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The Professor Nedley Series

"Hardship Deductions for Kids"

April 1, 2007

        There is no question in any one's mind that kids are a hardship, a genuine hardship, but that is not how the Family Code defines a "hardship".  It comes as a surprise to many lawyers when they request a hardship deduction while the judge is calculating child support (they really don't have much to do with a SS calculation) and are turned down cold in that request.  There are generally two reasons for the rejection of the request - the law and the facts.

First the Law:  The blackletter law is found in §4070 where it says that if a parent is experiencing extreme financial hardship due to justifiable expenses resulting from either (1) extraordinary healthcare expenses, (2) uninsured catastrophic losses or (3) the basic living costs of a natural or adopted child.  This must be a child for whom the payor has a legal obligation to support and who lives with the payor.  This does not define a stepchild.

IF the child qualifies the court MAY allow these deductions from the payors gross income, as necessary, in order to accommodate these particular basic living expneses.  Note: The deductions allowable for a hardshipchild cannot exceed the guideline support being paid in the case under consideration.  The support calculator will do this calculation and if you give a full hardhip the computer will basically allocate the the total support and deductions among all children including the hardship child. As an example, if there was one hardship child and three child of the requesting parent, the calculator would calculate CS for four children and the posted result would be for the three children being requested and there will have been a reduction from the payors gross income in the same amount as the support for one child..

Next the Facts:  §4072 requires that if the judge, in their wondrous discretion, permits a hardship deduction from income, then the judge must state the supporting reasons (that means facts) on the record or in writing AND document the amount and the underlying facts and circumstances.  The court muost also state the DURATION of the hardship deduction.  This actually makes sense where there is an older pre-existing child who will soon turn 18, the support needs to be recalculated for the remaining children.  It's not the same as when a supported child turns 18 and there is an automatic reduction in the total if it's done right.  The judge could handle this by building in a stepup when the harship child turns 18. NOTE that if no one has pled the facts supporting a hardship, it is most difficult for the judge to make the findings that are required.

The Basics:  §4055 is the basic child support guideline formula which uses the net incomes of the parties to calculate child support.  We start with gross incomes of the parties and deduct cerain specified allowable expenses to arrive at the net income acceptable under the guideline rules.

    Under §4059(e) amounts actually being paid for other children pursuant to existing court orders are deductible as are non court-ordered payments that are actually being paid, if there is a legal duty to support them and the child is not living with the payor.  These payments for non-resident children are governed by different code sections and do not fall under the hardship definition.

    §4059(g) is the section that permits the deductions from income for hardships as defined in §§4070-4073.  §4053(g) makes it clear that the deductgion is from the gross income of the poaqyor rather than a deductions from the support order.  In applying the hardship deduction it should be the intent of the cojrt to provide equity between competing child support orders or interests.

The Different Scenarios: Each with different levels of societal fairness.

        Payor has existing children from relationship #1.  He has now fathered three new children from relationship #2.  Mother #1 files a motion for more child support, Payor asserts his new children as hardships.  This seems unfair to the first batch, because he had the obligation to support them before he went out and continued to cast his seed upon the land.  Do you give the hardship if M#2 is working?  What if it's nominal work?  What if he's making darn good money?

        Assume that the Payor has the actual custody of his kids from the first relationship and Mother #2 is seeking CS.  He wishes to assert the children from Relationship #1 as hardships.  Is that doable?  What if he receives CS from M#1?  What if he gets no help from M#1? What if #2  makes a lot of money or the best revenge of all - she married very well?

        What if the mother seeking support has two kids with father and three by another relationship (or relationships) for which she has not sought CS and says its impossible because the guy doesn't work or works under the table?  She asks for hardships?

SUMMARY