hb221_LC_29_1835ERS_hcs

hb221_LC_29_1835ERS_hcs_7.html

05 LC 29 1835ERS

House Bill 221 (COMMITTEE SUBSTITUTE)

By: Representatives Burmeister of the 119th, Watson of the 91st, Mosby of the 90th, Morgan of the 39th, Ehrhart of the 36th, and others

A BILL TO BE ENTITLED
AN ACT

To provide for legislative findings; to amend Titles 5, 7, and 19 of the Official Code of Georgia Annotated, relating respectively to appeal and error, banking and finance, and domestic relations, so as to change provisions relating to the calculation of child support; to provide for direct appeal in certain domestic relations cases; to change the amount of interest on arrearage of child support; to provide guidelines for determining amount of child support to be paid; to provide for factors for apportioning child support obligations; to provide for definitions; to change the form of the final judgment in divorce actions to conform such changes in the determination and computation of child support; to change provisions relating to petitions to modify alimony and child support; to correct cross-references relating to petitions to modify child support orders; to create the Georgia Child Support Commission; to provide for legislative findings and intent; to provide for composition of the commission and the commissiońs powers and duties; to provide for compensation of the members of the commission; to provide for officers of the commission; to provide for a quorum for the transaction of business; to provide for reporting; to provide effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

The General Assembly finds and declares that it is important to assess periodically child support guidelines and determine whether existing guidelines continue to be viable and effective or whether they have failed or ceased to accomplish their original policy objectives. The General Assembly further finds that supporting Georgiás children is vitally important to the citizens of Georgia. Therefore, the General Assembly has determined that it is in the best interests of the state and its citizenry to undertake an evaluation of the child support guidelines on a continuing basis. The General Assembly declares that it is important that all of Georgiás children are provided with adequate financial support whether the childreńs parents are living together or not living together. The General Assembly finds that both parents have a continuing obligation with respect to providing financial and emotional stability for their child or children. It is the hope of the members of the General Assembly that all parents work together to advance the best interest of their children.

SECTION 2.

Title 5 of the Official Code of Georgia Annotated, relating to appeal and error, is amended by striking subsection (a) of Code Section 5-6-34, relating to judgments and rulings deemed directly appealable, and inserting in its place the following:

"(a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35;

(2) All judgments involving applications for discharge in bail trover and contempt cases;

(3) All judgments or orders directing that an accounting be had;

(4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions;

(5) All judgments or orders granting or refusing applications for attachment against fraudulent debtors;

(5.1) Any ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-184;

(6) All judgments or orders granting or refusing to grant mandamus or any other extraordinary remedy, except with respect to temporary restraining orders;

(7) All judgments or orders refusing applications for dissolution of corporations created by the superior courts; and

(8) All judgments or orders sustaining motions to dismiss a caveat to the probate of a will.; and

(9) All final judgments of child support."

SECTION 3.

Title 7 of the Official Code of Georgia Annotated, relating to banking and finance, is amended by striking in its entirety Code Section 7-4-12.1, relating to interest on arrearage of child support, and inserting in lieu thereof the following:

"7-4-12.1.

All awards of child support expressed in monetary amounts shall accrue interest at the rate of 12 7 percent per annum commencing 30 days from the day such award or payment is due. This Code section shall apply to all awards, court orders, decrees, and judgments rendered pursuant to Title 19. It shall not be necessary for the party to whom the child support is due to reduce any such award to judgment in order to recover such interest. The court shall have discretion in applying or waiving past due interest.

SECTION 4.

Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is amended by striking subsection (c) of Code Section 19-5-12, relating to form of judgment and decree in divorce actions, and inserting in lieu thereof a new subsection (c) to read as follows:

"(c) In any case which involves the determination of child support and only in such cases, the form of the judgment shall also include provisions substantially identical to the following: indicating both partieś incomes, the number of children for which support is being provided, the presumptive award calculation, and, if the presumptive award is rebutted, the award amount and the basis for the rebuttal award.

In determining child support, the court finds as follows:

The gross income of the father is __________ dollars monthly.

The gross income of the mother is __________ dollars monthly.

In this case child support is being determined for _________ children.

The applicable percentage of gross income to be considered is:

Number of Children	Percentage Range of Gross Income
1	17 percent to 23 percent
2	23 percent to 28 percent
3	25 percent to 32 percent
4	29 percent to 35 percent
5 or more	31 percent to 37 percent

Thus, ____ percent of __________ (gross income of obligor) equals _________ dollars per month.

The court has considered the existence of special circumstances and has found the following special circumstances marked with an 'X' to be present in this case:

_____	1. Ages of the children.
_____	2. A child́s extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available.
_____	3. Educational costs.
_____	4. Day-care costs.
_____	5. Shared physical custody arrangements, including extended visitation.
_____	6. A partýs other support obligations to another household.
_____	7. Income that should be imputed to a party because of suppression of income.
_____	8. In-kind income for the self-employed, such as reimbursed meals or a company car.
_____	9. Other support of party is providing or will be providing, such as payment of a mortgage.
_____	10. A partýs own extraordinary needs, such as medical expenses.
_____	11. Extreme economic circumstances including but not limited to:
_____	(A) Unusually high debt structure; or
_____	(B) Unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000.00 per annum.
_____	12. Historical spending in the family for children which varies significantly from the percentage table.
_____	13. Considerations of the economic cost-of-living factors of the community of each party, as determined by the trier of fact.
_____	14. In-kind contribution of either parent.
_____	15. The income of the custodial parent.
_____	16. The cost of accident and sickness insurance coverage for dependent children included in the order.
_____	17. Extraordinary travel expenses to exercise visitation or shared physical custody.
_____	18. Any other factor which the trier of fact deems to be required by the ends of justice, as described below: _________________________________________________________.

Having found that no special circumstances exist, or special circumstances numbered ________ exist (delete the phrase which does not apply), the final award of child support which _______________________ shall pay to _______________________ for support of the child or children is __________ dollars per week/month other period (delete those which do not apply and insert as necessary) per child, beginning on the ______ day of ______________, ____, and payable thereafter on the ______ day of ______________ until the child becomes 18 years of age, dies, marries, or otherwise becomes emancipated, except that if the child becomes 18 years of age while enrolled in and attending secondary school on a full-time basis, then such support shall continue until the child completes secondary school, provided that such support shall not be required after the child attains 20 years of age. _______________________ is ordered to provide accident and sickness insurance for the child or children for so long as he or she is obligated by this order to provide support (insert name of party or delete this sentence if the order does not include provision for insurance)."

SECTION 5.

Said title is further amended by striking Code Section 19-6-15, relating to guidelines for calculating child support, and inserting in lieu thereof a new Code Section 19-6-15 to read as follows:

"19-6-15.

(a) As used in this Code section, the term:

(1) 'Adjusted gross income' means the net determination of a parent́s income, calculated by deducting from that parent́s gross income any applicable self-employment taxes being paid by the parent and any preexisting child support order for current child support which is being paid by the parent.

(2) 'Adjusted support obligation' means the basic child support obligation from the child support obligation table, adjusted for parenting time, health insurance, and work related child care expenses.

(3) 'Basic child support obligation' means the amount of support displayed on the child support obligation table which corresponds to the combined adjusted gross income of both parents and the number of children for whom support is being determined. This amount is rebuttably presumed to be the appropriate amount of basic child support to be provided by both parents in the case immediately under consideration, prior to consideration of any adjustments for parenting time or additional expenses.

(4) 'Caretaker' means the person or entity providing care and supervision of a child more than 50 percent of the time. The caretaker may be the child́s custodial parent. The caretaker may be a parent of the child or a nonparent relative of the child who voluntarily or otherwise, pursuant to court order or other legal arrangement, is providing care and supervision of the child. A caretaker may also be a private or public agency providing custodial care and supervision for the child through voluntary placement by the child́s parent, nonparent relative, or other designated caretaker or by court order or other legal arrangement.

(5) 'Child support obligation table' means the chart created by the Georgia Child Support Commission which displays the dollar amount of the basic child support obligation corresponding to various levels of combined adjusted gross income of the childreńs parents and the number of children for whom a child support order is being established or modified. The table shall be used to calculate the basic child support obligation according to the provisions of this Code section. Deviations from the table shall comply with the requirements of this Code section.

(6) 'Combined adjusted gross income' means the amount of adjusted gross income calculated by adding together the adjusted gross incomes of both parents. This amount is then used to determine the basic child support obligation for both parents for the number of children for whom support is being calculated in the case immediately under consideration.

(7) 'Credit worksheet' means the worksheet used for listing information regarding a parent́s preexisting child support order and self-employment tax.

(8) 'Custodial parent' means the parent with whom the child or children resides more than 50 percent of the time. The term also means a nonparent caretaker who has been given physical custody of the child or children. If each parent spends exactly 50 percent of the time with the child or children, then the court shall designate the parent with the lesser child support obligation as the custodial parent and the other parent as the noncustodial parent. If a custodial parent has not been designated, the caretaker with whom the child resides more than 50 percent of the time shall be the custodial parent.

(9) 'Day' or 'days' means that a child spends more than 12 hours of a calendar day with or under the control of a parent and that parent expends a reasonable amount of resources on the child during such time period, such as the cost of a meal or other costs directly related to the care and supervision of the child. Partial days of parenting time that are not consistent with this definition shall not be considered a 'day' under the child support guidelines. A 'day' under the control of a parent includes a day the child is not in the parent́s home, but is under the parent́s control, for example, with the parent́s permission at camp or with friends.

(10) 'Final child support order' means the presumptive child support order adjusted by any deviations ordered by the court.

(11) 'Health insurance' means accident, sickness, health, medical, or dental insurance.

(12) 'Noncustodial parent' means the parent with whom the child resides less than 50 percent of the time.

(13) 'Parenting time adjustment' means an adjustment to the noncustodial parent́s portion of the basic child support obligation upon the noncustodial parent́s parenting time with the child.

(14) 'Percentage of income' for each parent is obtained by dividing each parent́s adjusted gross income by the combined total of both parentś adjusted gross income. The percentage of income is used to determine each parent́s pro rata share of the basic child support obligation and each parent́s share of the amount of additional expense for health insurance and work related child care. The percentage of income is also used to designate the amount of uninsured medical expenses that each parent is financially responsible to pay, absent an order of a court setting a different amount.

(15) 'Preexisting orders' means:

(A) An order in another case that requires a parent to make child support payments for another child or children, which child support the parent is actually paying, as evidenced by documentation including, but not limited to, payment history from a court clerk, Title IV-D agency, as defined in Code Section 19-6-31, the Department of Human Resources computer system, the department́s Internet child support payment history, or canceled checks or other written proof of payments paid directly; and

(B) That the date of filing of the initial order for each such other case is earlier than the date of filing of the initial order in the case immediately before the court, regardless of the age of any child in any of the cases.

(16) 'Presumptive child support order' means the amount of support to be paid for the child or children derived from the parent́s proportional share of the basic child support obligation, adjusted for parenting time, plus the parent́s proportional share of any additional expenses. This amount is rebuttably presumed to be the appropriate child support order.

(17) 'Pro rata' means to the proportion of one parent́s adjusted gross income to both parentś combined adjusted gross income, or to the proportion of one parent́s support obligation to the whole support obligation. A parent́s pro rata share of income is calculated by combining both parentś adjusted gross income and dividing each parent́s separate adjusted gross income by the combined adjusted gross income. A parent́s pro rata share of the basic support obligation is calculated by multiplying the basic child support obligation obtained from the child support obligation table by each parent́s pro rata percentage of the combined adjusted gross income.

(18) 'Split parenting' can only occur in a child support case if there are two or more children of the same parents, where one parent is the custodial parent for at least one child of the parents, and the other parent is custodial parent for at least one other child of the parents. In a split parenting case, each parent is the custodial parent of any child spending more than 50 percent of the time with that parent and is the noncustodial parent of any child spending more than 50 percent of the time with the other parent. A split parenting situation will have two custodial parents and two noncustodial parents, but no child will have more than one custodial parent or noncustodial parent.

(19) 'Standard parenting' means a child support case in which all of the children supported under the order spend more than 50 percent of the time with the same custodial parent. There is only one custodial parent and one noncustodial parent in a standard parenting case.

(20) 'Theoretical support order' means a hypothetical order which allows the court to determine the amount of a child support obligation if an order existed. A theoretical support order is used to determine the amount of credit allowed as a deduction from a parent́s gross income for a parent́s qualified other child or children who are not under a preexisting child support order.

(21) 'Uninsured health care expenses' means the child́s or childreńs uninsured medical expenses including, but not limited to, health insurance copayments, deductibles, and such other costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any acute or chronic medical or health problem or mental health illness, including counseling and other medical or mental health expenses, that are not covered by insurance.

(22) 'Work related child care costs' means expenses for the care of the child or children for whom support is being determined which are due to employment of either parent. In an appropriate case, the court may consider the child care costs associated with a parent́s job search or the training or education of a parent necessary to obtain a job or enhance earning potential, not to exceed a reasonable time as determined by the court, if the parent proves by a preponderance of the evidence that the job search, job training, or education will benefit the child or children being supported. The term shall be projected for the next consecutive 12 months and averaged to obtain a monthly amount.

(23) 'Worksheet' or 'child support worksheet' means the worksheet used to record information necessary to determine and calculate gross income and child support.

(b)(1) The child support guidelines contained in this Code section are a minimum basis for determining child support obligations and shall apply as a rebuttable presumption in all legal proceedings involving the child support obligation of a parent, including, but not limited to, orders entered in criminal and juvenile proceedings, orders entered pursuant to Article 3 of Chapter 11 of this title, the 'Uniform Interstate Family Support Act,' and voluntary support agreements and consent orders approved by the court. The child support guidelines do not apply to orders for prior maintenance for reimbursement of child care costs incurred prior to the date an action for child support is filed or to child support orders entered against stepparents or other persons or agencies secondarily liable for child support. The child support guidelines shall be used when the court enters a temporary or permanent child support order in a contested or noncontested hearing. The rebuttable presumption award provided by these child support guidelines may be increased according to the best interest of the child for whom support is being considered, the circumstances of the parties, the grounds for deviation set forth in subsection (i) of this Code section, and to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.

(2) The provisions of this Code section shall not apply with respect to any divorce case in which there are no minor children, and in a divorce case in which there are no minor children the requirements of this Code section for findings of fact and inclusion of findings in the verdict or decree shall not apply except to the limited extent authorized by subsection (d) of this Code section. In the final verdict judgment or decree in a divorce case in which there are minor children, or in other cases which are governed by the provisions of this Code section, the trier of fact court shall;

(A) Specify specify in what amount and from which party the minor children are entitled to permanent support. The final verdict or decree shall further specify as determined by use of the worksheets;

(B) Specify as required by Code Section 19-5-12 in what manner, how often, to whom, and until when the support shall be paid;. The final verdict or decree shall further include

(D) Determine whether health insurance for the child or children involved is reasonably available at a reasonable cost to either parent. If the insurance policy is reasonably available at a reasonable cost to the parent, then the court may order that the child or children be covered under such insurance; and

(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable, the written findings of fact shall further set forth:

(i) The reasons the court deviated from the presumptive amount of child support;

(ii) The amount of child support that would have been required under the child support guidelines if the presumptive amount had not been rebutted; and

(iii) A finding that states how application of the child support guidelines would be unjust or inappropriate in the case immediately under consideration considering the relative ability of each parent to provide support and how the best interests of the child or children who are subject to the support award determination are served by deviation from the presumptive guideline amount.

and the presence or absence of special circumstances in accordance with subsection (c) of this Code section. The trier of fact must also determine whether the accident and sickness insurance for the child or the children involved is reasonably available at reasonable costs through employment related or other group health insurance policies to an obligor. For purposes of this Code section, accident and sickness coverage shall be deemed available if the obligor has access to any policy of insurance authorized under Title 33 through an employer or other group health insurance plan. If the accident and sickness insurance is deemed available at reasonable cost, the court shall order the obligor to obtain the coverage; provided, however, if the obligee has accident and sickness insurance for the child or children reasonably available at reasonable costs through employment related or other group health insurance policies, then the court may order that the child or children be covered under such insurance and the obligor contribute as part of the child support order such part of the cost of providing such insurance or such part of any medical expenses incurred on behalf of the child or children not covered by such insurance as the court may deem equitable or appropriate. If currently unavailable or unreasonable in cost, the court shall order the obligor to obtain coverage when it becomes available at a reasonable cost, unless such insurance is provided by the obligee as provided in this subsection.

(3) When support is awarded, the party who is required to pay the support shall not be liable to third persons for necessaries furnished to the child or children embraced in the verdict judgment or decree. In any contested case, the parties shall submit to the court their proposed findings regarding the gross income of the father and the mother worksheets and the presence or absence of special circumstances other factors to be considered by the court pursuant to the provisions of this Code section. In any case in which child support is the gross incomes of the father and the mother are determined by a jury, the court shall charge the provisions of this Code section applicable to the determination of gross income and the jury shall be required to return a special interrogatory similar to the form of the order contained in Code Section 19-5-12 regarding the gross income of the father and the mother and the presence or absence of special circumstances. Based upon the jurýs verdict as to gross income, the court shall determine the child support obligation in accordance with the provisions of this Code section. Furthermore, nothing

(4) Nothing contained within this Code section shall prevent the parties from entering into an enforceable agreement to the contrary which may be made the order of the court pursuant to the review by the court of the adequacy of the child support amounts negotiated by the parties, including the provision for medical expenses and health insurance; provided, however, that if the agreement negotiated by the parties does not comply with the provisions contained in this Code section; provided, however, any such agreement of the parties shall include a written statement regarding the gross income of the father and the mother and the presence or absence of special circumstances in accordance with subsection (c) of this Code section and does not contain findings of fact as required to support a deviation, the court shall reject such agreement. To assist in this determination by the court, the parties shall provide all child support worksheets utilized by the parties to determine the child support amounts proposed in the agreement.

(b) The child support award shall be computed as provided in this subsection:

(1) Computation of child support shall be based upon gross income;

(2) For the purpose of determining the obligoŕs child support obligation, gross income shall include 100 percent of wage and salary income and other compensation for personal services, interest, dividends, net rental income, self-employment income, and all other income, except need-based public assistance;

(3) The earning capacity of an asset of a party available for child support may be used in determining gross income. The reasonable earning potential of an asset may be determined by multiplying its equity by a reasonable rate of interest. The amount generated by that calculation should be added to the obligoŕs gross monthly income;

(4) Allowable expenses deducted to calculate self-employment income that personally benefit the obligor, or economic in-kind benefits received by an employed obligor, may be included in calculating the obligoŕs gross monthly income; and

(5) The amount of the obligoŕs child support obligation shall be determined by multiplying the obligoŕs gross income per pay period by a percentage based on the number of children for whom child support is being determined. The applicable percentages of gross income to be considered by the trier of fact are:

Number of Children	Percentage Range of Gross Income
1	17 percent to 23 percent
2	23 percent to 28 percent
3	25 percent to 32 percent
4	29 percent to 35 percent
5 or more	31 percent to 37 percent

Application of these guidelines shall create a rebuttable presumption that the amount of the support awarded is the correct amount of support to be awarded. A written finding or specific finding on the record for the award of child support that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case. Findings that rebut said presumption must state the amount of support that would have been required under the guidelines and include justification of why the order varies from the guidelines.

(c) In the event of a hearing or trial on the issue of child support, the These guidelines enumerated in this Code section are intended by the General Assembly to be guidelines only and any court so applying these guidelines shall not abrogate its responsibility in making the final determination of child support based on the evidence presented to it at the time of the hearing or trial.

(c) The trier of fact shall vary the final award of child support, up or down, from the range enumerated in paragraph (5) of subsection (b) of this Code section upon a written finding that the presence of one or more of the following special circumstances makes the presumptive amount of support either excessive or inadequate:

(1) Ages of the children;

(2) A child́s extraordinary medical costs or needs in addition to accident and sickness insurance, provided that all such costs or needs shall be considered if no insurance is available;

(3) Educational costs;

(4) Day-care costs;

(5) Shared physical custody arrangements, including extended visitation;

(6) A partýs other support obligations to another household;

(7) Income that should be imputed to a party because of suppression of income;

(8) In-kind income for the self-employed, such as reimbursed meals or a company car;

(9) Other support a party is providing or will be providing, such as payment of a mortgage;

(10) A partýs own extraordinary needs, such as medical expenses;

(11) Extreme economic circumstances including but not limited to:

(A) Unusually high debt structure; or

(B) Unusually high income of either party or both parties, which shall be construed as individual gross income of over $75,000.00 per annum;

(12) Historical spending in the family for children which varies significantly from the percentage table;

(13) Considerations of the economic cost-of-living factors of the community of each party, as determined by the trier of fact;

(14) In-kind contribution of either parent;

(15) The income of the custodial parent;

(16) The cost of accident and sickness insurance coverage for dependent children included in the order;

(17) Extraordinary travel expenses to exercise visitation or shared physical custody; and

(18) Any other factor which the trier of fact deems to be required by the ends of justice.

(d) The guidelines shall be reviewed by a commission appointed by the Governor to ensure that their application results in the determination of appropriate child support award amounts. The commission will complete its review and submit its report within four years following July 1, 1989, and shall continue such reviews every four years thereafter. Nothing contained in such report shall be considered to authorize or require a change in the guidelines without action by the General Assembly having the force and effect of law.

(e) The duty to provide support for a minor child shall continue until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs; provided, however, that, in any temporary or final order for child support with respect to any proceeding for divorce, separate maintenance, legitimacy, or paternity entered on or after July 1, 1992, the trier of fact court, in the exercise of sound discretion, may direct either or both parents to provide financial assistance to a child who has not previously married or become emancipated, who is enrolled in and attending a secondary school, and who has attained the age of majority before completing his or her secondary school education, provided that such financial assistance shall not be required after a child attains 20 years of age. The provisions for support provided in this subsection may be enforced by either parent or the child for whose benefit the support is ordered.

(f) The provisions of subsection (e) of this Code section shall be applicable only to a temporary order or final decree for divorce, separate maintenance, legitimation, or paternity entered on or after July 1, 1992, and the same shall be applicable to an action for modification of a decree entered in such an action entered on or after July 1, 1992, only upon a showing of a significant change of material circumstances

(e) Gross income.

(1)(A) Gross income of each parent shall be determined in the process of setting the presumptive child support order and shall include all income from any source, before deductions for taxes and other deductions such as preexisting child support orders and credits for other qualified children, whether earned or unearned, and includes, but is not limited to, the following:

(i) Salaries;

(ii) Commissions, fees, and tips;

(iii) Income from self-employment;

(iv) Bonuses;

(v) Overtime payments;

(vi) Severance pay;

(vii) Recurring income from pensions or retirement plans including, but not limited to, Veteranś Administration, Railroad Retirement Board, Keoughs, and individual retirement accounts;

(viii) Interest income;

(ix) Dividend income;

(x) Trust income;

(xi) Income from annuities;

(xii) Capital gains;

(xiii) Disability or retirement benefits that are received from the Social Security Administration pursuant to Title XI of the federal Social Security Act;

(xiv) Workerś compensation benefits, whether temporary or permanent;

(xv) Unemployment insurance benefits;

(xvi) Judgments recovered for personal injuries and awards from other civil actions;

(xvii) Gifts that consist of cash or other liquid instruments, or which can be converted to cash;

(xviii) Prizes;

(xix) Lottery winnings;

(xx) Alimony or maintenance received from persons other than parties to the proceeding before the court; and

(xxi) Assets which are used for the support of the family.

(B) Excluded from gross income are the following:

(i) Child support payments received by either parent for the benefit of a child or children of another relationship; and

(ii) Benefits received from means-tested public assistance programs such as, but not limited to:

(I) PeachCare for Kids Program, Temporary Assistance for Needy Families, or similar programs in other states or territories under Title IV-A of the federal Social Security Act;

(II) Food stamps or the value of food assistance provided by way of electronic benefits transfer procedures by the Department of Human Resources;

(III) Supplemental security income received under Title XVI of the federal Social Security Act;

(IV) Benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers; and

(V) Low Income Heating and Energy Assistance Program payments.

(2)(A) When establishing an initial order of child support, if a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years, and the court has no other reliable evidence of the parent́s income or income potential, gross income for the current year shall be determined by imputing gross income based on a 40 hour workweek at minimum wage.

(B) When cases with established orders are reviewed for modification and a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to support or ability to support in prior years, and the court has no other reliable evidence of that parent́s income or income potential, the court may enter an order to increase the child support obligation of the parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of that parent́s pro rata share of the basic child support obligation for each year since the support order was entered or last modified.

(C) In either circumstance in subparagraph (A) or (B) of this paragraph, either parent may later provide within 90 days, upon motion to the court, the reliable evidence necessary to determine the appropriate amount of support based upon reliable evidence. The court may increase or reduce the amount of current support from the date of filing of either parent́s initial filing or motion to modify child support, but arrearages or retroactive amounts entered in an order based upon imputed income shall not be forgiven. When a parent, whose income has been imputed under subparagraph (A) or (B) of this paragraph, provides reliable evidence to support a modification of the amount of income imputed for that parent, the parent is not required to demonstrate the existence of a significant variance otherwise required for modification of an order pursuant to subsection (l) of this Code section.

(3)(A) Income from self-employment includes income from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods or services, and rental properties, less ordinary and reasonable expenses necessary to produce such income. Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership, limited liability company, or closely held corporation is defined as gross receipts minus ordinary and necessary expenses required for self-employment or business operations. Ordinary and reasonable expenses of self-employment or business operations necessary to produce income do not include:

(i) Excessive promotional, travel, vehicle, or personal living expenses, depreciation on equipment, or costs of operation of home offices; or

(ii) Amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income.

In general, income and expenses from self-employment or operation of a business should be carefully reviewed by the factfinder and the court to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.

(B)(i) An additional deduction of 6.2 percent of FICA and 1.45 percent of medicare, or in any amount subsequently set by federal law as FICA and medicare tax, shall be deducted from a parent́s gross income earned from self-employment, up to the amounts allowed under federal law.

(ii) Any self-employment tax paid shall be deducted from gross income as part of the calculation of a parent́s adjusted gross income.

(4)(A) Fringe benefits for inclusion as income or 'in kind' remuneration received by a parent in the course of employment, or operation of a trade or business, shall be counted as income if they significantly reduce personal living expenses.

(B) Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board.

(C) Basic allowance for housing, basic allowance for subsistence, and variable housing allowances for members of the armed services are considered income for the purposes of determining child support.

(D) Fringe benefits do not include employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including but not limited to employer paid portions of health insurance premiums or employer contributions to a retirement or pension plan.

(5)(A) Benefits received under Title XI of the federal Social Security Act by a child on the obligoŕs account shall be counted as child support payments and shall be applied against the child support obligation ordered to be paid by the obligor for the child.

(B) If after calculating the obligoŕs gross income as defined in this subsection, including the countable Social Security benefits in division (1)(A)(xiii) of this subsection, and after calculating the amount of the child support obligation using the child support worksheet, the amount of the child support obligation is greater than the Social Security benefits paid on behalf of the child on the obligoŕs account, the obligor shall be required to pay the amount exceeding the Social Security benefit as part of the child support obligation in the case.

(C)(i) If after calculating the obligoŕs gross income as defined in this subsection, including the countable Social Security benefits in division (1)(A)(xiii) of this subsection, and after calculating the amount of the child support obligation using the child support worksheet, the amount of the child support obligation is equal to or less than the Social Security benefits paid to the caretaker on behalf of the child on the obligoŕs account, the child support obligation of that parent is met and no further child support obligation shall be paid.

(ii) Any benefit amounts under Title XI of the federal Social Security Act as determined by the Social Security Administration sent to the caretaker by the Social Security Administration for the child́s benefit which are greater than the child support obligation ordered by the court shall be retained by the caretaker for the child́s benefit and shall not be used as a reason for decreasing the child support order or reducing arrearages.

(D) The court shall make a written finding of fact in the child support order regarding the use of the Social Security benefits in the calculation of the child support obligation.

(6) Variable income such as commissions, bonuses, overtime pay, and dividends shall be averaged by the factfinder over a reasonable period of time consistent with the circumstances of the case and added to a parent́s fixed salary or wages to determine gross income. When income is received on an irregular, nonrecurring or one-time basis, the court may, but is not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that parent.

(7)(A) A determination of whether a parent is willfully or voluntarily unemployed or underemployed shall ascertain the reasons for the parent́s occupational choices and assess the reasonableness of these choices in light of the parent́s obligation to support his or her child or children and to determine whether such choices benefit the child or children. A determination of willful and voluntary unemployment or underemployment is not limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support. A determination of willful and voluntary unemployment or underemployment can be based on any intentional choice or act that affects a parent́s income.

(B) Factors for the court to consider when determining willful and voluntary unemployment or underemployment include, but are not limited to:

(i) The parent́s past and present employment;

(ii) The parent́s education and training;

(iii) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent́s obligation to support his or her child or children and, to this end, whether the training or education may ultimately benefit the child or children in the case immediately under consideration by increasing the parent́s level of support for that child or those children in the future;

(iv) A parent́s ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent; and

(v) The parent́s role as caretaker of a handicapped or seriously ill child of that parent, or any other handicapped or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent́s ability to work outside the home, and the need of that parent to continue in that role in the future.

(C) When considering the income potential of a parent whose work experience is limited due to the caretaker role of that parent, the court shall consider the following factors:

(i) Whether the parent acted in the role of full-time caretaker immediately prior to separation by the married parties or prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker;

(ii) The length of time the parent staying at home has remained out of the workforce for this purpose;

(iii) The parent́s education, training, and ability to work; and

(iv) Whether the parent is caring for a child or children who are four years of age or younger.

(D) If the court determines that a parent is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by educational level or previous work experience. In the absence of any other reliable evidence, income may be imputed to the parent pursuant to a determination that gross income for the current year is based on a 40 hour workweek at minimum wage.

(E) A determination of willful and voluntary unemployment or underemployment shall not be made when an individual is activated from the National Guard or other armed forces unit or enlists or is drafted for full-time service in the armed forces of the United States.

(8)(A) An adjustment to the parent́s gross income shall be made on the child support worksheet for current preexisting orders actually being paid under an order of support for a period of not less than 12 consecutive months immediately prior to the date of the hearing before the court to set, modify, or enforce child support.

(B) In calculating the adjustment for preexisting orders, the court shall include only those preexisting orders where the date of entry of the initial support order precedes the date of entry of the initial order in the case immediately under consideration.

(C) The priority for preexisting orders is determined by the date of the initial order in each case. Subsequent modifications of the initial support order shall not affect the priority position established by the date of the initial order.

(D) Adjustments are allowed for current preexisting support only to the extent that the payments are actually being paid as evidenced by documentation including, but not limited to, payment history from a court clerk, a Title IV-D agency, as defined in Code Section 19-6-31, the Department of Human Resources computer system, the department́s Internet child support payment history, or canceled checks or other written proof of payments paid directly. The maximum credit allowed for a preexisting order is an average of the amount of current support actually paid under the preexisting order over the past 12 months prior to the hearing date.

(E) All preexisting orders shall be entered on the credit worksheet for the purpose of calculating the total amount of the credit to be included on the child support worksheet, but the preexisting orders shall not be used on the credit worksheet as a deduction against gross income for the purpose of calculating a theoretical child support order.

(F) Payments being made by a parent on any arrearages shall not be considered payments on preexisting or subsequent orders and shall not be used as a basis for reducing gross income.

(9)(A) In addition to the adjustments to gross income for self-employment tax provided in subparagraph (B) of paragraph (3) of this subsection and for preexisting orders provided in paragraph (8) of this subsection, credits for either parent́s other child or children qualified under this paragraph may be considered by the court for the purpose of reducing the parent́s gross income or as a reason for deviation. Credits may be considered for a qualified child:

(i) For whom the parent is legally responsible and in whose home that child resides;

(ii) The parent is actually supporting;

(iii) Who is not subject to a preexisting order for child support; and

(iv) Who is not before the court to set, modify, or enforce support in the case immediately under consideration.

Stepchildren and other minors in the home that the parent has no legal obligation to support shall not be considered in the calculation of this credit. To consider a parent́s qualified other child or children for credit, a parent must present documentary evidence of the parent-child relationship to the court.

(B) Credits against income pursuant to this paragraph may be considered in such circumstances in which the failure to consider such child or children would cause substantial hardship to the parent. Use of this credit is appropriate when a child support order is entered. Credits may also be appropriate when a child support order is modified to rebut a claim for increased child support brought by the custodial parent. If the court, in its discretion, decides to apply this credit, a parent́s current financial responsibility for his or her natural or adopted child or children who currently reside with the parent, other than a child or children for whom child support is being determined in the pending action, can be no greater than an amount (i) equal to the basic child support obligation for that child or those children based on the parent́s income if the other parent of such child or children does not live with the parent and child or children or (ii) one-half of the basic child support obligation for such child or children based on the combined incomes of both of the parents of such child or children if the other parent of such child or children lives with the parent and the child or children.

(C) Credits against income for another qualified child or other qualified children shall be calculated and recorded on the credit worksheet and then entered on the child support worksheet for the purpose of reducing the parent́s gross income on the child support worksheet. However, except for self-employment taxes paid, no other amounts shall be subtracted from the parent́s gross income on the credit worksheet when calculating a theoretical support order under this paragraph.

(10) Actual payments of alimony should not be considered as a deduction from gross income but may be considered as a factor to vary from the final presumptive child support order. If the court considers the actual payment of alimony, the court shall make a written finding of such consideration as a basis for deviation from the final presumptive child support order.

(11) In multiple family situations, the adjustments to a parent́s gross income shall be calculated in the following order:

(A) Preexisting orders according to the date of the initial order; and

(B) After applying the deductions on the child support worksheet for preexisting orders, if any, in subparagraph (E) of paragraph (8) of this subsection, any credit for a parent́s qualified other child or children may be considered using the procedure set forth in subparagraph (A) of this paragraph.

(f) The basic child support obligation is determined based upon the parent́s gross income and by using the corresponding child support obligation table as established and maintained by the Georgia Child Support Commission. If the combined monthly adjusted gross income falls between the amounts shown in the table, then the child support obligation shall be based on the income bracket mostly closely matched to the combined monthly adjusted gross income. The number of children column on the table corresponds to children for whom parents share joint legal responsibility and for whom support is being sought.

(g)(1) The child support obligation table does not include the cost of the child́s work related child care costs or the cost of health insurance premiums or uninsured health expenses. The additional expenses for the child́s health insurance premium and work related child care shall be included in the calculations to determine child support.

(2)(A) Work related child care expenses necessary for the parent́s employment, education, or vocational training that are determined by the court to be appropriate, and that are appropriate to the parentś financial abilities and to the lifestyle of the child or children if the parents and child or children were living together, shall be averaged for a monthly amount and entered on the child support worksheet in the column of the parent initially paying the expense. Work related child care expenses of a nonparent caretaker shall be considered when determining the amount of this expense.

(B) If a child care subsidy is being provided pursuant to a means-tested public assistance program, only the amount of the child care expense actually paid by either parent shall be included in the calculation.

(C) If either parent is the provider of child care services to the child or children for whom support is being determined, the value of those services shall not be added to the basic child support obligation when calculating the support award.

(D) If child care is provided by a family member, other unpaid person, or provided by a parent́s employer without charge to the parent, then the value of these services shall not be added to the basic child support obligation.

(3)(A) The amount that is, or will be, paid by a parent for health insurance for the child or children for whom support is being determined shall be added to the basic child support obligation and prorated between the parents based upon their respective incomes. Payments made by a parent́s employer for health insurance and not deducted from the parent́s wages are not included. When a child or children for whom support is being determined are covered by a family policy, only the health insurance premium actually attributable to that child or those children is added. If this amount is not available or cannot be verified, the total cost of the premium shall be divided by the total number of persons covered by the policy and then multiplied by the number of covered children for whom support is being determined.

(B) The amount of the cost for the child́s or childreńs health insurance premium and work related child care expenses shall be determined and added to the basic child support obligation as 'additional expenses' whether paid directly by the parent or through a payroll deduction.

(C) The total amount of the cost for the child́s or childreńs health insurance premium and work related child care shall be divided between the parents pro rata to determine the total presumptive child support order and shall be included in the worksheet and written order of the court together with the amount of the basic child support obligation.

(4)(A) If health insurance that provides for the health care needs of the child or children can be obtained by a parent at reasonable cost, then an amount to cover the cost of the premium shall be added to the basic child support obligation. A health insurance premium paid by a nonparent caretaker shall be included when determining the amount of this expense. In determining the amount to be added to the order for this cost, only the amount of the insurance cost attributable to the child or children who are the subject of the support order shall be included.

(B) If coverage is applicable to other persons and the amount of the health insurance premium attributable to the child or children who are the subject of the current action for support is not verifiable, the total cost to the parent paying the premium shall be prorated by the number of persons covered so that only the cost attributable to the child or children who are the subject of the order under consideration is included. This amount shall be determined by dividing the total amount of the insurance premium by the number of persons covered by the insurance policy and taking the resulting amount and multiplying it by the number of children covered by the insurance policy. This monthly cost shall be entered on the child support worksheet in the column of the parent paying the premium.

(C) Eligibility for or enrollment of the child or children in Medicaid shall not satisfy the requirement that the child support order provide for the child́s or childreńs health care needs.

(h)(1) The court shall determine each parent́s pro rata share of the additional expenses by multiplying the percentage of income of each parent by the combined total additional expenses.

(2)(A) In standard parenting situations, the adjusted support obligation is the parent́s share of the basic child support obligation plus the parent́s share of any additional expenses for the child́s or childreńs health insurance premium and work related child care.

(B) In split parenting situations, the adjusted support obliga