H. B. 2734
(By Delegate Huffman)
[Introduced March 26, 1993; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact section five, article five, chapter
sixty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing and
directing the division of human services and the director of
the child advocate office to amend its legislative rules
relating to the formula establishing child support
obligations; child support awards; self support of an
obligor; primary child support need; the definitions of
income and indebtedness; and taxes withheld from income.
Be it enacted by the Legislature of West Virginia:
That section five, article five, chapter sixty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN
RESOURCES TO PROMULGATE LEGISLATIVE RULES.
§64-5-5. Division of human services; director of the child
advocate office.
(a) The Legislature hereby authorizes and directs the
director of the child advocate office of the department of human
services to promulgate rules relating to guidelines for child
support awards in exact conformity with the rules relating to
guidelines for child support awards tendered to the secretary of
state by the Senate committee on the judiciary on the twelfth day
of March, one thousand nine hundred eighty-eight.
(b) The legislative rules filed in the state register on the
twenty-seventh day of May, one thousand nine hundred eighty-
eight, modified by the director of the child advocate office of
the department of human services to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-third day of September, one thousand nine
hundred eighty-eight, relating to the director of the child
advocate office of the department of human services (interstate
income withholding), are authorized.
(c) The legislative rules filed in the state register on the
twenty-seventh day of May, one thousand nine hundred eighty-
eight, modified by the director of the child advocate office of
the department of human services to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-third day of September, one thousand nine
hundred eighty-eight, relating to the director of the child
advocate office of the department of human services (obtaining
support from federal and state income tax refunds), areauthorized.
(d) The legislative rules filed in the state register on the
twenty-seventh day of May, one thousand nine hundred eighty-
eight, modified by the director of the child advocate office of
the department of human services to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-third day of September, one thousand nine
hundred eighty-eight, relating to the director of the child
advocate office of the department of human services (termination
of income withholding), are authorized.
(e) The legislative rules filed in the state register on the
twenty-seventh day of May, one thousand nine hundred eighty-
eight, modified by the director of the child advocate office of
the department of human services to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-third day of September, one thousand nine
hundred eighty-eight, relating to the director of the child
advocate office of the department of human services (providing
information to credit reporting agencies), are authorized.
(f) The Legislature hereby authorizes and directs the
division of human services and the director of the child advocate
office to amend its rules relating to the formula establishing
child support obligations; child support awards; self support of
an obligor; primary child support need; the definitions of income
and indebtedness; and taxes withheld from income with the
amendments set forth below:
"§78-16-2.3
Determination of the base income available for primary child
support--The court shall determine for each support obligor
(custodial & noncustodial obligations) the amount of "base pay
income" available (excluding overtime, shift differentials, and
bonuses which is not a consistent income) for "primary child
support" by subtracting the self-support need of the obligor from
the base pay income of such obligor. The self-support need is to
be deducted automatically self-support need.
§78-16-2.4
Determination of the total support need--The court shall
establish the primary support need for each child for whom the
child support is sought and then total these amounts. The needs
of all the children in question, the cost of extraordinary
medical expenses, after proven to the court shall be divided
equally between both parents. The cost of child care, if
custodial parent is working this cost, shall be divided equally
between both parents, unless such expenses or costs have been
deducted from income. Other expenses incurred because of the
special needs of a child may be allowed if both parents agree
upon these needs and the court establishes this as so it shall be
divided equally between both parents. The court shall deduct
from primary support need of a child the unearned income of such
child if this amount has been deducted on the federal and state
income tax. The amount resulting from these calculations shall
be the total primary support need of the child or children, whichis to be the responsibility of both parents.
§78-16-2.5
Determination of the primary support obligation of each
obligor--The court shall divide equally to each support obligors
(which the support obligation belongs to both parents)
(noncustodial & custodial) base pay income-excluding overtime,
shift differentials and bonuses, after deductions, from income
required by law 78-16-8.1, after deductions from income required
by an employer as a condition of employment 78-16-9.1, after
deductions from income required by a union as a condition of
employment 78-16-10.1 and after deductions of the self-support
need of an obligor 78-16-15.1. 2.3. The resulting percentage
establishes the privilege which each support obligor
(noncustodial & custodial) should carry with respect to the
primary child support needs of their children. This percentage
should then be multiplied by the total primary child support need
in order to arrive at the primary support obligation of each
obligor (noncustodial & custodial).
§78-16-2.6
If the discretionary base pay income of support obligor is
below the sum of $40,000 a year after deductions--The standard of
living adjustment (SOLA) will not apply to the percentages in the
support obligation. The SOLA amount is to be mandatory and to be
put into an educational trust fund for the child or children, as
the responsibility of the noncustodial parent, if both parents
agree. At the age of 18, the child or children can decide andchoose how he or she will spend the educational trust fund, for
their education, automobiles, or their own shelter, etc...
§78-16-2.7
Calculation of the SOLA support obligations--If
discretionary income is available, a support obligor shall be
required to pay as a "SOLA support obligation," amounts
calculated as percentages of discretionary income as follows:
First child 10%
Second & third child 10% each
Fourth, fifth, sixth 10% each
§78-16-2.8
Calculation of the per-child share of SOLA support--Upon
determining the base pay income (excluding overtime, shift
differentials and bonuses) of the support obligor is below the
sum of $40,000,00 a year, the standard of living adjustment will
not apply. However, if SOLA support is applied, the court shall
calculate 10% per-child share of such SOLA support. The SOLA
amount if applied has to be verified and justified in the
receiving of child support by the custodial parent upon proof of
benefiting the child at end of each year.
§78-16-2.9.1
At no time, unless disabled, shall either noncustodial or
custodial parent refrain from their obligation, both parents have
to be responsible for his or her child support. The obligation
shall be divided equally, unless disabled, then the child support
payments should be made through an application through the socialsecurity administration.
§78-16-2.9.4
Payments to third parties in the form of home loan
installments, land contract payments, rent, payments for utility
services, property taxes, insurance coverage, or other expenses
or charges reasonably necessary for maintenance of a residence
for the support obligor's children, to the extent that such
payments have been specifically denominated as child support by
a court order or a valid separation agreement, shall, if actually
paid, be credited against both support obligor's (noncustodial &
custodial) total monthly child support obligation and divided for
equal deductions:
Provided,
That in no event shall the credits
given under this subdivision reduce the support obligor's total
monthly child support obligation to an amount less than such
support obligor's primary support obligation.
§78-16-4.1.1.1
Both support obligors are 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 support obligor.
§78-16-4.1.1.2
Both support obligors are 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 oreducation.
§78-16-4.1.1.3
Both support obligors are for valid medical reasons, earning
an income in an amount less than that previously earned.
§78-16-4.1.1.4
Both support obligors have made diligent efforts to find and
accept available suitable work or to return to customary self-
employment, to no avail.
§78-16-4.1.2
If a court or master determines that a limitation on income
is not justified in that it is a result of a self-induced decline
in income, a refusal to occupy time profitably, or an
unwillingness to accept employment and earn an adequate sum, the
court may consider evidence establishing both support obligor's
earning capacity in the local job market, and may attribute
income to such obligor, equally divided.
§78-16-4.1.3
As an alternative to the method of determining attributed
income provided for in subdivision 4.1.2, where a support obligor
is remarried and is unemployed, underemployed by quitting, or is
otherwise working below full earning capacity, the court or
master may attribute income to the support obligor in an amount
not to exceed that which could be derived by the obligor from
full-time employment at the current minimum wage.
§78-16-13.1
The term "payments for the benefit of children" shall meanan amount or amounts paid by (both parents) support obligors to
third parties on a regular, recurring basis for the benefit of
the support obligor's children, including, but not limited to,
tuition, health care expenses, hospital insurance, medical,
dental or optical insurance.
§78-16-13.2
Payments for the benefit of children which are, in fact,
extraordinary medical expenses (proved by the court), cost of
child care needed to allow a custodial parent to work (has to be
justified and verified by the child care facility or babysitter
and their signature), or other expenses incurred because of the
special needs of a child, may, in the discretion of the court or
master, be treated as payments for the benefits of children
divided in one-half and subtracted from each (noncustodial &
custodial) income. If such costs and expenses are subtracted
from each (noncustodial & custodial) income under subsection 2.1,
they shall not be added to primary support needs under 2.4. If
such costs and expenses are not deducted from income, and are
used in calculating the primary child support need, such payments
shall be subtracted, as child support payments, from the total
monthly child support obligation of the obligor as calculated
under subsection 2.9.
§78-16-15.1
The term "self-support need of an obligor" or "primary self-
support need of an obligor" shall mean the equal amount of income
that both support obligor must retain to function at maximumproductivity.
§78-16-15.2
In determining self-support need of an obligor, it shall be
a mandatory deduction from the child support formula by the court
or master, the expenses for food, clothing, shelter, medical care
and job-required transportation.
§78-16-15.3
If presented, the court shall consider evidence of probative
facts as to the needs of a support obligor with regard to a
consideration of matters described in 15.2, and if such evidence
is convincing under a jury trial, may determine that a variance
from the presumptive minimum need is supported by such evidence.
If such evidence is not presented, or is not convincing under a
jury trial, the self-support need of an obligor will be the
presumptive minimum need of such obligor as calculated under the
provisions of section seventeen.
§78-16-16.1
The term "primary child support need" shall mean the
absolute minimum amount of a money that a child requires for
food, clothing, shelter and medical care. If the custodial
parent is remarried the shelter in the child support formula, to
be mandated, is to be terminated. If the custodial parent is
cohabitating the shelter in the child support formula is to be
decreased.
§78-16-16.2
The primary support need of a child will be the presumptiveminimum need of such child as calculated under the provisions of
section seventeen, presented in the bill unless the court or
master determines that a variance from the presumptive minimum
need is supported by convincing evidence. It is to be mandatory
for the custodial parent to verify and justify at the end of each
year that the primary child support obligation received by the
custodial parent was for food, clothing, shelter and medical care
for the child or children. This is in protection of the child or
children to restrain the custodial parent from misusing child
support on such as: Alcohol, drugs, automobiles or any luxuries
that a custodial parent would benefit from.
§78-16-3.1.1
Commissions, earnings, salaries, wages and other income due,
or to be due in the future, to support obligor from his or her
employer and successor employers, excluding fringe benefits such
as business expense accounts, excluding business credit accounts,
and excluding tangible property such as automobiles and meals, to
the extent that they provide a support obligor with property or
services he or she would otherwise have to provide.
§78-16-17.1.3
Where a support obligor is remarried and both the support
obligor and his or her present spouse are fully employed, they
are to be treated as a unit. The minimum presumptive need of the
couple would be $850 ($550 for the first adult + $250 for the
second adult in the same household + $50 additional work-related
expense for the employed spouse). The support obligor will beallowed 50% of this amount or $425, for biweekly amount, as his
or her minimum presumptive need.
§78-16-17.1.4
In a case where a support obligor is remarried and
unemployed, and the court or master has attributed income to the
obligor, the obligor and his or her spouse are to be treated as
a unit, and the minimum presumptive need of the couple would be
$800($550 for the first adult + $250 for the second adult in the
same household). The support obligor will be allowed 50% of this
amount, or $400 for a biweekly amount, as his or her minimum
presumptive need. No additional work-related expenses will be
allowed, since the obligor is not employed outside of the home.
§78-16-7.1
The term "taxes withheld from income" shall mean the amount
of income tax deducted and withheld by a "employer from income of
a support obligor, computed in such a manner as to result, so far
as is practicable, in withholding an amount substantially
equivalent to the income tax estimated to be due. The amount of
taxes withheld from income, to be valid as a factor in
determining the amount of child support owed by a support
obligor, shall be based upon the maximum number of withholding
exemptions allowable under the applicable tax law, and in a case
of remarriage the second family will be included in the benefits.
§78-16-3.1.2
Any payment due to a support obligor from a profit-sharing
plan, a pension plan, an insurance contract, an annuity, socialsecurity, unemployment compensation, supplemental employment
benefits and workers' compensation payable under a workers'
compensation law as temporary total disability benefits shall be
applied but at a rate not to exceed 50% of an existing court
ordered obligation and at no time will arreage be applied during
these situation. At no time shall the fact that a parent has
remarried, or the fact that the spouse of a remarried parent is,
or is not, gainfully employed, or that said spouse has income
from whatever source, be considered in determining whether or not
to increase or decrease child support payments by or to the
remarried parent. In case of remarriage, additional family
members shall benefit from its claims and equal share of income
tax return.
§78-16-14.2
The court or master may disregard any debt which is incurred
with the obvious intent of decreasing child support payments such
as boats, extra automobiles, hunting cabins, jewelry and luxury
items. Also, if a noncustodial or a custodial parent is trying
to prove a hardship case, he or she may do so only in open court.
§78-16-17.1
The term "presumptive minimum need" shall mean the amount of
money that a person is presumed to need for the necessities of
life, based upon their rank in their particular household. The
presumptive minimum needs of the several members of a given
household are as follows:
First Adult- support obligor- $550 per month
Second Adult- present spouse- $250 per month
First Child $135 per month
Second Child $135 per month
Third Child $135 per month
Fourth Child, Fifth, Sixth, etc... $135 per month
Each child is equal and to be created equal."
NOTE: The purpose of this bill is to authorize and direct
the division of human services and the director of the child
advocate office to amend its rules relating to the formula
establishing child support obligations; child support awards;
self-support of an obligor; primary child support need; and the
definitions of income and indebetedness; and taxes withheld from
income.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.