West Virginia Code
1 - GENERAL PROVISIONS; DEFINITIONS
2 - MARRIAGES
3 - PROPERTY, RIGHTS AND LIABILITIE
4 - SEPARATE MAINTENANCE
5 - DIVORCE
5A - COLLABORATIVE FAMILY LAW PROCE
6 - APPENDICES
7 - EQUITABLE DISTRIBUTION OF PROPE
8 - SPOUSAL SUPPORT
9 - ALLOCATION OF CUSTODIAL RESPONS
10 - GRANDPARENT VISITATION
11 - SUPPORT OF CHILDREN
12 - MEDICAL SUPPORT
13 - GUIDELINES FOR CHILD SUPPORT
48 - 13 - 101
48 - 13 - 102
48 - 13 - 103
48 - 13 - 201
48 - 13 - 202
48 - 13 - 203
48 - 13 - 204
48 - 13 - 205
48 - 13 - 301
48 - 13 - 302
48 - 13 - 303
48 - 13 - 401
48 - 13 - 402
48 - 13 - 403
48 - 13 - 404
48 - 13 - 501
48 - 13 - 502
48 - 13 - 503
48 - 13 - 601
48 - 13 - 602
48 - 13 - 603
48 - 13 - 701
48 - 13 - 702
48 - 13 - 703
48 - 13 - 801
48 - 13 - 802
48 - 13 - 803
48 - 13 - 804
48 - 13 - 901
48 - 13 - 902
14 - REMEDIES FOR THE ENFORCEMENT
15 - ENFORCEMENT OF SUPPORT ORDER
16 - UNIFORM INTERSTATE FAMILY SUP
17 - WEST VIRGINIA SUPPORT ENFORCE
18 - BUREAU FOR CHILD SUPPORT ENFO
19 - BUREAU FOR CHILD SUPPORT ENFO
20 - UNIFORM CHILD CUSTODY JURISDI
21 - RESERVED
22 - ADOPTION
23 - VOLUNTARY ADOPTION REGISTRY
24 - ESTABLISHMENT OF PATERNITY
25 - CHANGE OF NAME
25A - MATERNAL MORTALITY REVIEW TE
26 - DOMESTIC VIOLENCE ACT
27 - PREVENTION AND TREATMENT OF D
27A - DOMESTIC VIOLENCE FATALITY R
28 - UNIFORM INTERSTATE ENFORCEMEN
28A - ADDRESS CONFIDENTIALITY PROG
29 - PROPERTY, RIGHTS AND LIABILIT
30 - PROCEEDING BEFORE A FAMILY LA
31 - UNIFORM DEPLOYED PARENTS CUST
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-101. Guidelines to ensure uniformity and increase predictability; presumption of correctness.
This article establishes guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders. There is a rebuttable presumption, in any proceeding before a court for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.
The Legislature recognizes that children have a right to share in their natural parents' level of living. Expenditures in families are not made in accordance with subsistence level standards, but are made in proportion to household income, and as parental incomes increase or decrease, the actual dollar expenditures for children also increase or decrease correspondingly. In order to ensure that children properly share in their parents' resources, regardless of family structure, these guidelines are structured so as to provide that after a consideration of respective parental incomes, child support will be related, to the extent practicable, to the standard of living that children would enjoy if they were living in a household with both parents present.
The guidelines promulgated under the provisions of this article take into consideration the financial contributions of both parents. The Legislature recognizes that expenditures in households are made in aggregate form and that total family income is pooled to determine the level at which the family can live. These guidelines consider the financial contributions of both parents in relationship to total income, so as to establish and equitably apportion the child support obligation.
§48-13-201. Use of both parents' income in determining child support.
A child support order is determined by dividing the total child support obligation between the parents in proportion to their income. Both parents' adjusted gross income is used to determine the amount of child support.
§48-13-202. Application of expenses and credits in determining child support.
In determining the total child support obligation, the court shall:
(1) Add to the basic child support obligation 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; and
(2) Subtract any extraordinary credits agreed to by the parents or ordered by the court.
The amount of support resulting from the application of the guidelines is presumed to be the correct amount, unless the court, in a written finding or a specific finding on the record, disregards the guidelines or adjusts the award as provided for in section 13-702.
The calculation of the amount awarded by the support order requires the use of one of two worksheets which must be completed for each case. Worksheet A is used for a basic shared parenting arrangement. Worksheet B is used for an extended shared parenting arrangement.
To the extent practicable, all information relating to income shall be presented to the court based on monthly amounts. For example, when a party is paid wages weekly, the pay should be multiplied by fifty-two and divided by twelve to arrive at a correct monthly amount. If the court deems appropriate, such information may be presented in such other forms as the court directs.
§48-13-301. Determining the basic child support obligation.
The basic child support obligation is determined from the following table of monthly basic child support obligations:
If combined adjusted gross income is below $550 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 $50 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.
If combined adjusted gross income is above $15,000 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 $15,000. The court may also compute the basic child support obligation for combined adjusted gross incomes above $15,000 by the following:
(1) One child -- $1,338 + 0.088 x combined adjusted gross income above $15,000 per month;
(2) Two children -- $1,934 + 0.129 x combined adjusted gross income above $15,000 per month;
(3) Three children -- $2,276 + 0.153 x combined adjusted gross income above $15,000 per month;
(4) Four children -- $2,515 + 0.169 x combined adjusted gross income above $15,000 per month;
(5) Five children -- $2,726 + 0.183 x combined adjusted gross income above $15,000 per month; and
(6) Six children -- $2,917 + 0.196 x combined adjusted gross income above $15,000 per month.
§48-13-401. Basic child support obligation in basic shared parenting.
For basic shared parenting 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.
For basic shared parenting cases, the total basic child support obligation is divided between the parents in proportion to their income. From this amount is subtracted the payor's direct expenditures of any items which were added to the basic child support obligation to arrive at the total child support obligation.
§48-13-403. Worksheet for calculating basic child support obligation in basic shared parenting cases.
Child support for basic shared parenting cases shall be calculated using the following worksheet:
Worksheet A: BASIC SHARED PARENTING
IN THE FAMILY COURT OF __________ COUNTY, WEST VIRGINIA CASE NO.________
Mother: ______________ SS No.: ________________ Primary Custodial parent? Yes No
Father: _______________ SS No.: ________________ Primary Custodial parent? Yes No
In cases where the payor parent's adjusted gross income is below $1,550 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.
(1) Child support at the amount determined in Part I; or
(2) The difference between eighty percent of the payor parent's adjusted gross income and $500, or fifty dollars, whichever is more.
OR SPLIT PHYSICAL CUSTODY CASES.
§48-13-501. Extended shared parenting adjustment.
Child support for cases with extended shared parenting is calculated using Worksheet B. The following method is used only for extended shared parenting: That is, in cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent).
(1) The basic child support obligation is multiplied by 1.5 to arrive at a shared parenting basic child support obligation. The shared parenting 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 parenting 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.
(2) 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 less any extraordinary credits agreed to by the parents or ordered by the court 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 less any extraordinary credits agreed to by the parents or ordered by the court 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.
(3) 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 subdivisions (1) and (2) of this section. The respective sums are then offset, with the parent owing more paying the other parent the difference between the two amounts.
Child support for extended shared parenting cases shall be calculated using the following worksheet:
Worksheet B: extended shared parenting
IN THE FAMILY COURT OF ______________ COUNTY, WEST VIRGINIA
CASE NO. ____________
Mother: ___________________________ SS No.: __________
Father: ____________________________ SS No.: __________
In cases with split physical custody, the court shall use Worksheet A as set forth in section 13-403 to calculate a separate child support order for each parent based on the number of children in that parent's custody. Instead of transferring the calculated orders between parents, the two orders are offset. The difference of the two orders is the child support order to be paid by the parent with the higher sole-parenting order.
§48-13-601. Adjustment for child care tax credit.
(a) The amount of the federal tax credit for child care expenses that can be realized by the custodial parent shall be approximated by deducting twenty-five percent from work-related child care costs, except that no such deduction shall be made for custodial parents with monthly gross incomes below the following amounts:
(1) One child--$1,150;
(2) Two children--$1,550;
(3) Three children--$1,750;
(4) Four children--$1,950;
(5) Five children--$2,150; and
(6) Six or more children--$2,350.
(b) Work-related child care costs net of any adjustment for the child care tax credit shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.
(a) A child support order shall provide for the child's current and future medical needs by providing relief in accordance with the provisions of article 12-101, et seq., of this chapter.
(b) The payment of a premium to provide health insurance coverage on behalf of the children subject to the order is added to the basic child support obligation and divided between the parents in proportion to their adjusted gross income. The amount added to the basic child support obligation is the actual amount of the total insurance premium that is attributable to the number of children due support. If this amount is not available or cannot be verified, the total cost of the premium should be divided by the total number of persons covered by the policy. The cost per person derived from this calculation is multiplied by the number of children who are the subject of the order and who are covered under the policy.
(c) After the total child support obligation is calculated and divided between the parents in proportion to their adjusted gross income, the amount of the health insurance premium added to the basic child support obligation is deducted from the support obligor's share of the total child support obligation if the support obligor is actually paying the premium.
(d) Extraordinary medical expenses shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.
§48-13-603. Adjustment for obligor's social security benefits sent directly to the child; receipt by child of supplemental security income.
(a) If a proportion of the obligor's social security benefit is paid directly to the custodian of his or her dependents who are the subject of the child support order, the following adjustment shall be made. The total amount of the social security benefit which includes the amounts paid to the obligor and the obligee shall be counted as gross income to the obligor. In turn, the child support order will be calculated as described in sections 13-401 through 13-404. To arrive at the final child support amount, however, the amount of the social security benefits sent directly to the child's household will be subtracted from the child support order. If the child support order amount results in a negative amount it shall be set at zero.
(b) If a child is a recipient of disability payments as supplemental security income for aged, blind and disabled, under the provisions of 42 U.S.C. §1382, et seq., and if support furnished by an obligor would be considered unearned income that renders the child ineligible for disability payments or medical benefits, no child support order shall be entered for that child. If a support order is entered for the child's siblings or other persons in the household, the child shall be excluded from the calculation of support, and the amount of support for the child shall be set at zero.
§48-13-701. Rebuttable presumption that child support award is correct.
The guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.
(a) If the court finds that the guidelines are inappropriate in a specific case, the court 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 that may 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;
(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 spousal support, 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.
Upon his or her release from the custody of the Division of Corrections or the United States Bureau of Prisons, a person who is gainfully employed and is subject to a child support obligation or obligations and from whose weekly disposable earnings an amount in excess of forty percent is being withheld for the child support obligation or obligations may, within eighteen months of his or her release, petition the court having jurisdiction over the case or cases to restructure the payments to an amount that allows the person to pay his or her necessary living expenses. In order to achieve consistency and fairness, one judge may assume jurisdiction over all the cases the person may have within that circuit of the court. In apportioning the available funds, the court shall give priority to the person's current child support obligations: Provided, That a minimum of $50 per month shall be paid in each case.
§48-13-801. Tax exemption for child due support.
Unless otherwise agreed to by the parties, the court shall allocate the right to claim dependent children for income tax purposes to the payee parent except in cases of extended shared parenting. In extended shared parenting cases, these rights shall be allocated between the parties in proportion to their adjusted gross incomes for child support calculations. In a situation where allocation would be of no tax benefit to a party, the court need make no allocation to that party. However, the tax exemptions for the minor child or children should be granted to the payor parent only if the total of the payee parent's income and child support is greater when the exemption is awarded to the payor parent.
(a) The court 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 court 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 $2,000 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.
When the payor is not paying any current support obligation but is required to pay for arrearages or reimbursement support, the court shall set a payment amount for the repayment of reimbursement support or of a support arrearage that is reasonable pursuant to the provisions of this article or section 6-301, but not to exceed the limits set out in section 14-408.
(a) In any proceeding in which support is to be established, if a party has been served with proper pleadings and notified of the date, time and place of a hearing before a family court judge and does not enter an appearance or file a response, the family court judge shall prepare a default order for entry establishing the defaulting party's child support obligation consistent with the child support guidelines contained in this article.
(1) When applying the child support guidelines, the court may accept financial information from the other party as accurate, pursuant to rule 13(b) of the Rules of Practice and Procedure for Family Court; or
(2) If financial information is not available, the court may attribute income to the party based upon either:
(i) The party's work history;
(ii) Minimum wage, if appropriate; or
(iii) At a minimum, enter a child support order in a nominal amount unless, in the court's discretion, a zero support order should be entered.
(b) All orders shall provide for automatic withholding from income of the obligor pursuant to part 4, article fourteen of this chapter.
Acts, 2002 Reg. Sess., Ch. 18.
Acts, 2002 Reg. Sess., Ch. 18.