Posted by: Manuel Russ & Marlene Moses on Sep 1, 2020

Journal Issue Date: Sept-Oct. 2020

Journal Name: Vol. 56 No. 9

A committee tasked with reviewing and making recommendations to the Tennessee Child Support guidelines recently completed an approximately two-year review and revision of those guidelines, a process that led to numerous revisions and amendments. The changes that will be implemented in 2020 after this review process alter several specific provisions for modifying a party’s child support obligation throughout Tennessee. While most of the amendments will not cause significant changes to the eligibility or methodology for modification, they are still the most significant alterations to the law since 2005 when theincome-shares model was instituted. In a May 11, 2020, press release, the Tennessee Department of Human Services wrote that these amendments will “help align all child support orders with changing family economics, improve the system for both custodial and noncustodial parents, and meet new federal requirements.”1 All family law practitioners should be aware of the changes as they may well impact your daily practice. Although the new Child Support Guidelines went into effect on May 7, 2020, to delay the impact of these change and to prevent a flood of new modification petitions, a petition to modify child support will still require both a material change in circumstance and a significant variance in the support ordered, until Nov. 7, 2020. After Nov. 7, a material change in circumstance will no longer be required, and a petitioner may obtain a child support modification by only showing a 15% significant variance.

Noteworthy Changes

One of the more significant changes from the previous guidelines relates to child support worksheet credits for health and dental care. Under the current provisions in the code, if a parent remarries and their new spouse’s insurance covers their child for health care, dental or vision, the parent does not receive any credit on the child support calculation for this. This is because as a party to the support determination, they are not directly contributing. One of the amendments to the guidelines would now give the party credit for the contribution of their new spouse to the health care of the child or children. This change is impactful, and it signals a shift to a more equitable understanding about the way modern families are constructed and the contribution that each side makes to the welfare of the children from a marriage whether that be direct, or more indirect. 

The new Guidelines also increased the list of factors that a tribunal may consider in determining the amount of income to impute to a parent that is voluntarily underemployed or voluntarily unemployed. These factors include: assets; residence; employment and earnings history; job skills; educational attainment; literacy; age; health; criminal record and other employment barriers; records of seeking work; the local job market; the availability of employers willing to hire the parents; prevailing earnings level in the local community; and other relevant background factors. Moreover, if imputation of income is authorized, but the tribunal does not have adequate or reliable evidence of income, the gross income for the current and prior years shall be determined by imputing annual gross income of $43,761 for male parents and $35,936 for female parents. These figures represent the full-time, year-round workers’ median gross income, for the Tennessee population only, from the American Community Survey of 2016 from the U.S. Census Bureau. 

A further change to the guidelines sets a minimum of $100 per month for the non-custodial parents unless that is excused under certain circumstances.2 This minimum payment may be excused for both specific and discretionary reasons. It shall be excused when “the obligor’s only source of income is Supplemental Security Income (SSI); [w]hen the federal benefit for a child results in a calculation of support owed to be less than the minimum amount; or [w]hen the Parenting Time Adjustment results in an amount less than the minimum child support order.”3 Additionally, the minimum payment may be excused by the court where, “in its discretion” the court “may deviate from the minimum child support order by either setting a higher or lower support order.”4 Given this last catchall, it is not clear how many people this would apply to, or not — since the tribunal would have the discretion to relieve a party from the minimum payment by conducting the normal process for setting support, if that process resulted in a lower monthly payment than the $100 minimum. However, the delay in the full implementation of the changes until Nov. 7 and the caveat that interim modifications must also have a material change in circumstance, reflected the belief that the courts would otherwise be inundated with modifications. Presumably, it was this change to the guidelines that the committee had in mind when it determined that they would stagger the effects of the changes by holding off on the unfettered use of these amendments as it would be the one, most likely, to effect the largest group of payors in the state. 

Another significant change was the establishment of the “Self Support Reserve” for people who are obligated to pay support. The goal of the reserve was to insure “obligors have sufficient income to maintain a minimum standard of living based on 110% of the 2018 federal poverty level for one person ($1,113 net income per month).”5 This clause acts as a cap on the support that an obligor will owe so that they will not pauper themselves to pay the support that is produced by the standard worksheet calculations. It is quite detailed as to the method for determining which obligors will benefit from this provision. The important take away is that, again, the committee found the necessity of providing some relief to those with limited means in relation to their child support obligation. As with several other clauses, this may or may not affect a significant number of people seeking a modification, but it is important to bear in mind.

Changes Involving the Criminal Justice System

Changes that alter the current guidelines for a smaller segment of the population (but in a significant way for that segment) creates a basis for a change in the support awarded. Typically, a modification to child support requires that there be a “significant variance” between the child support obligation ordered and the calculated obligation determined by the guidelines. This usually arises from a change in the amount of income of the parties, or some other cause that necessitates a change to the child support award. Examples of this are if a party had an additional child or if the medical needs of a child changes before it is permissible.6

One of the new provisions in the guidelines creates a new circumstance that allows for a modification. Parties that are serving a term of incarceration in excess of 180 days are now permitted to use that as a basis to seek a modification of their child support obligation. Before, this would have been permissible only if that led to a significant variance in their income that then warranted a change to their support obligation, which may or may not have been substantiated. Though this may only affect a minority of persons in Tennessee seeking a modification of their support, it nonetheless represents a significant difference and creates a major impact on those who fall into this category. 

Another change reflecting the committee’s focus on problems in fulfilling child support obligations based on a party’s criminal history is an addition to the considerations when imputing income as a basis for support. The guidelines provide instruction to a court or tribunal setting support in the circumstance where the income of a party is not readily ascertainable due to lack of records, lack of employment or both. The tribunal has been given a list of factors to consider when determining the imputed income of a party as it “must take into consideration the specific circumstances of the parent to the extent known.”7 Under the changes made by the committee, the tribunal must now also consider the “criminal record and other employment barriers” when setting an imputed income amount.8 As with the previous change, this may only affect a small segment of the population that is ordered to pay support, though a larger segment than those who are incarcerated during the pendency of a modification. However, it reflects the recognition on the part of the committee that many people who have support orders may also face significant difficulty finding gainful employment because of a prior criminal record and that circumstance does not reflect an unwillingness to pay support. Be that as it may, there are no instructions in the section regulating imputed income about the weight that the tribunal must put on this factor, or any other. It remains to be seen how impactful this change will be on those who have difficulty paying support because of lack of lucrative employment because of a prior criminal record.

While none of the changes to the guidelines represented tectonic shifts in the calculation of child support, they all are important in their own right and reflect the ever-evolving nature of support in modern times. Being cognizant of them and their import for your clients will, likewise, be important to your practice. 

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.


NOTES

1. https://www.tn.gov/humanservices/news/2020/5/11/tennessee-revises-child-support-guidelines-to-better-serve-families.html.
2. Tennessee Child Support Guidelines 1240-02-04-.04(12)(a).
3. Tennessee Child Support Guidelines 1240-02-04-.04(12)(b).
4. Tennessee Child Support Guidelines 1240-02-04-.04(12)(d).
5. Tennessee Child Support Guidelines 1240-02-04-.03(4)(b)(2)(i).
6. Tenn. Code Ann. § 36-5-101(g)
7. Tennessee Child Support Guidelines 1240-02-04-.04(2)(iv)(I)(III).
8. Tennessee Child Support Guidelines 1240-02-04-.04(2)(iv)(I)(III)(I).