Pursuant to the Pennsylvania Support Guidelines, the guidelines shall be reviewed at least once every four years. After the most recent review, which began in 2007, the new Support Guidelines were adopted on Jan. 12. The effective date is May 12, 2010.

The new guidelines differ from the existing guidelines in a number of ways. This article will first highlight three of the more significant changes.

The three significant changes are as follows:

• The Monthly Basic Child Support Schedule, commonly referred to as "the charts," have been increased from a combined monthly net income of $20,000 to $30,000.

• "High-income cases" (i.e., cases where the parties' combined monthly net incomes exceed the limit of the charts) will be calculated based on a formula rather than the needs-based analysis pursuant to Melzer v. Witsberger.

• In high-income cases, the trier of fact is mandated to consider the deviation factors and may deviate from the Guideline formula when calculating alimony pendente lite/spousal support.

With regard to the first significant change, the ceiling in the child support "chart" has been raised to $30,000. Therefore, in child support cases where the parties' combined monthly net income totals $30,000 or less, the child support obligation will be calculated pursuant to the charts. This will result in the majority of child support cases falling within the charts.

The goal of the Support Guidelines is to create uniformity and predictability. By increasing the ceiling of the charts, fewer cases will be considered high-income cases. In just 10 years, the Support Guidelines have been revised twice, and the ceiling of the charts has since doubled. The official comments contained throughout the new guidelines reflect that they have been adjusted to build in the assumption that the non-custodial parent has at least 30 percent of parenting time. This has resulted in decreases in the support amounts in certain areas of the charts. However, the charts did not uniformly decrease across the board.

Further, the explanatory comments indicate that an upward deviation should be considered in cases where the obligor has little or no contact with the children, but an upward deviation may not be appropriate where the obligor has infrequent overnight contact with the child but provides meals and entertainment during daytime contact. Additionally, the explanatory comments state: "Fluctuating expenditures should be considered rather than the extent of overnight time. Downward deviation may be appropriate when the Obligor incurs substantial fluctuating expenditures during parenting time, but has infrequent overnights with the children."

As many family law practitioners know, when calculating child support pursuant to the charts, the courts were to round up to the next number on the chart regarding the parties' combined monthly incomes. Under the new guidelines, the court is to use traditional rounding techniques. Therefore, if the parties' combined monthly net income, for example, is $14,254, the guideline amount on the chart would be pursuant to an amount for parties with a combined monthly net income of $14,250 as opposed to $14,300 (the next amount on the chart).

Regarding the second significant change, in high-income cases, prior to the new guidelines, if the parties' combined monthly net income exceeded the ceiling of the charts, the court conducted a needs-based analysis. Such an analysis was a timely and expensive endeavor for the parties. The parties were previously required to produce binders that contained back-up documentation for all of the expenses being argued. The needs-based analysis was pursuant to the case of Melzer v. Witsberger. As such, high-income child support cases were referred to as "Melzer cases."

A Melzer case would in many instances result in child support figures that were much higher than cases that were calculated pursuant to the outermost edges of the charts. For example, under the existing guidelines, in a case where the parties' combined monthly net income was $2 higher than the ceiling of the chart ($20,000 on the existing soon-to-be replaced guidelines), a Melzer calculation would be conducted, and the child support amount could be as high as $15,000 or more per month. However, if the parties' combined monthly net income totaled $20,000, and the parties had one child, the support figure could be approximately $2,300 per month.

Pursuant to the new guidelines, there will be no Melzer cases. In all high-income child support cases, a three-step process is to be followed. First, the court is to apply a formula as a preliminary analysis to calculate the base child support amount. The formula is a percentage calculation of the parties' combined monthly net incomes over $30,000, which is then added to the highest amount of support on the chart in accordance with how many children are subject to support. The base amount is then allocated pursuant to the parties' proportion of their combined monthly net incomes.

The second step is where the trier of fact shall allocate any additional expenses that are applicable in the case (for example, daycare). The third step is where the trier of fact shall consider the deviation factors contained in Rule 1910.16-5. The deviation factors contained in the new guidelines are the same as they were under the old guidelines with a few minor adjustments.

Interestingly, one of the deviation factors is the "Standard of Living of the parties and their children." Family law practitioners are questioning whether said deviation factor will open the door to a Melzer-type analysis. The new guidelines still require that the litigants provide expense charts/schedules and backup documentation for any expenses that the payee would like to be allocated between the parties, which creates a deviation from the base support amount on the charts.

Because a Melzer analysis required a review of practically every expense under the sun, it is believed that the new guidelines will create child support orders that are much less than the prior Melzer orders in high-income cases. Further, previously there was no deviation in a Melzer case based on the amount of custodial time the parent with partial physical custody had with the children. Under the new guidelines, the deviation for a payor with 40 percent or more of the overnights with the children will be considered in high-income cases in the same manner as it is considered in cases that are on the charts.

With regard to the third significant change, when calculating spousal support and alimony pendente lite in high income cases, under the new Guidelines, the court is now mandated to consider the deviation factors contained in Rule 1910-16.5. Will a Melzer-type analysis now occur in such cases? This could result in higher APL/spousal support orders, less uniformity and more litigation.

Pursuant to the new guidelines, expense statements are also required in APL/spousal support cases where the party avers unusual needs and expenses that warrant a deviation from the guideline amount.

As a grab-bag overview, the family law practitioner should also be mindful of the following additional changes. The new guidelines reiterate that the mortgage adjustment/deviation shall not be applied after the final resolution of all outstanding economic claims in divorce. The earning capacity language in the new guidelines now requires: "In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record. Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full time position."

The guidelines also direct the trier of fact to consider whether a party has exerted a substantial good faith effort to find employment. The theory behind the new earning capacity language does not differ substantially from the existing case law and statutes, but merely clarifies same. The duration language that was previously reflected under the deviation factors has been relocated to Rule 1910.16.1(c)(2). The threshold in SSI cases has been raised to $850 per month, and the treatment of foster care payments has been addressed as well.

This article did not address every change in the new Guidelines. Therefore, all family law practitioners should review the new Guidelines carefully.

Lastly, as a practitioner's tip, it is important for family law attorneys to remember that pursuant to Rule 1910.19(a): "[a] new guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances ..." which may warrant a modification in an existing case. •



Michael E. Bertin is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. He is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association, and a member of the executive committee and council of the family law section of the Pennsylvania Bar Association. 


This article is reprinted with permission from the February 10, 2010, issue of The Legal Intelligencer. © 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved


The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.