Navigating Arkansas’s New Child Support Guidelines, Part 3: Obtaining a Deviation Under the New Guidelines

In Part 1, we discussed the basics of the New Guidelines. In Part 2, we went over modifications and the concept of a material change in circumstances, which is necessary to obtain a modification of an existing support order. Part 3 touches on how to get an order that imposes an obligation different from what the Guidelines say should be imposed.

To a substantial extent, under both the Old Guidelines and the New, calculating the amount that a noncustodial parent should pay in child support is simply math. The information that a court needs in order to decide what amount to order is contained in pay stubs, tax returns, and receipts for a limited class of expenses, and the figures that result are plugged into the Support Chart. However, there are often reasons to order an amount either higher or lower than the figure that comes up on the Chart. This ordering of an amount different from what the Support Chart dictates is known as a deviation. If you are a custodial parent who thinks the calculated amount is too low or a noncustodial parent who thinks the calculated amount is too high, you should determine whether a deviation is appropriate.

The Guidelines’ Presumption of Correctness

and Bases for Deviation

Under the Guidelines, a judge entering a child support order is required to calculate the Guidelines. New Guidelines at 4 (“All orders granting or modifying child support shall contain the court’s determination of the payor’s income, payee’s income, recite the amount of support required under these Guidelines, and state whether the court deviated from the presumptive child-support calculation[.]”). Moreover, the amount arrived at through the method discussed in Part 1 is presumed to be what the court should order. See id. (“A deviation from these Guidelines should be the exception rather than the rule.”) (emphasis added).

However, just because support amounts based on the Guidelines are favored does not mean that there are never reasons for a court to order a different amount. The New Guidelines set forth a number of specific grounds for a deviation, including a child’s significant income, a parent’s significant provision of support greater than that which is ordered by the court, educational expenses, “extraordinary time spent with the payor parent”, and the creation of a trust fund for the child. Id.at 4-5. Importantly, this list is not exclusive, as the Guidelines also have a “catch-all” provision stating that a court may deviate based on “any other factors that warrant a deviation.” Id. at 5.

This list seems to represent an at least modest expansion of the grounds for a deviation. Though the New Guidelines do not list as many factors as the Old Guidelines, the catch-all provision in the New Guidelines would seem to accommodate both factors that were included in the Old Guidelines but not listed in the New Guidelines as well as yet unthought of factors that future parties and their counsel might present to judges deciding child support cases.

So, if going through the math discussed in Part 1 results in an obligation that just does not seem to fit the parties’ financial situations, the child’s needs, etc., a request for a deviation, supported by evidence (and good argument), might well provide a preferred amount.

Accordingly, parties and Arkansas Family Law Attorneys dealing with child support issues need to look not only at the mathematical aspects of the New Guidelines, but also at the factors that might justify an award that is different from what the Guidelines alone would require. This includes the specific factors listed in the New Guidelines as well as aspects of the parties’ particular situations that a judge might consider persuasive.

Conclusion

The New Guidelines offer both custodial and noncustodial parents opportunities to see a child support order entered that is more in line with what they think is appropriate. There are lots of issues to consider in these cases, and parties and counsel must be mindful of them when facing a child support issues. That includes understanding how the New Guidelines operate, deciding whether you should seek or resist a modification and, if so, what bases they may have for doing so. Ultimately, all involved should aim to get a child support order that works best for the child and the parents.