Rule 1910.16-2 Support Guidelines. Calculation of Monthly Net Income

Concerning subdivision (a)(7), in determining the appropriateness of including alimony in gross income, the trier-of-fact shall consider whether the party receiving the alimony must include the amount received as gross income when filing federal income taxes. If the alimony is not includable in the party’s gross income for federal income tax purposes, the trier-of-fact may include in the party’s monthly net income the alimony received, as appropriate. See Pa.R.Civ.P. 1910.16-2(c)(2)(ii).

Since the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient’s gross income will also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing the obligee’s college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligee’s general living expenses, inclusion of the alimony as income is appropriate.

Concerning subdivision (a)(8), the trier-of-fact determines the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party’s support obligation. These awards may be annualized or averaged over a shorter or longer period depending on the case’s circumstances. The trier-of-fact may require all or part of the lump sum award escrowed to secure the support obligation during that period.

The trier-of-fact shall not include income tax refunds in a party’s income, if the trier-of-fact factored in the tax refund when calculating the party’s actual tax obligation and monthly net income.

Concerning subdivision (b), care should be taken to distinguish Social Security from Supplemental Security Income (SSI) benefits. Social Security benefits are income pursuant to subdivision (a).

Subdivision (b) Example 1. The obligor has monthly net income of $2,000. The obligee’s monthly net income is $1,500 and the obligee, as primary custodial parent of the parties’ two children, receives $700 per month in Social Security derivative benefits on behalf of the children as a result of the obligor’s disability. Add the children’s benefit to the obligee’s income, which now is $2,200 per month. At the parties’ combined monthly net income of $4,200, the basic child support obligation for two children is $1,445. As the obligor’s income is 48% of the parties’ combined monthly net income, the obligor’s preliminary share of the basic child support obligation is $694. However, because the obligor’s disability created the children’s Social Security derivative benefits that the obligee is receiving, the obligor’s obligation is reduced by the amount of the benefit, $700. As the support obligation cannot be less than zero, the obligor’s basic child support obligation is $0 per month. If it were the obligee’s disability that created the benefit, the obligor’s basic child support obligation would remain $694. If the obligor were receiving the children’s benefit as a result of the obligor’s retirement or disability, the obligor’s monthly net income would include the amount of the benefit and total $2,700, or 64% of the parties’ combined monthly net income. The obligor’s share of the basic child support obligation would then be $925 and would not be reduced by the amount of the children’s benefit because the obligor, not the obligee, is receiving the benefit. Therefore, the obligor’s basic child support obligation is less if the obligee is receiving the benefit created by the obligor.

Subdivision (b) Example 2. Two children live with Grandmother who receives $800 per month in Social Security death benefits for the children as a result of Father’s death. Grandmother also receives $500 per month from a trust established by Father for the benefit of the children. Grandmother is employed and earns $2,000 net per month. Grandmother seeks support from the children’s mother, who earns $2,000 net per month. For purposes of calculating Mother’s basic child support obligation, Grandmother’s income will be $1,300, the amount she receives on the children’s behalf in Social Security derivative benefits and the trust income. (If Mother were receiving the benefit on the children’s behalf, the benefit would be added to Mother’s monthly net income and would be $2,800. Grandmother’s monthly net income would be $500.) Therefore, Mother’s and Grandmother’s combined monthly net income totals $3,300. The basic child support obligation at the $3,300 monthly net income level for two children is $1,156. As Mother’s monthly net income of $2,000 is 61% of the parties’ combined monthly net income of $3,300, Mother’s basic child support obligation is $705. Since Mother’s retirement or disability did not generate the child’s derivative benefit, the benefit amount is not subtracted from Mother’s basic child support obligation, and Mother owes Grandmother $705. If Grandmother was not receiving the children’s derivative benefits or trust income, Grandmother’s monthly net income for purposes of calculating Mother’s basic child support obligation would be zero, and Mother would pay 100% of the basic child support obligation because Grandmother has no duty to support the children.

Concerning subdivision (c)(1)(v), because the reasons for ordering payment of alimony vary, the appropriateness of including it in the recipient’s monthly net income will also vary. For example, if the obligor is paying $1,000 per month in alimony for the express purpose of financing the obligee’s college education, it would be inappropriate to consider that alimony as income from which the obligee could provide child support. However, if alimony is intended to finance the obligee’s general living expenses, inclusion of the alimony as income is appropriate.

Concerning subdivision (d)(2)(i) and the inclusion of ‘‘incarceration,’’ see 45 C.F.R. § 302.56(c)(3) (‘‘[I]ncarceration may not be treated as voluntary unemployment in establishing or modifying support orders.’’).

Concerning subdivision (d)(4), a party’s earning capacity may be determined to be $0.00 in appropriate cases.

The consideration of child care expenses if the party were employed in subdivision (d)(4)(i)(D) is not for purposes of reducing imputed income when calculating the party’s basic child support obligation. The child care expenses that would be payable if a party were employed are subject to discretionary allocation pursuant to Pa.R.Civ.P. 1910.16-6(a)(1)(ii).

Concerning subdivision (d)(4)(ii), see 45 C.F.R. § 302.56(c)(1)(iii) regarding earning capacity factors.

Concerning subdivision (d)(4)(ii)(A), the trier-of-fact shall consider an unemployed or underemployed parent’s child care responsibilities and expenses when determining that parent’s earning capacity. The trier-of-fact should consider whether child care is available and appropriate considering the child’s needs. Assuming child care is available and appropriate, the trier-of-fact should next consider the child care expenses that the parent would actually pay if employed. This excludes child care provided at no cost to the parent by a family member or other responsible person. Additionally, any portion of a child care expense that would be eligible for subsidization by a third party or through a government program should not be included. If the unallocated hypothetical child care expenses are equal to or exceed the parent’s earning capacity, then no income should be imputed for that parent, e.g., earning capacity is $0.00. If the unallocated hypothetical child care expenses are less than the parent’s earning capacity, then the hypothetical child care expenses that would be actually paid by the parent, if employed, may be allocated pursuant to Pa.R.Civ.P. 1910.16-6(a)(1)(ii).

Subdivision (e)(1)(ii) Example: The parties have two children. The obligee has monthly net income of $2,500. The obligor has monthly net income of $1,500, which falls into the shaded area of the schedule for two children. The initial calculation is made using only the obligor’s monthly net income. The basic child support obligation for two children would be $223. The second calculation uses the parties’ combined monthly net income. The parties’ combined monthly net income is $4,000. The basic child support obligation for two children is $1,377. The obligor’s proportionate share of the parties’ combined monthly net income is 38% with a basic child support obligation of $523. The obligor’s basic child support obligation using only the obligor’s monthly net income is less than the calculated amount using the parties’ combined monthly net income. As a result, the trier-of-fact should award the lesser amount, and the obligor’s basic child support obligation is $223.

Subdivision (e)(1)(iii) Example: The obligor has $1,500 monthly net income, and the obligee has $300 monthly net income. The formula in Pa.R.Civ.P. 1910.16-4(a)(1)(Part B) would result in a monthly spousal support obligation of $375 (( $1,500 x 33% = $495) minus ($300 x 40% = $120) for a total of $375)). Since this amount leaves the obligor with only $1,125 per month, the trier-of-fact should adjust the support obligation so the obligor retains at least $1,255 per month. Therefore, the spousal support obligation is $245 per month ($1,500 - $1,255).

Subdivision (e)(1)(iv) Example: Obligor and obligee have monthly net incomes of $2,000 and $165, respectively, and have two children. Calculating spousal support under subdivision (e)(1)(iv)(A) results in a spousal support obligation of $450 ($2,000 x 25% minus $165 x 30%). Obligor’s adjusted monthly net income ($2,000 minus $450) is $1,550. Obligor’s adjusted monthly net income of $1,550 with two children is in the shaded area of the Basic Child Support Schedule, and as a result, the trier-of-fact shall not award spousal support. Instead, the trier-of-fact should award child support only as provided in subdivision (e)(1)(ii).

Concerning subdivision (e)(2), see Hanrahan v. Bakker, 186 A.3d 958 (Pa. 2018).

Historical Commentary

The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:

Explanatory Comment—2010

Subdivision (a) addresses gross income for purposes of calculating the support obligation by reference to the statutory definition at 23 Pa.C.S. § 4322. Subdivision (b) provides for the treatment of public assistance, SSI benefits, Social Security derivative benefits, and foster care payments.

Subdivision (c) sets forth the exclusive list of the deductions that may be taken from gross income in arriving at a party’s net income. When the cost of health insurance premiums is treated as an additional expense subject to allocation between the parties under Pa.R.C.P. No. 1910.16-6, it is not deductible from gross income. However, part or all of the cost of health insurance premiums may be deducted from the obligor’s gross income pursuant to Pa.R.C.P. No. 1910.16-6(b) in cases in which the obligor is paying the premiums and the obligee has no income or minimal income. Subdivision (c) relates to spousal support or alimony pendente lite awards when there are multiple families. In these cases, a party’s monthly net income must be reduced to account for his or her child support obligations, as well as any pre-existing spousal support, alimony pendente lite or alimony obligations being paid to former spouses who are not the subject of the support action.

Subdivision (d) has been amended to clarify the distinction between voluntary and involuntary changes in income and the imputing of earning capacity. Statutory provisions at 23 Pa.C.S. § 4322, as well as case law, are clear that a support obligation is based upon the ability of a party to pay, and that the concept of an earning capacity is intended to reflect a realistic, rather than a theoretical, ability to pay support. Amendments to subdivision (d) are intended to clarify when imposition of an earning capacity is appropriate.

Subdivision (e) has been amended to reflect the updated schedule in Pa.R.C.P. No. 1910.16-3 and the increase in the Self-Support Reserve (‘‘SSR’’). The schedule now applies to all cases in which the parties’ combined monthly net income is $30,000 or less. The upper income limit of the prior schedule was only $20,000. The support amount at each income level of the schedule also has changed, so the examples in Pa.R.C.P. No. 1910.16-2 were revised to be consistent with the new support amounts.

The SSR is intended to assure that obligors with low incomes retain sufficient income to meet their basic needs and to maintain the incentive to continue employment. When the obligor’s monthly net income or earning capacity falls into the shaded area of the schedule, the basic child support obligation can be derived directly from the schedule in Pa.R.C.P. No. 1910.16-3. There is no need to use the formula in Pa.R.C.P. No. 1910.16-4 to calculate the obligor’s support obligation because the SSR keeps the amount of the obligation the same regardless of the obligee’s income. The obligee’s income may be a relevant factor, however, in determining whether to deviate from the basic guideline obligation pursuant to Pa.R.C.P. No. 1910.16-5 and in considering whether to require the obligor to contribute to any additional expenses under Pa.R.C.P. No. 1910.16-6.

Since the schedule in Pa.R.C.P. No. 1910.16-3 sets forth basic child support only, subdivision (e)(1)(ii) is necessary to reflect the operation of the SSR in spousal support and alimony pendente lite cases. It adjusts the basic guideline obligation, which would otherwise be calculated under the formula in Pa.R.C.P. No. 1910.16-4, so that the obligor’s income does not fall below the SSR amount in these cases.

Previously, the SSR required that the obligor retain at least $748 per month. The SSR now requires that the obligor retain income of at least $867 per month, an amount equal to the 2008 federal poverty level for one person. When the obligor’s monthly net income is less than $867, subdivision (e)(1)(iii) provides that the trier-of-fact must consider the parties’ actual living expenses before awarding support. The guidelines assume that at this income level the obligor is barely able to meet basic personal needs. In these cases, therefore, entry of a minimal order may be appropriate. In some cases, it may not be appropriate to order support at all.

The schedule at Pa.R.C.P. No. 1910.16-3 sets forth the presumptive amount of basic child support to be awarded. If the circumstances warrant, the trier-of-fact may deviate from that amount under Pa.R.C.P. No. 1910.16-5 and may also consider a party’s contribution to additional expenses, which are typically added to the basic amount of support under Pa.R.C.P. No. 1910.16-6. If, for example, the obligor earns only $900 per month but is living with his or her parents, or has remarried and is living with a fully-employed spouse, the trier-of-fact may consider an upward deviation under Pa.R.C.P. No. 1910.16-5(b)(3) or may order the party to contribute to the additional expenses under Pa.R.C.P. No. 1910.16-6. Consistent with the goals of the SSR, however, the trier-of-fact should ensure that the overall support obligation leaves the obligor with sufficient income to meet basic personal needs and to maintain the incentive to continue working so that support can be paid.

Subdivision (e) also has been amended to eliminate the application of Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984), in high-income child support cases. In cases in which the parties’ combined net monthly income exceeds $30,000, child support will be calculated in accordance with the three-step process in Pa.R.C.P. No. 1910.16-3.1(a).

Explanatory Comment—2013

The SSR has been increased to $931, the 2012 federal poverty level for one person. Subdivision (e) has been amended to require that when the obligor’s income falls into the shaded area of the basic child support schedule in Pa.R.C.P. No. 1910.16-3, two calculations must be performed. One calculation uses only the obligor’s income and the other is a regular calculation using both parties’ incomes, awarding the lower amount to the obligee. The two-step process is intended to address those cases in which the obligor has minimal income and the obligee’s income is substantially greater.

Explanatory Comment—2015

The rule has been amended to provide that a party’s support obligation will be reduced by the child’s Social Security derivative benefit amount if that party’s retirement or disability created the benefit and the benefit is being paid to the household in which the child primarily resides or the obligee in cases of equally shared custody. In most cases, payment of the benefit to the obligee’s household will increase the resources available to the child and the parties. The rule is intended to encourage parties to direct that the child’s benefits be paid to the obligee.

Explanatory Comment—2021

The Self-Support Reserve is determined by the Federal Poverty Guideline for one person converted to a monthly amount—currently $1,063—for the year the Basic Child Support Schedule was derived.

Subdivision (e)(1) addresses low-income cases and has been completely rewritten and identifies the current monthly Self-Support Reserve (SSR) amount as $1,063. The SSR is the amount of the obligor’s monthly net income that is reserved to meet the obligor’s basic needs. Subdivisions (e)(1)(ii)—(iv) adjust the methodology for calculating support when the obligor’s monthly net income is at or near the SSR amount.