Recently, the Wisconsin Department of Children and Families (DCF), the responsible agency to administer the Child Support Program under Wis. Stat. section 59.53(5), proposed amendments to the DCF Chapter 150.
The proposed changes cover many topics, including imputing income, reimbursement of birthing costs, and medical support.
For practitioners, it is the changes to variable expenses for shared time and the high income payer guidelines that are addressed here.
Changes in Variable Expenses for Shared Time
DCF held a public hearing on the proposed changes on Dec. 20, 2016. At the public hearing, several organizations presented concerns over the changes, including the Wisconsin Child Support Enforcement Association (WCDEA). The State Bar of Wisconsin Family Law Section did not testify.
Under DCF section 150.04(2)(b)6, each parent who has placement for at least 25 percent of the child’s placement time assumes the child’s variable costs in proportion to the time the parent has the child. Variable costs include child care, tuition, special needs, and other costs such as sports and music programs. Presently, the variable costs are based on the parent’s percentage of placement, and the court may, at its own discretion, consider the parties’ incomes in making its orders on variable expenses.
The proposed changes require parents to provide courts with detailed lists of the variable costs when ordered. Any changes to these costs would not be a substantial change in circumstance that would justify modifying the variable cost order – even if the changes are substantial.1
WCDEA argues this is unrealistic. The organization’s position paper imagines a new parent’s challenge of attempting to estimate costs for the child’s next 18 years without possibly knowing all of the factors that may change during that time.
Further, the proposed changes prohibit adding variable costs into child support orders. Under the current rules, the court has the ability to determine the variable expenses for the parents. Arguably, the current method results in less conflict between the parents and less litigation, which in turn allows the agency to focus its limited resources on enforcing the orders.
However, in practice this is not always the case. Supporters of the proposed rule argue that the change will encourage efficiency, because the variable costs will be mandated at the time when the time support is ordered. They argue this will encourage a more streamline process and allow the child support agency to focus on enforcing the payments.
Changes for High Income Payers
The second major shift imposed by these proposed changes is the change for high income payers.2
The revisions to DCF 150 propose that parents who earn between $300,000 and $500,000 per year are required to pay a much lower percentage of their income for child support than parents who earn substantially less. Further, parents who earn more than $500,000 annually would be exempt from the percentage standard for income that is above $500,000.
WCDEA argues that if the goal of the percentage standard is to replicate the lifestyle the child would have experienced if the child lived with both parents, then allowing those who have a higher income to pay a lower percentage than those with a lower annual income is contrary to the intent of the standard. Affluent parents under these proposed changes could contribute as little as one-third of what middle or working class parents pay.
However, supporters of the proposed changes to the rule argue that the proposed rule simply codifies the current practice on the ground. Under the current rules, the guidelines are flexible to allow a deviation from the guidelines if such an application would be unfair to either parent or to the child.
Some argue that, for affluent parents, there is no reason to apply the guidelines above a certain income, because children’s expenses would not reasonably exceed that amount. Arguably, it’s maintenance disguised as child support. But the current rules do not indicate what that income level is.
The proposed rule establishes the income level and allows for more predictability for the parents, but would still allow for a court to have discretion. Proponents of the new rule argue that higher predictability means more settlements and less litigation, which is better for the children overall.
The Current Status and Process toward Approval
Following the December 2016 public hearing, DCF reviewed the proposed rules, considering the public hearing testimony. However, no revisions to the rules, if any, have been shared publically. The proposed rules are currently being reviewed by Gov. Scott Walker.
Following the governor’s approval, the revised guidelines will be sent to legislative committees, where further public hearings may occur within 30 to 60 days at the committee’s discretion. No further public hearing is required.
Once approved, the rules will be sent to the Joint Committee on Review of Administrative Rules (JCRAR). Again, JCRAR has 30 to 60 days to schedule a public hearing at their discretion. Ultimately, the Legislative Reference Bureau (LRB) will have 30 days to review the new rules prior to publication.
The proposed rules, if implemented, will impact how child support functions in Wisconsin. Stay tuned to see if the proposed changes will be approved and subsequently published in the Wisconsin Administrative Register.
1 See proposed rules DCF §§ 150.04(2)(b)(6)-(7).
2 See proposed rules DCF §§ 150.04(5)(a)-(f).