ENROLLED
Senate Bill No. 359
(By Senators Wooton, Anderson, Buckalew, Deem, Dittmar, Miller,
Schoonover, Scott, Ross, White and Yoder)
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[Passed March 9, 1996; in effect ninety days from passage.]
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AN ACT to repeal section six, article two-c, chapter forty-eight
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal section three-a, article
one, chapter forty-eight-a; to repeal section seventeen,
article two of said chapter; to repeal section seven, article
four of said chapter; to amend and reenact sections fifteen,
fifteen-a and thirty-two, article two, chapter forty-eight of
said code; to amend and reenact section three, article one,
chapter forty-eight-a of said code; to amend and reenact
sections one, four, twenty and twenty-three, article four of
said chapter; to further amend said chapter by adding thereto
two new articles, designated articles one-a and one-b; to
amend and reenact sections eleven and twenty-eight-a, article
one, chapter fifty-nine of said code; and to amend and
reenact section twenty-nine, article five, chapter sixty-one
of said code, relating to domestic relations and support obligations generally; reorganizing portions of the domestic
relations law to provide a new methodology for calculating
child support based on income shares; providing for relief
upon ordering divorce, annulment or separate maintenance;
providing for medical support; establishing a valuation date
for contingent and other future earned fees that are marital
property; defining certain terms that have application to
support enforcement; establishing guidelines for child
support awards; prescribing the method of calculating a child
support order; setting forth a table of monthly basic child
support obligations; providing for child health care as a
part of support; providing for work-related child care costs
as a part of support; computing child support order in a sole
custody case; computing child support in shared physical
custody case; computing child support in split physical
custody case; adjustment for social security benefits sent
directly to a child; application of guidelines; providing for
modification of support orders; allocation of tax exemption;
defining indebtedness; specifying when support guidelines may
be disregarded; presenting information on income based on
monthly amounts; creating an additional part-time family law
master; providing for circuit court review of a law master's
recommended order; prescribing fees to be charged by the clerk of the circuit court; disposition of fees; and defining
criminal offense of failure to meet obligation to provide
support, and providing penalties therefor.
Be it enacted by the Legislature of West Virginia:
That section six, article two-c, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section three-a, article one, chapter
forty-eight-a be repealed; that section seventeen, article two of
said chapter be repealed; that section seven, article four of said
chapter be repealed; that sections fifteen, fifteen-a and thirty-
two, article two, chapter forty-eight of said code be amended and
reenacted; that section three, article one, chapter forty-eight-a
of said code be amended and reenacted; that sections one, four,
twenty and twenty-three, article four of said chapter be amended
and reenacted; that said chapter be further amended by adding
thereto two new articles, designated articles one-a and one-b;
that sections eleven and twenty-eight-a, article one, chapter
fifty-nine of said code be amended and reenacted; and that section
twenty-nine, article five, chapter sixty-one of said code be
amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, for the
maintenance of the other party. Payments of alimony are to be
ordinarily made from a party's income, but when the income is not
sufficient to adequately provide for those payments, the court
may, upon specific findings set forth in the order, order the
party required to make those payments to make them from the corpus
of his or her separate estate. An award of alimony shall not be
disproportionate to a party's ability to pay as disclosed by the
evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce or
granting of decree of separate maintenance, the court may further
order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent:
Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion of any party, notice of hearing and hearing, the court shall issue an
order which provides a specific schedule of visitation by the
noncustodial parent;
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor children
of the parties in accordance with support guidelines promulgated
pursuant to section eight, article two, chapter forty-eight-a of
this code. Payments of child support are to be ordinarily made
from a party's income, but in cases when the income is not
sufficient to adequately provide for those payments, the court
may, upon specific findings set forth in the order, order the
party required to make those payments to make them from the corpus
of his or her separate estate;
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article;
(4) As an incident to requiring the payment of alimony or
child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of health
care and hospitalization of the other party:
Provided, That if
the other party is no longer eligible to be covered by such
insurance because of the granting of an annulment or divorce, the court may require a party to substitute such insurance with a new
policy to cover the other party or may consider the prospective
cost of such insurance in awarding alimony to be paid in periodic
installments. Payments made to an insurer pursuant to this
subdivision, either directly or by a deduction from wages, shall
be deemed to be alimony or installment payments for the
distribution of marital property, in such proportion as the court
shall direct:
Provided, however, That if the court does not set
forth in the order that a portion of such payments is to be deemed
installment payments for the distribution of marital property,
then all such payments made pursuant to this subdivision shall be
deemed to be alimony:
Provided further, That the designation of
insurance coverage as alimony under the provisions of this
subdivision shall not, in and of itself, give rise to a subsequent
modification of the order to provide for alimony other than
insurance for covering the costs of health care and
hospitalization;
(5) The court may grant the exclusive use and occupancy of
the marital home to one of the parties, together with all or a
portion of the household goods, furniture and furnishings
reasonably necessary for such use and occupancy. Such use and
occupancy shall be for a definite period, ending at a specific
time set forth in the order, subject to modification upon the petition of either party. Except in extraordinary cases supported
by specific findings set forth in the order granting relief, a
grant of the exclusive use and occupancy of the marital home shall
be limited to those situations when such use and occupancy is
reasonably necessary to accommodate the rearing of minor children
of the parties. The court may require payments to third parties
in the form of home loan installments, land contract payments,
rent, property taxes and insurance coverage if the amount of such
coverage is reduced to a fixed monetary amount set forth in the
court's order. When such third party payments are ordered, the
court shall specify whether such payments or portions of payments
are alimony, child support, a partial distribution of marital
property or an allocation of marital debt:
Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed child support or installment payments for
the distribution of marital property, then all such payments made
pursuant to this subdivision shall be deemed to be alimony. When
such third party payments are ordered, the court shall specify
whether such payments or portions of payments are alimony, child
support, a partial distribution of marital property or an
allocation of marital debt. If the payments are not designated in
an order and the parties have waived any right to receive alimony,
the court may designate the payments upon motion by any party. Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party or affect
the rights and liabilities of either party or a third party under
the terms of such contract;
(6) As an incident to requiring the payment of alimony, the
court may grant the exclusive use and possession of one or more
motor vehicles to either of the parties. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision for
the benefit of the other party shall be deemed to be alimony or
installment payments for the distribution of marital property, as
the court may direct. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and a
third party or affect the rights and liabilities of either party
or a third party under the terms of such contract;
(7) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein;
(8) Unless a contrary disposition is ordered pursuant to other provisions of this section, then upon the motion of either
party, the court may compel the other party to deliver to the
moving party any of his or her separate estate which may be in the
possession or control of the respondent party and may make such
further order as is necessary to prevent either party from
interfering with the separate estate of the other;
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other or interfering with the custodial or
visitation rights of the other. Such order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by
telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place;
(10) The court may order either party to take necessary steps
to transfer utility accounts and other accounts for recurring
expenses from the name of one party into the name of the other
party or from the joint names of the parties into the name of one
party. Nothing contained in this subdivision shall affect the
liability of the parties for indebtedness on any such account
incurred before the transfer of such account.
(c) When an annulment or divorce is denied, the court shall
retain jurisdiction of the case and may order all or any portion
of the relief provided for in subsections (a) and (b) of this
section which has been demanded or prayed for in the pleadings.
(d) When a divorce or annulment is granted in this state upon
constructive service of process and personal jurisdiction is
thereafter obtained of the defendant in such case, the court may
order all or any portion of the relief provided for in subsections
(a) and (b) of this section which has been demanded or prayed for
in the pleadings.
(e) After the entry of an order pursuant to the provisions
of this section, the court may revise the order concerning the
maintenance of the parties and enter a new order concerning the
same, as the circumstances of the parties may require.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise such
order to grant relief pursuant to subdivision (9), subsection (b)
of this section, and enter a new order concerning the same, as the
circumstances of the parties and the benefit of children may
require. The court may also from time to time afterward, upon the
motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter the order concerning the custody and support of the children, and make a new order concerning the same,
issuing it forthwith, as the circumstances of the parents or other
proper person or persons and the benefit of the children may
require:
Provided, That all orders modifying child support shall
be in conformance with the requirements of support guidelines
promulgated pursuant to article one-b, chapter forty-eight-a of
this code:
Provided, however, That an order providing for child
support payments may be revised or altered for the reason, inter
alia, that the existing order provides for child support payments
in an amount that is less than eighty-five percent or more than
one hundred fifteen percent of the amount that would be required
to be paid under the child support guidelines promulgated pursuant
to the provisions of said section.
In granting relief under this subsection, the court may, when
other means are not conveniently available, alter any prior order
of the court with respect to the distribution of marital property,
if such property is still held by the parties, and if necessary to
give effect to a modification of alimony, child support or child
custody or necessary to avoid an inequitable or unjust result
which would be caused by the manner in which the modification will
affect the prior distribution of marital property.
(f) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the agreement to ascertain whether it clearly provides for alimony to
continue beyond the death of the payor party or to cease in such
event. When alimony is to be paid pursuant to the terms of a
separation agreement which does not state whether the payment of
alimony is to continue beyond the death of the payor party or is
to cease, or when the parties have not entered into a separation
agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the death of the payor party or
cease.
(g) When a separation agreement is the basis for an award of
alimony, the court, in approving the agreement, shall examine the
agreement to ascertain whether it clearly provides for alimony to
continue beyond the remarriage of the payee party or to cease in
such event. When alimony is to be paid pursuant to the terms of
a separation agreement which does not state whether the payment of
alimony is to continue beyond the remarriage of the payee party or
is to cease, or when the parties have not entered into a
separation agreement and alimony is to be awarded, the court shall
specifically state as a part of its order whether such payments of
alimony are to be continued beyond the remarriage of the payee
party or cease.
(h) In addition to the disclosure requirements set forth in section thirty-three of this article, the court may order accounts
to be taken as to all or any part of marital property or the
separate estates of the parties and may direct that the accounts
be taken as of the date of the marriage, the date upon which the
parties separated or any other time in assisting the court in the
determination and equitable division of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under the
provisions of this section, the court shall consider and compare
the fault or misconduct of either or both of the parties and the
effect of such fault or misconduct as a contributing factor to the
deterioration of the marital relationship. However, alimony shall
not be awarded when both parties prove grounds for divorce and are
denied a divorce, nor shall an award of alimony under the
provisions of this section be ordered which directs the payment of
alimony to a party determined to be at fault, when, as a grounds
granting the divorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof to
be paid out of "disposable retired or retainer pay" as that term
is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount, expressed
in dollars or as a percentage of disposable retired or retainer
pay, from the disposable retired or retainer pay of the payor
party to the payee party.
(k) Any order which provides for the custody or support of a
minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support; and
(9) When child support guidelines are not followed, a specific written finding pursuant to section eight, article two,
chapter forty-eight-a of this code.
(l) (1) Unless the best interests of the child require
otherwise, every final order and every modification order which
provides for the custody of a minor child of the parties shall
also provide for the following:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled to
release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be properly
released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial parent a copy of the
child's grades or report card and copies of any other reports
reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable,
to arrange appointments for parent-teacher conferences at a time
when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly inform
the noncustodial parent of any illness of the child which requires
medical attention; or, if the child is in the actual physical
custody of the noncustodial parent during a period of visitation,
the noncustodial parent shall be required to promptly inform the
custodial parent of any illness of the child which requires
medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical
procedures are undertaken for the child which require the parental
consent of either parent, if time permits, the other parent shall
be consulted, or if time does not permit such consultation, the
other parent shall be promptly informed of such emergency medical
procedures:
Provided, That the same duty to inform the custodial
parent applies to the noncustodial parent in the event that the
emergency medical procedures are required while the child is in
the physical custody of the noncustodial parent during a period of
visitation:
Provided, however, That nothing contained herein
shall be deemed to alter or amend the law of this state as it
otherwise pertains to physicians or health care facilities
obtaining parental consent prior to providing medical care or
performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided for
by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records
and direct it to the appropriate school authorities or medical
providers.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent who
is required by agreement or order to pay for insurance coverage
and medical care, or some portion thereof, for his or her child.
(3) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, psychological, psychiatric or
other health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical, psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare
arrangement, hospital or medical services corporation, trust,
group health plan, as defined in 29 U.S.C. §1167, Section 607(1)
of the Employee Retirement Income Security Act of 1974 or other
entity which provides insurance coverage or offers a service
benefit plan.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the
children of the parties. In any temporary or final order
establishing an award of child support or any temporary or final
order modifying a prior order establishing an award of child
support, the court shall order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance coverage
is available to that parent on a group basis through an employer
or through an employee's union. If similar insurance coverage is
available to both parents, the court shall order the child to be
insured under the insurance coverage which provides more
comprehensive benefits. If such insurance coverage is not available at the time of the entry of the order, the order shall
require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multi-employer trust or employees' union, or that the group
insurer is not accessible to the parties, the court may order
either parent or both parents to obtain insurance coverage which
is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable for
reasonable and necessary medical care for a child. The court
shall specify the proportion of the medical care for which each
party shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate the
proportion of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to
provide the child support enforcement division created by article
two, chapter forty-eight-a of this code with information as to his
or her employer's name and address and information as to the availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be
eligible to receive support.
(c) The cost of insurance coverage shall be considered by the
court in applying the child support guidelines provided for in
article one-b, chapter forty-eight-a of this code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as prior
approval for hospital admission, and the manner in which to obtain
such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or the
obligated parent's employer the children's address and notice that the custodian will be submitting claims on behalf of the children.
Upon receipt of such notice, or an order for insurance coverage
under this section, the obligated parent's employer,
multi-employer trust or union shall, upon the request of the
custodian for the child, release information on the coverage for
the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall
not be provided to the obligated parent's employer or union or the
insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by mail
at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the
mailing of the notice to provide written proof to the custodian
for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance
coverage for the children, the employer, multi-employer trust or
union shall enroll the child as a beneficiary in the group
insurance plan and withhold any required premium from the obligated parent's income or wages.
(2) If more than one plan is offered by the employer, multi-
employer trust or union, the child shall be enrolled in the same
plan as the obligated parent at a reasonable cost.
(3) Insurance coverage for the child which is ordered
pursuant to the provisions of this section shall not be terminated
except as provided in subsection (j) of this section.
(h) Where a parent is required by a court or administrative
order to provide health coverage, which is available through an
employer doing business in this state, the employer is required:
(1) To permit the parent to enroll under family coverage any
child who is otherwise eligible for coverage without regard to any
enrollment season restrictions;
(2) If the parent is enrolled but fails to make application
to obtain coverage of the child, to enroll the child under family
coverage upon application by the child's other parent, by the
state agency administering the medicaid program or by the child
support enforcement division;
(3) Not to disenroll or eliminate coverage of any such child
unless the employer is provided satisfactory written evidence
that:
(A) The court or administrative order is no longer in effect;
(B) The child is or will be enrolled in comparable coverage which will take effect no later than the effective date of
disenrollment; or
(C) The employer has eliminated family health coverage for
all of its employees;
(4) To withhold from the employee's compensation the
employee's share, if any, of premiums for health coverage and to
pay this amount to the insurer:
Provided, That the amount so
withheld may not exceed the maximum amount permitted to be
withheld under 15 U.S.C. §1673, Section 303(b) of the Consumer
Credit Protection Act.
(i) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes
of processing an insurance payment to the provider of medical care
for the child.
(2) No insurer, employer or multi-employer trust in this
state may refuse to honor a claim for a covered service when the
custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child
or the obligated parent who submits copies of medical bills for
the child with proof of payment.
(4) All insurers in this state shall comply with the
provisions of section sixteen, article fifteen, chapter thirty-three of this code and section eleven, article sixteen of said
chapter and shall provide insurance coverage for the child of a
covered employee notwithstanding the amount of support otherwise
ordered by the court and regardless of the fact that the child may
not be living in the home of the covered employee.
(j) When an order for insurance coverage for a child pursuant
to this section is in effect and the obligated parent's employment
is terminated, or the insurance coverage for the child is denied,
modified or terminated, the insurer shall in addition to complying
with the requirements of article sixteen-a, chapter thirty-three
of this code, within ten days after the notice of change in
coverage is sent to the covered employee, notify the custodian for
the child and provide an explanation of any conversion privileges
available from the insurer.
(k) A child of an obligated parent shall remain eligible for
insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time,
or until further order of the court.
(l) If the obligated parent fails to comply with the order to
provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage or for failing or refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child and any
insurance premiums paid or provided for the child during any
period in which the obligated parent failed to provide the
required coverage;
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child;
(4) In addition to other remedies available under law, the
child support enforcement division may garnish the wages, salary
or other employment income of, and withhold amounts from state tax
refunds to any person who:
(A) Is required by court or administrative order to provide
coverage of the cost of health services to a child eligible for
medical assistance under medicaid; and
(B) Has received payment from a third party for the costs of
such services but has not used the payments to reimburse either
the other parent or guardian of the child or the provider of the
services, to the extent necessary to reimburse the state medicaid agency for its costs:
Provided, That claims for current and past
due child support shall take priority over these claims.
(m) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial change
in circumstances or increased need pursuant to section fifteen of
this article, and provides a basis for modification of the child
support order.
§48-2-32. Marital property disposition.
(a) Except as otherwise provided in this section, upon every
judgment of annulment, divorce or separation, the court shall
divide the marital property of the parties equally between the
parties.
(b) In cases where the parties to an action commenced under
the provisions of this article have executed a separation
agreement, then the court shall divide the marital property in
accordance with the terms of the agreement, unless the court
finds:
(1) That the agreement was obtained by fraud, duress or other
unconscionable conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not
expressed themselves in terms which, if incorporated into a
judicial order, would be enforceable by a court in future
proceedings; or
(3) That the agreement, viewed in the context of the actual
contributions of the respective parties to the net value of the
marital property of the parties, is so inequitable as to defeat
the purposes of this section, and such agreement was inequitable
at the time the same was executed.
(c) In the absence of a valid agreement, the court shall
presume that all marital property is to be divided equally between
the parties, but may alter this distribution, without regard to
any attribution of fault to either party which may be alleged or
proved in the course of the action, after a consideration of the
following:
(1) The extent to which each party has contributed to the
acquisition, preservation and maintenance, or increase in value of
marital property by monetary contributions, including, but not
limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to the
acquisition, preservation and maintenance or increase in value of
marital property by nonmonetary contributions, including, but not
limited to:
(A) Homemaker services;
(B) Child care services;
(C) Labor performed without compensation, or for less than
adequate compensation, in a family business or other business
entity in which one or both of the parties has an interest;
(D) Labor performed in the actual maintenance or improvement
of tangible marital property; and
(E) Labor performed in the management or investment of assets
which are marital property.
(3) The extent to which each party expended his or her
efforts during the marriage in a manner which limited or decreased
such party's income-earning ability or increased the income-
earning ability of the other party, including, but not limited to:
(A) Direct or indirect contributions by either party to the
education or training of the other party which has increased the
income-earning ability of such other party; and
(B) Foregoing by either party of employment or other income-
earning activity through an understanding of the parties or at the
insistence of the other party.
(4) The extent to which each party, during the marriage, may
have conducted himself or herself so as to dissipate or depreciate
the value of the marital property of the parties:
Provided, That
except for a consideration of the economic consequences of conduct
as provided for in this subdivision, fault or marital misconduct
shall not be considered by the court in determining the proper distribution of marital property.
(d) After considering the factors set forth in subsection (c)
of this section, the court shall:
(1) Determine the net value of all marital property of the
parties as of the date of the commencement of the action or as of
such later date determined by the court to be more appropriate for
attaining an equitable result:
Provided, That for contractual
rights to contingent and other future earned fees that are
considered to be marital property, the valuation date is the date
the parties separated. Contractual agreements for contingent or
other future earned fees entered into during the marriage and
before the parties separated is marital property. The court shall
not delay a division of marital property by retaining continuing
jurisdiction over the matter until the amount of the contingent or
other future earned fee has been ultimately decided, but shall
make a valuation of the contractual agreement contemporaneously
with the valuation of other marital property;
(2) Designate the property which constitutes marital
property, and define the interest therein to which each party is
entitled and the value of their respective interest therein. In
the case of an action wherein there is no agreement between the
parties and the relief demanded requires the court to consider
such factors as are described in subdivisions (1), (2), (3) and (4), subsection (c) of this section, if a consideration of factors
only under said subdivisions (1) and (2) would result in an
unequal division of marital property, and if an examination of the
factors described in said subdivisions (3) and (4) produce a
finding that a party: (A) Expended his or her efforts during the
marriage in a manner which limited or decreased such party's
income-earning ability or increased the income-earning ability of
the other party; or (B) conducted himself or herself so as to
dissipate or depreciate the value of the marital property of the
parties, then the court may, in the absence of a fair and just
alimony award under the provisions of section fifteen of this
article which adequately takes into account the facts which
underlie the factors described in subdivisions (3) and (4),
subsection (c) of this section, equitably adjust the definition of
the parties' interest in marital property, increasing the interest
in marital property of a party adversely affected by the factors
considered under said subdivisions who would otherwise be awarded
less than one half of the marital property, to an interest not to
exceed one half of the marital property;
(3) Designate the property which constitutes separate
property of the respective parties or the separate property of
their children;
(4) Determine the extent to which marital property is susceptible to division in accordance with the findings of the
court as to the respective interests of the parties therein;
(5) In the case of any property which is not susceptible to
division, ascertain the projected results of a sale of such
property;
(6) Ascertain the projected effect of a division or transfer
of ownership of income-producing property, in terms of the
possible pecuniary loss to the parties or other persons which may
result from an impairment of the property's capacity to generate
earnings; and
(7) Transfer title to such component parts of the marital
property as may be necessary to achieve an equitable distribution
of the marital property. To make such equitable distribution, the
court may:
(A) Direct either party to transfer their interest in
specific property to the other party;
(B) Permit either party to purchase from the other party
their interest in specific property;
(C) Direct either party to pay a sum of money to the other
party in lieu of transferring specific property or an interest
therein, if necessary to adjust the equities and rights of the
parties, which sum may be paid in installments or otherwise, as
the court may direct;
(D) Direct a party to transfer his or her property to the
other party in substitution for property of the other party of
equal value which the transferor is permitted to retain and assume
ownership of; or
(E) Order a sale of specific property and an appropriate
division of the net proceeds of such sale:
Provided, That such
sale may be by private sale, or through an agent or by judicial
sale, whichever would facilitate a sale within a reasonable time
at a fair price.
(e) In order to achieve the equitable distribution of marital
property, the court shall, unless the parties otherwise agree,
order, when necessary, the transfer of legal title to any property
of the parties, giving preference to effecting equitable
distribution through periodic or lump sum payments:
Provided,
That the court may order the transfer of legal title to motor
vehicles, household goods and the former marital domicile without
regard to such preference where the court determines it to be
necessary or convenient. In any case involving the equitable
distribution of: (1) Property acquired by bequest, devise,
descent, distribution or gift; or (2) ownership interests in a
business entity, the court shall, unless the parties otherwise
agree, give preference to the retention of the ownership interests
in such property. In the case of such business interests, the court shall give preference to the party having the closer
involvement, larger ownership interest or greater dependency upon
the business entity for income or other resources required to meet
responsibilities imposed under this article, and shall also
consider the effects of transfer or retention in terms of which
alternative will best serve to preserve the value of the business
entity or protect the business entity from undue hardship or from
interference caused by one of the parties or by the divorce,
annulment or decree of separate maintenance:
Provided, however,
That the court may, unless the parties otherwise agree, sever the
business relationship of the parties and order the transfer of
legal title to ownership interests in the business entity from one
party to the other, without regard to the limitations on the
transfer of title to such property otherwise provided in this
subsection, if such transfer is required to achieve the other
purposes of this article:
Provided further, That in all such
cases the court shall order or the agreement of the parties shall
provide for equitable payment or transfer of legal title to other
property, of fair value in money or moneys' worth, in lieu of any
ownership interests in a business entity which are ordered to be
transferred under this subsection:
And provided further, That the
court may order the transfer of such business interests to a third
party (such as the business entity itself or another principal in the business entity) where the interests of the parties under this
article can be protected and at least one party consents thereto.
(f) In any order which divides or transfers the title to any
property, determines the ownership or value of any property,
designates the specific property to which any party is entitled or
grants any monetary award, the court shall set out in detail its
findings of fact and conclusions of law, and the reasons for
dividing the property in the manner adopted.
(g) If an order entered in accordance with the provisions of
this article requires the transfer of title to property and a
party fails or refuses to execute a deed or other instrument
necessary to convey title to such property, the deed or other
instrument shall be executed by a special commissioner appointed
by the court for the purpose of effecting such transfer of title
pursuant to section seven, article twelve, chapter fifty-five of
this code.
(h) As to any third party, the doctrine of equitable
distribution of marital property and the provisions of this
article shall be construed as creating no interest or title in
property until and unless an order is entered under this article
judicially defining such interest or approving a separation
agreement which defines such interest. Neither this article nor
the doctrine of equitable distribution of marital property shall be construed to create community property nor any other interest
or estate in property except those previously recognized in this
state. A husband or wife may alienate property at any time prior
to the entry of an order under the provisions of this article or
prior to the recordation of a notice of lis pendens in accordance
with the provisions of section thirty-five of this article, and at
anytime and in any manner not otherwise prohibited by an order
under this article, in like manner and with like effect as if this
article and the doctrine of equitable distribution had not been
adopted:
Provided, That as to any transfer prior to the entry of
an order under the provisions of this article, a transfer other
than to a bona fide purchaser for value shall be voidable if the
court finds such transfer to have been effected to avoid the
application of the provisions of this article or to otherwise be
a fraudulent conveyance. Upon the entry of any order under this
article or the admission to record of any notice with respect to
an action under this article, restraining the alienation of
property of a party, a bona fide purchaser for value shall take
such title or interest as he or she might have taken prior to the
effective date of this section and no purchaser for value need see
to the application of the proceeds of such purchase except to the
extent he or she would have been required so to do prior to the
effective date of this section:
Provided, however, That as to third parties nothing in this section shall be construed to limit
or otherwise defeat the interests or rights to property which any
husband or wife would have had in property prior to the enactment
of this section or prior to the adoption of the doctrine of
equitable distribution by the supreme court of appeals on the
twenty-fifth day of May, one thousand nine hundred eighty-three:
Provided further, That no order entered under this article shall
be construed to defeat the title of a third party transferee
thereof except to the extent that the power to effect such a
transfer of title or interest in such property is secured by a
valid and duly perfected lien and, as to any personal property,
secured by a duly perfected security interest.
(i) Notwithstanding the provisions of chapter eleven of this
code, no transfer of interest in or title to property under this
section shall be taxable as a transfer of property without
consideration nor, except as to alimony, create liability for
sales, use, inheritance and transfer or income taxes due the state
or any political subdivision nor require the payment of the excise
tax imposed under article twenty-two, chapter eleven of this code.
(j) Whenever under the terms of this article a court enters
an order requiring a division of property, if the court
anticipates the division of property will be effected by requiring
sums to be paid out of "disposable retired or retainer pay" as that term is defined in 10 U.S.C. §1408, relating to members or
former members of the uniformed services of the United States, the
court shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
(k) The amendments to this section effected by the
reenactment of this section during the regular session of the
Legislature, one thousand nine hundred ninety-six, are to be
applied prospectively and shall have no application to any action
for annulment, divorce or separate maintenance that was commenced
on or before the effective date of this section.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§48A-1-3. Calculation of interest.
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.
ARTICLE 1A. DEFINITIONS.
§48A-1A-1. Application of definitions.
For purposes of this chapter and chapter forty-eight of this
code, unless the context clearly requires otherwise, the words and
phrases defined in the following sections of this article, and any
variations of those words and phrases required by the context,
shall have the meanings ascribed to them in this article.
§48A-1A-2. Adjusted gross income.
(a) "Adjusted gross income" means gross income less the
payment of previously ordered child support, spousal support or
separate maintenance.
(b) A further deduction from gross income for additional
dependents may be allowed by the court or master if the support
obligor has legal dependents other than those for whom support is
being determined. An adjustment may be used in the establishment
of a child support order or in a review of a child support order.
However, in cases where a modification is sought, the adjustment
should not be used to the extent that it results in a support amount lower than the previously existing order for the children
who are the subject of the modification. The court or master may
elect to use the following adjustment because it allots equitable
shares of support to all of the support obligor's legal
dependents. Using the income of the support obligor only,
determine the basic child support obligation (from the Table of
Basic Child Support Obligations in section three, article one-b of
this chapter) for the number of additional legal dependents living
with the support obligor. Multiply this figure by 0.75 and
subtract this amount from the support obligor's gross income.
§48A-1A-3. Attributed income.
(a) "Attributed income" means income not actually earned by
an obligor, but which may be attributed to the obligor because he
or she is unemployed, is not working full time, or is working
below full earning capacity. Income may be attributed to an
obligor if the court or master evaluates the obligor's earning
capacity in the local economy (giving consideration to relevant
evidence that pertains to the obligor's work history,
qualifications, education and physical or mental condition) and
determines that the obligor is unemployed, is not working full
time, or is working below full earning capacity.
(b) If an obligor: (1) Voluntarily leaves employment or
voluntarily alters his or her pattern of employment so as to be
unemployed, underemployed or employed below full earning capacity; (2) is able to work and is available for full-time work for which
he or she is fitted by prior training or experience; and (3) is
not seeking employment in the manner that a reasonably prudent
person in his or her circumstances would do, then an alternative
method for the court or master to determine gross income is
to
attribute to the person an earning capacity based on his or her
previous income. If the obligor's work history, qualifications,
education or physical or mental condition cannot be determined, or
if there is an inadequate record of the obligor's previous income,
the court or master may, as a minimum, base attributed income on
full-time employment (at forty hours per week) at the federal
minimum wage in effect at the time the support obligation is
established.
(c) Income shall not be attributed to an obligor who is
unemployed or underemployed or is otherwise working below full
earning capacity if any of the following conditions exist:
(1) The parent is providing care required by the children to
whom the parties owe a joint legal responsibility for support, and
such children are of preschool age or are handicapped or otherwise
in a situation requiring particular care by the parent;
(2) The parent is pursuing a plan of economic self-
improvement which will result, within a reasonable time, in an
economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education:
Provided, That if the parent is involved in an educational
program, the court or master shall ascertain that the person is
making substantial progress toward completion of the program;
(3) The parent is, for valid medical reasons, earning an
income in an amount less that previously earned; or
(4) The court or master makes a written finding that other
circumstances exist which would make the attribution of income
inequitable:
Provided, That in such case, the court or master may
decrease the amount of attributed income to an extent required to
remove such inequity.
§48A-1A-4. Automatic data processing and retrieval system.
(a) "Automatic data processing and retrieval system" means a
computerized data processing system designed to do the following:
(1) To control, account for and monitor all of the factors in
the support enforcement collection and paternity determination
process, including, but not limited to:
(A) Identifiable correlation factors (such as social security
numbers, names, dates of birth, home addresses and mailing
addresses of any individual with respect to whom support
obligations are sought to be established or enforced and with
respect to any person to whom such support obligations are owing)
to assure sufficient compatibility among the systems of different jurisdictions to permit periodic screening to determine whether
such individual is paying or is obligated to pay support in more
than one jurisdiction;
(B) Checking of records of such individuals on a periodic
basis with federal, interstate, intrastate and local agencies;
(C) Maintaining the data necessary to meet applicable federal
reporting requirements on a timely basis; and
(D) Delinquency and enforcement activities;
(2) To control, account for and monitor the collection and
distribution of support payments (both interstate and intrastate)
the determination, collection and distribution of incentive
payments (both interstate and intrastate), and the maintenance of
accounts receivable on all amounts owed, collected and
distributed;
(3) To control, account for and monitor the costs of all
services rendered, either directly or by exchanging information
with state agencies responsible for maintaining financial
management and expenditure information;
(4) To provide access to the records of the department of
health and human resources or aid to families with dependent
children in order to determine if a collection of a support
payment causes a change affecting eligibility for or the amount of
aid under such program;
(5) To provide for security against unauthorized access to,
or use of, the data in such system;
(6) To facilitate the development and improvement of the
income withholding and other procedures designed to improve the
effectiveness of support enforcement through the monitoring of
support payments, the maintenance of accurate records regarding
the payment of support and the prompt provision of notice to
appropriate officials with respect to any arrearage in support
payments which may occur; and
(7) To provide management information on all cases from
initial referral or application through collection and
enforcement.
§48A-1A-5. Basic child support obligation.
"Basic child support obligation" means the base amount of
child support due by both parents as determined by the table of
basic child support obligations set forth in section three,
article one-b of this chapter, based upon the combined adjusted
gross income of the parents and the number of children to whom
support is due.
§48A-1A-6. Chief judge.
"Chief judge" means the circuit judge in a judicial circuit
that has only one circuit judge, or the chief judge of the circuit
court in a judicial circuit that has two or more circuit judges.
§48A-1A-7. Child support enforcement division.
"Child support enforcement division" means the agency created
under the provisions of article two of this chapter, or any public
or private entity or agency contracting to provide a service. The
"child advocate office" or" child support enforcement division" is
that agency intended by the Legislature to be the single and
separate organizational unit of state government administering
programs of child and spousal support enforcement and meeting the
staffing and organizational requirements of the secretary of the
federal department of health and human services. A reference in
this chapter and elsewhere in this code to the "child advocate
office" shall be interpreted to refer to the child support
enforcement division.
§48A-1A-8. Children's advocate.
"Children's advocate" or "advocate" means any public or
private agency, entity or person providing child support
enforcement services required by this chapter. The term includes
those persons or agencies or entities providing services under the
direction of or pursuant to a contract with the child support
enforcement division as provided for in article two of this
chapter and in any such contract.
§48A-1A-9. Combined adjusted gross income.
"Combined adjusted gross income" means the combined monthly
adjusted gross incomes of both parents.
§48A-1A-10. Contingent fee agreement.
(a) "Contingent fee agreement" means a contract under which
an attorney may be compensated for work in progress, dependent on
the occurrence of some future event which is not certain and
absolute. As such, a contingent fee agreement is not an asset,
but is potential income or income capacity. This potential income
may have current value, and a portion of that current value, if
any, may be considered to be a marital asset. In the event a
party seeks to quantify the current value of a particular
contingent fee agreement for the purpose of establishing the value
of the agreement as marital property, the court must find that the
party has proved such value by a preponderance of the evidence.
Factors to be considered by the court include, but are not limited
to, the following:
(1) The nature of the particular case or claim which
underlies the agreement;
(2) The jurisdiction or venue of any projected trial or
proceeding;
(3) Any historical data relevant to verdicts or settlements
within the jurisdiction where the case or claim is pending or may
be brought;
(4) The terms and particulars of the agreement;
(5) The status of the case or claim at valuation date;
(6) The amount of time spent working on the case or claim prior to the valuation date, and an analysis of the nature of how
that time was spent, including, but not limited to, such
activities such as investigation, research, discovery, trial or
appellate practice;
(7) The extent of the person's active role in the work in
process, whether as an actual participant or as an indirect
participant such as a partner, local counsel or other ancillary
role;
(8) The age of the case or claim;
(9) The expenses accrued or projected to bring the case or
claim to resolution, including any office overhead attributable to
case or claim; and
(10) The probable tax consequences attendant to a successful
resolution of the case or claim.
(b) The provisions of this section as enacted during the
regular session of the Legislature, one thousand nine hundred
ninety-six, are to be applied prospectively and shall have no
application to any action for annulment, divorce or separate
maintenance that was commenced on or before the effective date of
this section.
§48A-1A-11. Court.
"Court" means a circuit court of this state, unless the
context in which such term is used clearly indicates that
reference to some other court is intended.
§48A-1A-12. Court of competent jurisdiction.
"Court of competent jurisdiction" means a circuit court
within this state or a court or administrative agency of another
state having jurisdiction and due legal authority to deal with the
subject matter of the establishment and enforcement of support
obligations. Whenever in this chapter reference is made to an
order of a court of competent jurisdiction, or similar wording,
such language shall be interpreted so as to include orders of an
administrative agency entered in a state where enforceable orders
may by law be properly made and entered by such administrative
agency.
§48A-1A-13. Custodial parent.
"Custodial parent" or "custodial parent of a child" means a
parent who has been granted custody of a child by a court of
competent jurisdiction. "Noncustodial parent" means a parent of
a child with respect to whom custody has been adjudicated with the
result that such parent has not been granted custody of the child.
§48A-1A-14. Director.
"Director" means any person appointed pursuant to section
thirteen, article two of this chapter, who directs all child
support establishment and enforcement services for the child
support enforcement division.
§48A-1A-15. Domestic relations matter.
"Domestic relations matter" means any circuit court proceeding involving child custody, child visitation, child
support or alimony.
§48A-1A-16. Employer.
"Employer" means any individual, sole proprietorship,
partnership, association, public or private corporation, the
United States or any federal agency, this state or any political
subdivision of this state, any other state or a political
subdivision of another state and any other legal entity which
hires and pays an individual for his services.
§48A-1A-17. Extraordinary medical expenses.
"Extraordinary medical expenses" means reasonable uninsured
medical expenses in excess of two hundred fifty dollars per year
per child which are recurring and can reasonably be predicted by
the court or master at the time of establishment or modification
of a child support order. Nonrecurring or subsequently occurring
uninsured medical expenses in excess of two hundred fifty dollars
per year per child shall be separately divided between the parties
in proportion to their adjusted gross incomes. Such expenses
shall include, but not be limited to, insurance copayments and
deductibles, reasonable costs for necessary orthodontia, dental
treatment, asthma treatments, physical therapy, and any uninsured
chronic health problem.
§48A-1A-18. Family law master.
"Family law master" or "master" means a person appointed to such position under the provisions of section one, article four of
this chapter.
§48A-1A-19. Gross income.
(a) "Gross income" means all earned and unearned income.
When determining whether an income source should be included in
the child support calculation, the court or master should 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 due or to be
due in the future to an obligor from his employer and successor
employers;
(2) Any payment due or to be due in the future to an obligor
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 paid on any debt owing to the obligor as a debt
from an individual, partnership, association, public or private
corporation, the United States or any federal agency, this state
or any political subdivision of this state, any other state or a political subdivision of another state or any other legal entity;
(4) Expense reimbursements or 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 obligor with property or services he or she would
otherwise have to provide;
(5) Attributed income of the parent, calculated in
accordance with the provisions of section three, article one-a of
this chapter;
(6) Compensation paid for personal services as overtime pay:
Provided, That overtime compensation may be excluded from gross
income if the obligor 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 divorce or 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;
(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 obligor 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, 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-20. Guardian of the property of a child.
"Guardian of the property of a child" means a person lawfully
invested with the power, and charged with the duty, of managing
and controlling the estate of a child.
§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.
"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.
§48A-1A-22. Obligee.
"Obligee" means:
(1) An individual to whom a duty of support is or is alleged
to be owed or in whose favor a support order has been issued or a
judgment determining parentage has been rendered;
(2) A state or political subdivision to which the rights
under a duty of support or support order have been assigned or
which has independent claims based on financial assistance
provided to an individual obligee; or
(3) An individual seeking a judgment determining parentage of
the individual's child.
§48A-1A-23. Obligor.
"Obligor" means an individual or the estate of a decedent:
(1) Who owes or is alleged to owe a duty of support;
(2) Who is alleged, but has not been adjudicated, to be a
parent of a child; or
(3) Who is liable under a support order.
§48A-1A-24. Primary caretaker of a child.
"Primary caretaker of a child" means a parent or other person
having actual physical custody of a child without a court order granting such custody and who has been primarily responsible for
exercising parental rights and responsibilities with regard to
such child.
§48A-1A-25. Secretary.
"Secretary" means the secretary of the department of health
and human resources.
§48A-1A-26. Shared physical custody.
"Shared physical custody" means an arrangement under which
each parent keeps a child or children overnight for more than
thirty percent of the year and under which both parents contribute
to the expenses of the child or children in addition to the
payment of child support.
§48A-1A-27. Source of income.
"Source of income" means an employer or successor employer or
any other person who owes or will owe income to an obligor.
§48A-1A-28. Split physical custody.
"Split physical custody" means a situation where there is
more than one child and where each parent has physical custody of
at least one child.
§48A-1A-29. Support.
"Support" means the payment of money including interest:
(A) For a child or spouse, ordered by a court of competent
jurisdiction, whether the payment is ordered in an emergency,
temporary, permanent or modified order, decree or judgment of such court, and the amount of unpaid support shall bear simple interest
from the date it accrued, at a rate of ten dollars upon one
hundred dollars per annum, and proportionately for a greater or
lesser sum, or for a longer or shorter time;
(B) To third parties on behalf of a child or spouse,
including, but not limited to, payments to medical, dental or
educational providers, payments to insurers for health and
hospitalization insurance, payments of residential rent or
mortgage payments, payments on an automobile or payments for day
care; and/or
(C) For a mother, ordered by a court of competent
jurisdiction, for the necessary expenses incurred by or for the
mother in connection with her confinement or of other expenses in
connection with the pregnancy of the mother.
§48A-1A-30. Support order.
"Support order" means any order of a court of competent
jurisdiction for the payment of support, whether or not for a sum
certain.
§48A-1A-31. Unreimbursed health care expenses.
"Unreimbursed medical expenses" means the child's portion of
health insurance premiums and extraordinary medical expenses.
§48A-1A-32. Work-related child care costs.
"Work-related child care costs" shall mean the cost of child
care the parent incurs due to employment or the search for employment.
ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-1. General provisions.
(a) This section 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 shall be a rebuttable presumption, in any proceeding before
a family law master or circuit court judge 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.
(b) 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, the
guidelines are structured so as to provide that after a
consideration of respective parental incomes, that child support
will be related, to the extent practicable, to the level of living that children would enjoy if they were living in a household with
both parents present.
(c) The guidelines promulgated under the provisions of this
section 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.
The guidelines consider the financial contributions of both
parents in relationship to total income, so as to establish and
equitably apportion the child support obligation.
(d) The provisions of this article which would create a new
method of calculating child support obligations based on an income
shares model shall not become operative until the first day of
July, one thousand nine hundred ninety-seven. The child support
guidelines in effect on the first day of January, one thousand
nine hundred ninety-six, as promulgated by legislative rule, shall
continue in effect, notwithstanding the repeal of section
seventeen, article two of this chapter during the regular session
of the Legislature, one thousand nine hundred ninety-six. To the
extent that any definition set forth in article one-a of this
chapter is inconsistent with the manner of calculating a support
obligation under the legislative rule establishing child support
guidelines that is in effect on the first day of January, one thousand nine hundred ninety-six, such definition shall have no
application until the first day of July, one thousand nine hundred
ninety-seven.
§48A-1B-2. Calculation of child support order.
(a) Both parents' adjusted gross income, as defined in
section two, article one-a of this chapter, is used to determine
the amount of child support. Unreimbursed child health care
expenses and work-related child care expenses are added to the
basic child support obligation to determine the total child
support obligation. The child support order is determined by
dividing the total child support obligation between the parents in
proportion to their income.
(b) The calculation of the support order amount requires the
use of one of two worksheets which must be completed for each
case. Worksheet A is used for a sole physical custody
arrangement. Worksheet B is used for a shared physical custody
arrangement.
§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:
MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
Combined
Adjusted
Gross
MonthlyOneTwoThreeFourFiveSix
IncomeChildrenChildrenChildrenChildrenChildrenChildren
650505050505050
700717273747575
750101103104105106107
800135136138139141142
850168170172174176178
900184204206209211213
950193238240243246248
1,000201272275278281284
1,050210306309312316319
1,100218329343347351354
1,150227342377381385390
1,200235355411416420425
1,250243368436450455459
1,300252381451484489494
1,350261393465514524529
1,400270405479529558564
1,450279417493545590599
1,500289429507560607634
1,550298441521576624668
1,600307453535591641686
1,650316465549607658704
1,700325477563623675722
1,750334489578638692740
1,800344501592654709758
1,850353513606669726776
1,900361525620685742794
1,950370537634701759812
2,000378549648716776831
2,050386561662732793849
2,100395573676747810867
2,150403585690763827885
2,200411597704778844903
2,250420609718794860921
2,300428621732809877939
2,350436633746825894957
2,400445645760840911975
2,450453657774856927992
2,5004606687878699421,008
2,5504676777988829561,023
2,6004746878098949691,037
2,6504806968209069821,051
2,7004877068319189951,065
2,7504947158429301,0081,079
2,8005007258539421,0221,093
2,8505077348649551,0351,107
2,9005147448759671,0481,122
2,9505207538869791,0611,136
3,0005277638979911,0741,150
3,0505347729081,0031,0881,164
3,1005407829191,0161,1011,178
3,1505467909291,0261,1131,191
3,2005517979371,0361,1231,201
3,2505568049461,0451,1331,212
3,3005608119541,0541,1431,223
3,3505658189631,0641,1531,234
3,4005708259711,0731,1631,245
3,4505758329801,0831,1741,256
3,5005798399881,0921,1841,267
3,5505848469971,1011,1941,277
3,6005898531,0051,1111,2041,288
3,6505948601,0141,1201,2141,299
3,7005988671,0221,1291,2241,310
3,7506038741,0301,1381,2341,320
3,8006088811,0381,1481,2441,331
3,8506128871,0461,1561,2531,341
3,9006168931,0521,1631,2601,348
3,9506208981,0581,1691,2671,356
4,0006249041,0641,1761,2751,364
4,0506289091,0701,1831,2821,372
4,1006329151,0761,1901,2891,380
4,1506369201,0831,1961,2971,387
4,2006409261,0891,2031,3041,395
4,2506449311,0951,2101,3111,403
4,3006489371,1011,2171,3191,411
4,3506529421,1071,2231,3261,419
4,4006579481,1131,2301,3331,427
4,4506619531,1191,2371,3411,434
4,5006659591,1251,2441,3481,442
4,5506699641,1311,2501,3551,450
4,6006719691,1361,2551,3611,456
4,6506749721,1411,2601,3661,462
4,7006779761,1451,2651,3721,468
4,7506799801,1501,2701,3771,473
4,8006829841,1541,2751,3821,479
4,8506849871,1581,2801,3871,484
4,9006879911,1631,2851,3921,490
4,9506899951,1671,2891,3981,495
5,0006929981,1711,2941,4031,501
5,0506941,0021,1761,2991,4081,506
5,1006971,0061,1801,3041,4131,512
5,1507001,0101,1851,3091,4191,518
5,2007031,0141,1891,3141,4241,524
5,2507041,0151,1911,3171,4271,527
5,3007091,0231,2001,3261,4371,538
5,3507141,0301,2081,3351,4471,549
5,4007191,0371,2161,3441,4571,559
5,4507251,0451,2251,3531,4671,570
5,5007301,0521,2331,3631,4771,580
5,5507351,0591,2411,3721,4871,591
5,6007401,0661,2501,3811,4971,602
5,6507451,0741,2581,3901,5071,612
5,7007501,0811,2661,3991,5171,623
5,7507561,0881,2751,4091,5271,634
5,8007611,0961,2831,4181,5371,644
5,8507661,1031,2911,4271,5471,655
5,9007711,1101,2991,4361,5571,666
5,9507761,1171,3081,4451,5671,676
6,0007811,1241,3151,4541,5761,686
6,0507851,1301,3221,4611,5841,695
6,1007891,1351,3291,4691,5921,703
6,1507931,1411,3361,4761,6001,712
6,2007971,1471,3431,4841,6091,721
6,2508011,1531,3501,4911,6171,730
6,3008051,1581,3561,4991,6251,738
6,3508091,1641,3631,5071,6331,747
6,4008131,1701,3701,5141,6411,756
6,4508171,1761,3771,5221,6491,765
6,5008211,1821,3841,5291,6581,773
6,5508251,1871,3911,5371,6661,782
6,6008291,1931,3971,5441,6741,791
6,6508331,1991,4041,5521,6821,800
6,7008371,2051,4111,5591,6901,809
6,7508411,2111,4181,5671,6991,817
6,8008451,2161,4251,5751,7071,826
6,8508491,2221,4321,5821,7151,835
6,9008531,2281,4381,5901,7231,844
6,9508571,2341,4451,5971,7311,852
7,0008611,2401,4521,6051,7401,861
7,0508651,2461,4601,6131,7481,871
7,1008701,2531,4671,6211,7571,881
7,1508741,2591,4751,6301,7661,890
7,2008791,2661,4821,6381,7761,900
7,2508831,2721,4901,6461,7851,910
7,3008881,2791,4971,6551,7941,919
7,3508931,2851,5051,6631,8031,929
7,4008971,2921,5131,6711,8121,939
7,4509021,2981,5201,6801,8211,949
7,5009061,3051,5281,6881,8301,958
7,5509111,3111,5351,6971,8391,968
7,6009151,3181,5431,7051,8481,978
7,6509201,3241,5501,7131,8571,987
7,7009251,3311,5581,7221,8661,997
7,7509291,3371,5661,7301,8752,007
7,8009341,3441,5731,7381,8842,017
7,8509381,3501,5811,7471,8942,026
7,9009431,3571,5881,7551,9032,036
7,9509471,3631,5961,7631,9122,046
8,0009521,3701,6031,7721,9212,055
8,0509561,3761,6111,7801,9302,065
8,1009611,3831,6191,7891,9392,075
8,1509661,3891,6261,7971,9482,084
8,2009701,3961,6341,8051,9572,094
8,2509751,4021,6411,8141,9662,104
8,3009791,4091,6491,8221,9752,114
8,3509841,4151,6561,8301,9842,123
8,4009881,4221,6641,8391,9932,133
8,4509921,4281,6711,8462,0022,142
8,5009961,4331,6781,8542,0102,151
8,5501,0001,4391,6851,8622,0182,160
8,6001,0041,4451,6921,8692,0272,168
8,6501,0081,4511,6991,8772,0352,177
8,7001,0121,4571,7061,8852,0432,186
8,7501,0161,4631,7131,8932,0522,195
8,8001,0201,4691,7201,9002,0602,204
8,8501,0241,4751,7271,9082,0692,213
8,9001,0281,4801,7341,9162,0772,222
8,9501,0321,4861,7411,9232,0852,231
9,0001,0361,4921,7481,9312,0942,240
9,0501,0401,4981,7551,9392,1022,249
9,1001,0441,5041,7621,9462,1102,258
9,1501,0481,5101,7691,9542,1192,267
9,2001,0531,5161,7761,9622,1272,276
9,2501,0571,5221,7831,9702,1352,285
9,3001,0611,5281,7901,9772,1442,294
9,3501,0651,5331,7971,9852,1522,302
9,4001,0691,5391,8041,9932,1602,311
9,4501,0731,5451,8112,0002,1692,320
9,5001,0771,5511,8172,0082,1772,329
9,5501,0811,5571,8242,0162,1852,338
9,6001,0851,5631,8312,0232,1942,347
9,6501,0891,5691,8382,0312,2022,356
9,7001,0931,5751,8452,0392,2102,365
9,7501,0971,5811,8532,0472,2192,375
9,8001,1011,5861,8592,0542,2272,383
9,8501,1041,5911,8652,0612,2342,391
9,9001,1081,5961,8722,0682,2422,399
9,9501,1111,6011,8782,0752,2492,407
10,0001,1151,6071,8842,0822,2572,415
10,0501,1181,6121,8902,0892,2642,423
10,1001,1221,6171,8972,0962,2722,431
10,1501,1261,6221,9032,1032,2792,439
10,2001,1291,6271,9092,1102,2872,447
10,2501,1331,6321,9152,1162,2942,455
10,3001,1361,6381,9222,1232,3022,463
10,3501,1401,6431,9282,1302,3092,471
10,4001,1431,6481,9342,1372,3162,478
10,4501,1461,6521,9392,1432,3232,486
10,5001,1491,6571,9452,1492,3302,493
10,5501,1531,6621,9512,1562,3372,500
10,6001,1561,6671,9572,1622,3442,508
10,6501,1591,6721,9622,1682,3512,515
10,7001,1621,6761,9682,1752,3572,522
10,7501,1661,6811,9742,1812,3642,530
10,8001,1691,6861,9802,1882,3712,537
10,8501,1721,6911,9852,1942,3782,545
10,9001,1751,6951,9912,2002,3852,552
10,9501,1781,7001,9972,2072,3922,559
11,0001,1821,7052,0032,2132,3992,567
11,0501,1851,7102,0082,2192,4062,574
11,1001,1881,7142,0142,2262,4122,581
11,1501,1911,7192,0202,2322,4192,589
11,2001,1951,7242,0262,2382,4262,596
11,2501,1981,7292,0322,2452,4342,604
11,3001,2021,7362,0392,2542,4432,614
11,3501,2061,7422,0472,2622,4522,624
11,4001,2101,7482,0552,2702,4612,633
11,4501,2141,7542,0622,2792,4702,643
11,5001,2191,7602,0702,2872,4792,653
11,5501,2231,7672,0772,2952,4882,662
11,6001,2271,7732,0852,3042,4972,672
11,6501,2311,7792,0922,3122,5062,682
11,7001,2351,7852,1002,3202,5162,691
11,7501,2391,7912,1072,3292,5252,701
11,8001,2431,7982,1152,3372,5342,711
11,8501,2481,8042,1232,3452,5432,720
11,9001,2521,8102,1302,3542,5522,730
11,9501,2561,8162,1382,3622,5612,740
12,0001,2601,8222,1452,3702,5702,750
12,0501,2641,8292,1532,3792,5792,759
12,1001,2681,8352,1602,3872,5882,769
12,1501,2721,8412,1682,3952,5972,779
12,2001,2771,8472,1752,4042,6062,788
12,2501,2811,8532,1832,4122,6152,798
12,3001,2851,8602,1912,4212,6242,808
12,3501,2891,8662,1982,4292,6332,817
12,4001,2931,8722,2062,4372,6422,827
12,4501,2971,8782,2132,4462,6512,837
12,5001,3011,8842,2212,4542,6602,846
12,5501,3061,8912,2282,4622,6692,856
12,6001,3101,8972,2362,4712,6782,866
12,6501,3141,9032,2432,4792,6872,875
12,7001,3181,9092,2512,4872,6972,885
12,7501,3221,9162,2582,4952,7052,894
12,8001,3251,9202,2632,5012,7112,901
12,8501,3281,9242,2682,5072,7172,907
12,9001,3311,9282,2732,5122,7232,913
12,9501,3341,9332,2782,5182,7292,920
13,0001,3371,9372,2832,5232,7352,926
13,0501,3401,9412,2882,5292,7412,933
13,1001,3431,9452,2932,5342,7472,939
13,1501,3461,9502,2982,5402,7532,945
13,2001,3491,9542,3032,5452,7592,952
13,2501,3521,9582,3082,5512,7652,958
13,3001,3551,9632,3132,5562,7712,964
13,3501,3581,9672,3182,5622,7772,971
13,4001,3611,9712,3232,5672,7832,977
13,4501,3641,9752,3282,5732,7892,984
13,5001,3671,9802,3332,5782,7942,990
13,5501,3701,9842,3382,5842,8002,996
13,6001,3731,9882,3432,5892,8063,003
13,6501,3761,9932,3482,5952,8123,009
13,7001,3791,9972,3532,6002,8183,016
13,7501,3822,0012,3582,6062,8243,022
13,8001,3852,0052,3632,6112,8303,028
13,8501,3882,0102,3682,6172,8363,035
13,9001,3912,0142,3732,6222,8423,041
13,9501,3942,0182,3782,6282,8483,048
14,0001,3972,0232,3832,6332,8543,054
14,0501,4002,0272,3882,6392,8603,060
14,1001,4032,0312,3932,6442,8663,067
14,1501,4062,0352,3982,6502,8723,073
14,2001,4092,0402,4032,6552,8783,080
14,2501,4122,0442,4082,6612,8843,086
14,3001,4152,0482,4132,6662,8903,092
14,3501,4182,0522,4182,6722,8963,099
14,4001,4212,0572,4232,6772,9023,105
14,4501,4242,0612,4282,6832,9083,112
14,5001,4272,0652,4332,6892,9143,118
14,5501,4302,0702,4382,6942,9203,124
14,6001,4332,0742,4432,7002,9263,131
14,6501,4362,0782,4482,7052,9323,137
14,7001,4392,0822,4532,7112,9383,144
14,7501,4422,0872,4582,7162,9443,150
14,8001,4452,0912,4632,7222,9503,156
14,8501,4482,0952,4682,7272,9563,163
14,9001,4512,1002,4732,7332,9623,169
14,9501,4542,1042,4782,7382,9683,176
15,0001,4572,1082,4832,7442,9743,182
(b) This subsection provides for incomes below table. If
combined adjusted gross income is below six 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 or master based on the resources and
living expenses of the obligor and the number of children due
support. The amount shall not deny the obligor the means for
self-support at a minimum subsistence level, yet a specific amount
of child support should always be ordered, no matter how minimal,
to establish the principle of that parent's obligation to provide
monetary support to the child or children.
(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 or master may
also compute the basic child support obligation for combined
adjusted gross incomes above fifteen thousand dollars by the
following:
(1) One child -- $1,457 + 0.088 x combined adjusted gross
income above fifteen thousand dollars per month;
(2) Two children -- $2,108 + 0.129 x combined adjusted gross
income above fifteen thousand dollars per month;
(3) Three children -- $2,483 + 0.153 x combined adjusted
gross income above fifteen thousand dollars per month;
(4) Four children -- $2,744 + 0.169 x combined adjusted
gross income above fifteen thousand dollars per month;
(5) Five children -- $2,974 + 0.183 x combined adjusted
gross income above fifteen thousand dollars per month; and
(6) Six children -- $3,182 + 0.196 x combined adjusted
gross income above fifteen thousand dollars per month.
(d) When the amount of a support obligation exceeds two
thousand dollars per month per child, the court or master may order a portion of the excess over two thousand dollars per month
to be invested or placed in trust for the benefit of the child or
children. The court or master may place terms and conditions on
the access to the moneys as are in the best interests of the child
or children:
Provided, That the court or master shall order that
all funds so invested or held in trust shall be paid over and
delivered to the child or children at their majority or
emancipation.
§48A-1B-4. Child health care.
(a) A child support order shall also provide for the child's
current and future medical needs by providing relief in accordance
with the provisions of section fifteen-a, article two, chapter
forty-eight of this code.
(b) The payment of a premium to provide health insurance
coverage on behalf of the children subject to the order shall be
added to the basic child support obligation and shall be divided
between the parents in proportion to their adjusted gross income.
The amount to be added to the basic child support obligation shall
be 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 shall be 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 shall be 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.
§48A-1B-5. Work-related child care costs; deduction of tax credit.
(a) The amount of the federal tax credit for child care
expenses that can be realized by the custodial parent should be
deducted 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 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.
§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 or master less
any extraordinary credits agreed to by the parents or ordered by
the court or master.
(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 CustodyCASE NO.
COURT: ________________________________ COUNTY: ___________________________, WEST VIRGINIA
In re the Marriage of: _________________________Petitioner and _______________________ Respondent
|
|
|
|
Children
|
Date of Birth
|
Children
|
Date of Birth
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mother
|
Father
|
Combined
|
1. MONTHLY GROSS INCOME
|
$
|
$
|
|
a. Minus preexisting child support payment
|
-
|
-
|
|
b. Minus maintenance paid
|
-
|
-
|
|
c. Minus responsibility for other children
|
-
|
-
|
|
2.MONTHLY ADJUSTED GROSS INCOME
|
$
|
$
|
$
|
3.PERCENTAGE SHARE OF INCOME (Each parent's income from
line 2 divided by Combined Income)
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%
|
%
|
100%
|
4.BASIC OBLIGATION (Amount from Schedule)
(Apply line 2 Combined to Child Support Schedule.)
|
|
|
$
|
5.ADJUSTMENTS (Expenses paid directly by each parent)
a.Work-Related Child Care Costs (Actual costs minus Federal Tax
Credit.)
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$
|
$
|
|
b.Extraordinary Health Care Expenses (Uninsured only) and
Children's Portion of Health Insurance Premium Costs.
|
$
|
$
|
|
c.Extraordinary Expenses (Agreed to by parents or by order of the
court or master.)
|
$
|
$
|
|
d. Minus Extraordinary Adjustments.
|
$
|
$
|
|
e.Total Adjustments (For each column, add 5a, 5b, and 5c. Subtract
line 5d. Add two totals for Combined amount.)
|
$
|
$
|
$
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6.TOTAL SUPPORT OBLIGATION
(Add line 4 and line 5e Combined.)
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|
|
$
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7.EACH PARENT'S SHARE OF THE TOTAL CHILD SUPPORT
OBLIGATION (Line 3 x line 6 for each parent.)
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$
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$
|
|
8.NONCUSTODIAL PARENT ADJUSTMENT (Enter noncustodial
parent's line 5e.)
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$
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$
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|
9.RECOMMENDED CHILD SUPPORT ORDER
(Subtract line 8 from line 7 for the noncustodial parent only. Leave
custodial parent column blank.)
|
$
|
$
|
|
Comments, calculations, or rebuttals to schedule or adjustments if noncustodial parent directly pays extraordinary expenses.
|
PREPARED BY:
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Date:
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(d) In a case where the actual or attributed income of a
party, if factored into the computation of child support would
result in the obligation of the other party being increased rather
than decreased because of a self-support reserve built into the
calculations, then such actual or attributed income shall not be
considered.
§48A-1B-7. Shared physical custody adjustment.
(a) Child support for cases with shared physical custody shall
be calculated using the 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 nine days per
year (thirty percent). In addition, a shared physical custody
adjustment shall only be made if the sum of the obligee gross
adjusted monthly income and the child support order award is above
two and one-half times the U.S. poverty guideline for the parent
with the highest level of physical custody (if custody is not
equally shared) and the number of children for whom support is
being determined.
(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 child support obligations are then offset, with the
parent owing more child support paying the difference between the
two amounts.
(c) Final adjustments are made by adding the obligor's share
of 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 or master
less any credits to the obligor for the obligor's direct
expenditures on the child's unreimbursed health care expenses, and
extraordinary credits agreed to by the parents or ordered by the
court or master.
(d) Child support for shared physical custody cases shall be
calculated using the following worksheet:
Worksheet B: Shared Physical CustodyCASE NO.
COURT: _________________________________ COUNTY: __________________________, WEST VIRGINIA
In re the Marriage of: _________________________Petitioner and _______________________ Respondent
Children
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Date of Birth
|
Children
|
Date of Birth
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mother
|
Father
|
Combined
|
1. MONTHLY GROSS INCOME
|
$
|
$
|
|
a. Minus preexisting child support payment and maintenance paid
|
-
|
-
|
|
b. Minus responsibility for other children
|
-
|
-
|
|
2.MONTHLY ADJUSTED GROSS INCOME
|
$
|
$
|
$
|
3.PERCENTAGE SHARE OF INCOME (Each parent's income from line 2
divided by Combined Income.)
|
%
|
%
|
100%
|
4.BASIC OBLIGATION (Amount from Schedule)
(Apply line 2 Combined to Child Support Schedule.)
|
|
|
$
|
5.SHARED CUSTODY BASIC OBLIGATION (line 4 x 1.50)
|
|
|
$
|
6.EACH PARENT'S SHARE (Line 5 x each parent's line 3)
|
$
|
$
|
|
7.OVERNIGHT WITH EACH PARENT (must total 365)
|
|
|
365
|
8.PERCENTAGE WITH EACH PARENT (Line 7 divided by 365)
|
%
|
%
|
100%
|
9.AMOUNT RETAINED (Line 6 x line 8 for each parent)
|
$
|
$
|
|
10.EACH PARENT'S OBLIGATION (subtract line 9 from line 6)
|
$
|
$
|
|
11.AMOUNT TRANSFERRED (subtract smaller amount on line 10 from
larger amount on line 10). Parent with larger amount on line 10 pays other
parent the difference.
|
$
|
$
|
|
12.ADJUSTMENTS (Expenses paid directly by each parent)
a.Work-Related Child Care Costs (Actual costs minus Federal Tax
Credit.)
|
$
|
$
|
|
b.Extraordinary Health Care Expenses (Uninsured only) and Children's
Portion of Health Insurance Premium Costs.
|
$
|
$
|
|
c.Extraordinary Expenses (Agreed to by parents or by order of the court
or master.)
|
$
|
$
|
|
d.Minus Extraordinary Adjustments
|
-
|
-
|
|
e.Total Adjustments (For each column, add 12a, 12b, and 12c. Subtract
line 12d. Add two totals for Combined amount.)
|
$
|
$
|
$
|
13.EACH PARENT'S SHARE OF THE TOTAL ADJUSTMENTS (Line 3 x
line 12e for each parent)
|
$
|
$
|
|
14.ADJUSTMENTS PAID IN EXCESS OF SHARE
(Line 12e minus line 13. If negative number, enter zero.)
|
$
|
$
|
|
15.EACH PARENT'S ADJUSTED SUPPORT OBLIGATION
(Line 11 minus line 14)
|
$
|
$
|
|
16.RECOMMENDED CHILD SUPPORT ORDER
(Subtract lesser amount from greater amount in line 15 and enter result
under greater amount.)
|
$
|
$
|
|
Comments, calculations, or rebuttals to schedule or adjustments if noncustodial parent directly pays extraordinary expenses.
|
PREPARED BY:
|
Date:
|
§48A-1B-8. Split physical custody adjustment.
In cases with split physical custody, the court or master
shall use Worksheet A (Sole-Parenting) as set forth in subsection
(c), section six of this article 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.
§48A-1B-9. Adjustment for obligor's social security benefits sent
directly to the child.
If a proportion of the support 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 support obligor and
the obligee shall be counted as gross income to the support
obligor. In turn, the child support order will be calculated as
described in section six of this article. 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.
§48A-1B-10. Application.
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 or master as the basis for
reviewing adequacy of child support levels in noncontested cases as
well as contested hearings.
§48A-1B-11. Modification.
The provisions of a child support order may be modified if
there is a substantial and continuing change of circumstances. 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 and continuing change.
§48A-1B-12. 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 custodial parent except in cases of shared custody. In shared custody 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 or master need make no
allocation to that party.
§48A-1B-13. Indebtedness.
The term "indebtedness" means any legal or contractual
obligation incurred as follows:
(1) For the necessary support of a child with regard to food,
clothing, shelter and medical care; or
(2) For the purpose of acquisitions or additions to or
additions intended to add to the value of marital property of the
parties as defined in section one, article two, chapter forty-eight
of this code.
The court or master may disregard any debt which is incurred
with the obvious intent of decreasing child support payments.
§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;
(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.
§48A-1B-15. Present income as monthly amounts.
To the extent practicable, all information relating to income
shall be presented to the court or master 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 or master deems appropriate,
such information may be presented in such other forms as the court or master directs.
ARTICLE 4. PROCEEDINGS BEFORE A MASTER.
§48A-4-1. Appointment of family law masters; term of office;
vacancy; removal.
(a) The family law masters holding office on the effective
date of this section by virtue of appointments made under the prior
enactments of this article shall continue their service for a term
of office ending on the thirtieth day of June, one thousand nine
hundred ninety-eight. Before the first day of July, one thousand
nine hundred ninety-eight, the governor shall appoint family law
masters in such numbers and to serve from geographical regions of
the state as provided for under the provisions of section four of
this article, with terms commencing on the first day of July, one
thousand nine hundred ninety-eight, and on a like date in every
fourth year thereafter, and ending on the thirtieth day of June,
two thousand two, and on a like date in every fourth year
thereafter. Upon the expiration of his or her term, a family law
master may continue to perform the duties of the office until the
governor makes the appointment, or for sixty days after the date of
the expiration of the master's term, whichever is earlier. If a
vacancy occurs in the office of family law master, the governor
shall, within thirty days after such vacancy occurs, fill the vacancy by appointment for the unexpired term: Provided, That if
the remaining portion of the unexpired term to be filled is less
than one year, the governor may, in his or her discretion,
simultaneously appoint an individual to the unexpired term and to
the next succeeding full four-year term.
(b) An individual may be reappointed to succeeding terms as a
family law master to serve in the same or a different region of the
state.
(c) Removal of a master during the term for which he or she is
appointed shall be as follows:
(1) Upon a recommendation by the judicial hearing board
created pursuant to the rules of procedure for the handling of
complaints against justices, judges, magistrates and family law
masters, if the supreme court of appeals shall find that a family
law master has violated the judicial code of ethics or that the
master, because of advancing years and attendant physical or mental
incapacity, should not continue to serve, the supreme court of
appeals may, in lieu of or in addition to any disposition
authorized by such rules, remove the family law master from office;
and
(2) The supreme court of appeals may remove a master when
conduct of the family law master evidences incompetence, unsatisfactory performance, misconduct, neglect of duty or physical
or mental disability.
§48A-4-4. Assignment of family law masters by geographical
regions.
(a) On and after the first day of July, one thousand nine
hundred ninety-four, there shall be a total of twenty-six family
law masters, not more than fourteen of whom shall be full-time
masters, to serve throughout the state. During the year
immediately preceding the appointment of law masters as provided
for in section one of this article, the supreme court of appeals
shall apportion the state into geographical regions which may be
single-master regions or multi-master regions, or a combination of
both. County boundaries shall be strictly observed and no county
may be divided among two or more regions. Otherwise, in making
such apportionment, the supreme court of appeals shall construct
regions which provide, as nearly as is practicable, for the
caseload of each master to be equal to that of other masters.
Mathematical exactness as to caseload is not required and
deviations from an absolute standard may be based upon concerns,
other than caseload, including, but not limited to, deviations
dictated by the following considerations:
(1) Judicial circuits;
(2) Geographical features which affect the time and expense of
travel;
(3) Traditional patterns of practice by members of the bar;
and
(4) Population variances between regions.
(b) In the region that includes Kanawha County, of the
masters appointed, not less than two shall be part-time masters.
(c) Notwithstanding the provisions of subsection (a) of this
section, for the time period extending from the first day of
August, one thousand nine hundred ninety-six, until the thirtieth
day of June, one thousand nine hundred ninety-eight, there shall
temporarily be a total of twenty-seven family law masters, not more
than fourteen of whom shall be full-time masters, to serve
throughout the state, and the additional part-time position of
family law master created by this subsection shall be assigned to
the region that includes Marshall County.
(d) Nothing contained herein shall prohibit the chief justice
of the supreme court of appeals from temporarily assigning a family
law master from one geographical region to another geographical
region, as caseload, disqualification, recusal, vacation or illness
may dictate.
(e) The administrative office of the supreme court shall promulgate any procedural rule necessary to delineate the duties of
the part-time and full-time law masters consistent with this
article.
§48A-4-20. Circuit court review of master's recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the master when:
(1) No petition has been filed within the time allowed, or the
parties have expressly waived the right to file a petition;
(2) A petition and an answer in opposition have been filed, or
the time for filing an answer in opposition has expired, or the
parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions and determine the
appropriateness of the terms of the recommended order of the
master.
(c) The circuit court shall examine the recommended order of
the master, along with the findings and conclusions of the master,
and may enter the recommended order, may recommit the case, with
instructions, for further hearing before the master or may, in its
discretion, enter an order upon different terms, as the ends of justice may require. Conclusions of law of the family law master
shall be subject to review by the circuit court. The circuit court
shall not follow the recommendation, findings and conclusions of a
master found to be:
(1) Arbitrary, capricious, an abuse of discretion or otherwise
not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or
immunity;
(3) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
(d) In making its determinations under this section, the
circuit court shall review the whole record or those parts of it
cited by a party. If the circuit court finds that a master's
recommended order is deficient as to matters which might be
affected by evidence not considered or inadequately developed in
the master's recommended order, the court may recommit the
recommended order to the master, with instructions indicating the
court's opinion, or the circuit court may proceed to take such
evidence without recommitting the matter.
(e) The order of the circuit court entered pursuant to the
provisions of subsection (d) of this section shall be entered not
later than ten days after the time for filing pleadings or briefs
has expired or after the filing of a notice or notices waiving the
right to file such pleading or brief.
(f) If a case is recommitted by the circuit court, the master
shall retry the matter within twenty days.
(g) At the time a case is recommitted, the circuit court shall
enter appropriate temporary orders awarding custody, visitation,
child support, spousal support or such other temporary relief as
the circumstances of the parties may require.
§48A-4-23. Family law masters fund.
The office and the clerks of the circuit courts shall, on or
before the tenth day of each month, transmit all fees and costs
received for the services of the office under this chapter to the
state treasurer for deposit in the state treasury to the credit of
a special revenue fund to be known as the "family law masters
fund", which is hereby created. All moneys collected and received
under this chapter and paid into the state treasury and credited to
the "family law masters fund" shall be used by the administrative
office of the supreme court of appeals solely for paying the costs
associated with the duties imposed upon the family law masters under the provisions of this chapter which require activities by
the masters which are not subject to being matched with federal
funds or subject to reimbursement by the federal government. Such
moneys shall not be treated by the auditor and treasurer as part of
the general revenue of the state.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;NEWSPAPERS; LEGAL
ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees
shall be paid in advance by the parties for whom such services are
to be rendered:
For instituting any civil action under the rules of civil
procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals, or any other action, cause,
suit or proceeding, seventy-five dollars:
Provided, That the fee
for instituting an action for divorce shall be one hundred five
dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for
use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggestee execution,
one dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, five dollars:
(9) For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents;
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in
any criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars;
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in divorce and other civil
actions and fees for services in criminal cases.
(a) Except for those payments to be made from amounts
equaling filing fees received for the institution of divorce
actions as prescribed in subsection (b) of this section, for each
civil action instituted under the rules of civil procedure, any
statutory summary proceeding, any extraordinary remedy, the
docketing of civil appeals, or any other action, cause, suit or
proceeding in the circuit court, the clerk of the court shall, at
the end of each month, pay into the funds or accounts described in
this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such action
as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of sixty dollars;
(2) Into the court security fund in the state treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(b) For each divorce action instituted in the circuit court,
the clerk of the court shall, at the end of each month, pay into
the funds or accounts in this subsection an amount equal to the
amount set forth in this subsection of every filing fee received
for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility
development fund in the state treasury established pursuant to the
provisions of section ten, article twenty, chapter thirty-one of
this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury,
established pursuant to section twenty-four, article one, chapter
forty-eight of this code, an amount of thirty dollars;
(3) Into the family law masters fund in the state treasury, established pursuant to section twenty-three, article four, chapter
forty-eight-a of this code, an amount of fifty dollars; and
(4) Into the court security fund in the state treasury,
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code, the amount of five dollars.
(c) The clerk of each circuit court shall, at the end of each
month, pay into the regional jail and prison development fund in
the state treasury an amount equal to forty dollars of every fee
for service received in any criminal case against any defendant
convicted in such court and shall pay an amount equal to five
dollars of every such fee into the court security fund in the state
treasury established pursuant to the provisions of section
fourteen, article three, chapter fifty-one of this code.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.
§61-5-29. Failure to meet an obligation to provide support to a
minor; penalties.
(1) A person who: (a) Persistently fails to provide support
which he or she can reasonably provide and which he or she knows he
or she has a duty to provide to a minor; or (b) is subject to court
order to pay any amount for the support of a minor child and is
delinquent in meeting the full obligation established by the order and has been delinquent for a period of at least six months'
duration, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars, or imprisoned in the county jail for not more
than one year, or both fined and imprisoned.
(2) A person who persistently fails to provide support which
he or she can reasonably provide and which he or she knows he or
she has a duty to provide to a minor by virtue of a court or
administrative order and the failure results in: (a) An arrearage
of not less than eight thousand dollars; or (b) twelve consecutive
months without payment of support, is guilty of a felony and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars, or imprisoned for not
less than one year nor more than three years, or both fined and
imprisoned.