for research on developing better child support guidelines. It was discovered early in the project that there are two concepts that are fundamentally important to traditional thinking. The first is the "equal duty principle" (both parents have an equal duty to support their children). The second is "ability to pay." One deals with the issue of fairness, the other with practicality. Both are needed as the basis of a good judgment.

It is simplest to describe the equal duty principle by first saying what it does not mean. It does not mean that both parents should pay the same amount toward support of their children. The award decision takes into consideration other important factors, including each parent's ability to pay. When all is considered, "ability to pay" is not equivalent to income, as it appears to be in the Income-Shares (example: New Jersey guidelines) and Percent-of-Income (example: Wisconsin guidelines) formulae. (These are the most commonly used types.) There was an established prohibition against taking from a parent for support of children, so much that a parent is no longer capable of self-support.

Many of the portions of the current PICSLT model can be found in previous work. Anyone wishing to delve deeply into the detailed mathematics of child support, should begin by reading "How to Calculate Child Support," by Maurice Franks (Case & Comment, January-February, 1981). Franks provided the most complete Income-Shares model ever published, which included detailed mathematics for accounting for children's time with each parent, how to deal with "extraordinary" expenses (expenses that are not included in the standard table), and joint custody. Oddly enough, more recent authors of Income-Shares models have claimed an inability to perform these simple operations.

In the limited way of the Income-Shares approach, Franks dealt very logically with the equal duty principle. The first step toward improvement upon Franks' model was to replace income with a more sophisticated view of ability to pay. Some newer models deduct a standard amount required for support of one adult from each parent's net income before performing the child support calculation. The remaining income represents "ability to pay."

There are reasons to believe that this approach is too simple. If a parent uses part of his remaining income to purchase tools necessary for work, for example, that amount is additionally needed for self-support. Ability to pay a "standard" amount of child support is also changed by "extraordinary" expenses. When a parent must pay an extraordinary amount of medical expenses, for example, their ability to pay for standard expenses can be significantly reduced. The PICSLT model uses a few simple mathematical operations to account for a wide range of circumstances that effect actual "ability to pay."

Several new equations were developed for the first version PICSLT model that were later replaced by a completely new basic formula for child support. Of the technology that remains in the most recent version, there is only one more major area to discuss--the numeric table. This important component had also received attention in previous work by others. A most intriguing view was expressed in a report for the Washington State Association of Superior Court Judges (1982). The author of the report, William Hewitt, noted that data and methods used to estimate the amounts families spend on children were woefully inadequate. Yet most numeric tables used in guidelines today are a direct product of such estimates.

The better approach is to build a standard table giving separate costs related to different spending categories; housing, transportation, food, etc. The amounts listed in each category should be determined from court case experience in which many individual cases have been decided in full view of all relevant facts. Another advantage identified in the PICSLT work is that the categorical approach provides a way of comparing individual case circumstances with the amounts listed in the standard table. If for example, a divorce settlement provides a custodial parent with a house that is paid for, then understanding the details of the number listed under "housing" can greatly assist a judge in adjusting the award. A detailed look at modern cost analysis is given by Robert Braid (see The Children's Advocate, November 1994, Vol. 7, No. 3).

PICSLT has not studied a large number of real cases to develop a table. In order to estimate appropriate values, another approach described by Hewitt has been used. It begins with estimates of spending on children from national data, separated into spending categories. PICSLT selected estimates of spending on children by single parents developed by the USDA. The USDA work is exceptionally clear in explaining precisely how the numbers in each category are derived. It is better to start with a clear understanding of what one has, so that it can clearly be compared with what we would like to have. The numbers are then reduced in proportion to the marginal cost of children, with each category receiving an independent appraisal. We then have a table with values that can each be understood in the context of a rational child support decision process and compared with evidence provided in each case.

The first version PICSLT model can be seen largely as arising from the integration of selected portions of other models. Reasonable modifications were made to complete the integration. Special adjustments were needed to assure that a low income mother is able to maintain a household, for example, even after a support payment is reduced for visitation time. An additional formula was created to adjust child support payments to show what could be done to reduce welfare dependency. Although joint and sole custody cases could be handled with the same model, special additions were needed when either parent remarried or had other children to support.