S-1048.1 _______________________________________________
SENATE BILL 5566
_______________________________________________
State of Washington 54th Legislature 1995 Regular Session
By Senators Owen, Hargrove, Schow, Oke, Morton and Hochstatter
Read first time 01/26/95. Referred to Committee on Law & Justice.
AN ACT Relating to child support; amending RCW 26.19.001, 26.19.071, 26.19.075, and 26.09.100; reenacting and amending RCW 7.06.020; and adding a new section to chapter 26.19 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 7.06.020 and 1987 c 212 s 101 and 1987 c 202 s 127 are each reenacted and amended to read as follows:
(1) All civil actions, except for appeals from municipal or district courts, which are at issue in the superior court in counties which have authorized arbitration, where the sole relief sought is a money judgment, and where no party asserts a claim in excess of fifteen thousand dollars, or if approved by the superior court of a county by two-thirds or greater vote of the judges thereof, up to thirty-five thousand dollars, exclusive of interest and costs, are subject to mandatory arbitration.
(2) If approved by
majority vote of the superior court judges of a county which has authorized
arbitration, all civil actions which are at issue in the superior court in
which the sole relief sought is the establishment((,)) or
termination ((or modification)) of maintenance or child support payments
or the modification of maintenance are subject to mandatory
arbitration. The arbitrability of any such action shall not be affected by the
amount or number of payments involved.
(3) All civil actions that are at issue in the superior court in which the sole relief sought is the modification of child support payments are subject to binding arbitration except: (a) The action shall be handled by mediation pursuant to RCW 26.09.015 upon the request of one of the parties, or (b) the action shall be handled under normal court motion procedures upon agreement of both parties.
Sec. 2. RCW 26.19.001 and 1988 c 275 s 1 are each amended to read as follows:
The legislature
intends, in establishing a child support schedule, to insure that child support
orders are adequate to meet a child's basic needs and to provide additional
child support commensurate with the parents' income, ((resources, and
standard of living)) while recognizing that all parties to a divorce may
by necessity suffer a reduced standard of living as a result of the divorce.
The legislature also intends that the child support obligation should be
equitably apportioned between the parents.
The legislature finds that these goals will be best achieved by the adoption and use of a state-wide child support schedule. Use of a state-wide schedule will benefit children and their parents by:
(1) Increasing the adequacy of child support orders through the use of economic data as the basis for establishing the child support schedule;
(2) Increasing the equity of child support orders by providing for comparable orders in cases with similar circumstances; and
(3) Reducing the adversarial nature of the proceedings by increasing voluntary settlements as a result of the greater predictability achieved by a uniform state-wide child support schedule.
Sec. 3. RCW 26.19.071 and 1993 c 358 s 4 are each amended to read as follows:
(1) Consideration of all income. All income and resources of each parent's household shall be disclosed and considered by the court when the court determines the child support obligation of each parent. Only the income of the parents of the children whose support is at issue shall be calculated for purposes of calculating the basic support obligation. Income and resources of any other person shall not be included in calculating the basic support obligation.
(2) Verification of income. Tax returns for the preceding two years and current paystubs shall be provided to verify income and deductions. Other sufficient verification shall be required for income and deductions which do not appear on tax returns or paystubs.
(3) Income sources included in gross monthly income. Except as specifically excluded in subsection (4) of this section, monthly gross income shall include income from any source, including:
(a) Salaries;
(b) Wages;
(c) Commissions;
(d) Deferred compensation;
(e) ((Overtime;
(f))) Contract-related benefits;
(((g) Income from
second jobs;
(h))) (f) Dividends;
(((i))) (g)
Interest;
(((j))) (h)
Trust income;
(((k))) (i)
Severance pay;
(((l))) (j)
Annuities;
(((m))) (k)
Capital gains;
(((n))) (l)
Pension retirement benefits;
(((o))) (m)
Workers' compensation;
(((p))) (n)
Unemployment benefits;
(((q))) (o)
Spousal maintenance actually received;
(((r) Bonuses;
(s))) (p) Social security benefits; and
(((t))) (q)
Disability insurance benefits.
(4) Income sources excluded from gross monthly income. The following income and resources shall be disclosed but shall not be included in gross income:
(a) Income of a new spouse or income of other adults in the household;
(b) Overtime, whether mandatory or voluntary;
(c) If the parent has at least one full-time job that requires the parent to work a minimum of forty hours per week, income derived from a second job or additional jobs other than the full-time job;
(d) Child support received from other relationships;
(((c))) (e)
Gifts and prizes;
(((d))) (f)
Aid to families with dependent children;
(((e))) (g)
Supplemental security income;
(((f))) (h)
General assistance; ((and
(g))) (i) Food stamps; and
(j) Bonuses.
Receipt of income and resources from aid to families with dependent children, supplemental security income, general assistance, and food stamps shall not be a reason to deviate from the standard calculation.
(5) Determination of net income. The following expenses shall be disclosed and deducted from gross monthly income to calculate net monthly income:
(a) Federal and state income taxes;
(b) Federal insurance contributions act deductions;
(c) Mandatory pension plan payments;
(d) Mandatory union or professional dues;
(e) State industrial insurance premiums;
(f) Court-ordered spousal maintenance to the extent actually paid;
(g) Up to two thousand
dollars per year in voluntary pension, retirement, or similar payments
((actually made if the contributions were made for the two tax years
preceding the earlier of the (i) tax year in which the parties separated with
intent to live separate and apart or (ii) tax year in which the parties filed
for dissolution)); and
(h) Normal business expenses and self-employment taxes for self-employed persons. Justification shall be required for any business expense deduction about which there is disagreement. Normal business expenses include unreimbursed business expenses appropriate to a party's particular occupation. It is not intended that this section apply only to self-employed persons, but shall also be applied to unreimbursed business expenses incurred by other persons in the normal course of their employment.
Items deducted from gross income under this subsection shall not be a reason to deviate from the standard calculation.
(6) Imputation of
income. The court shall impute income to a parent when the parent is
voluntarily unemployed or voluntarily underemployed. In no event shall
income be imputed to an individual who is qualified for and receiving
unemployment compensation benefits, disability income, or the like. The
court shall determine whether the parent is voluntarily underemployed or
voluntarily unemployed based upon that parent's work history, education,
health, and age, or any other relevant factors. A court shall not impute
income to a parent who is gainfully employed on a full-time basis, unless the
court ((finds)) enters written findings of fact, on the basis of
clear, cogent, and convincing evidence, that the parent is voluntarily
underemployed and ((finds)) enters written findings of fact that
the parent is purposely underemployed to reduce the parent's child support
obligation. Income shall not be imputed for an unemployable parent. Income shall
not be imputed to a parent to the extent the parent is unemployed or
significantly underemployed due to the parent's efforts to comply with
court-ordered reunification efforts under chapter 13.34 RCW or under a
voluntary placement agreement with an agency supervising the child. In the
absence of information to the contrary, a parent's imputed income shall be
based on the median income of year-round full-time workers as derived from the
United States bureau of census, current populations reports, or such
replacement report as published by the bureau of census.
Sec. 4. RCW 26.19.075 and 1993 c 358 s 5 are each amended to read as follows:
(((1))) Reasons
for deviation from the standard calculation include but are not limited to the
following:
(((a))) (1)
Sources of income and tax planning. The court may deviate from the
standard calculation after consideration of the following:
(((i) Income of a
new spouse if the parent who is married to the new spouse is asking for a deviation
based on any other reason. Income of a new spouse is not, by itself, a
sufficient reason for deviation;
(ii) Income of other
adults in the household if the parent who is living with the other adult is
asking for a deviation based on any other reason. Income of the other adults
in the household is not, by itself, a sufficient reason for deviation;
(iii))) (a) Income of a new spouse where the
custodial parent has remarried and the custodial parent's new spouse has a
substantial income, or income of another adult in the household of the
custodial parent, where the custodial parent is involved in an ongoing, stable
relationship with that person and the person has a substantial income.
In addition, before deviating under this subsection (1)(a), the court must find that the noncustodial parent has a modest income, and that there exists a significant disparity in income between the noncustodial parent and the custodial parent's household to the extent that the noncustodial parent is experiencing difficulty maintaining a reasonable lifestyle commensurate with the noncustodial parent's level of income;
(b) Child support actually received from other relationships;
(((iv))) (c)
Gifts;
(((v))) (d)
Prizes;
(((vi))) (e)
Possession of wealth, including but not limited to savings, investments, real
estate holdings and business interests, vehicles, boats, pensions, bank
accounts, insurance plans, or other assets;
(((vii))) (f)
Extraordinary income of a child; or
(((viii))) (g)
Tax planning considerations. A deviation for tax planning may be granted only
if the child would not receive a lesser economic benefit due to the tax
planning.
(((b))) (2)
Nonrecurring income. The court may deviate from the standard
calculation based on a finding that a particular source of income included in
the calculation of the basic support obligation is not a recurring source of
income. Depending on the circumstances, nonrecurring income may include
overtime, contract-related benefits, bonuses, or income from second jobs.
Deviations for nonrecurring income shall be based on a review of the
nonrecurring income received in the previous two calendar years.
(((c))) (3)
Debt and high expenses. The court may deviate from the standard
calculation after consideration of the following expenses:
(((i))) (a)
Extraordinary debt not voluntarily incurred;
(((ii))) (b)
An obligation imposed on one party in a dissolution decree for payment of
substantial debt voluntarily incurred before the parties were separated;
(c) A significant disparity in the living costs of the parents due to conditions beyond their control;
(((iii))) (d)
Special needs of disabled children;
(((iv))) (e)
Special medical, educational, or psychological needs of the children; or
(((v))) (f)
Costs incurred or anticipated to be incurred by the parents in compliance with
court-ordered reunification efforts under chapter 13.34 RCW or under a
voluntary placement agreement with an agency supervising the child.
(((d))) (4)
Residential schedule. ((The court may deviate from the standard
calculation if the child spends a significant amount of time with the parent
who is obligated to make a support transfer payment. The court may not deviate
on that basis if the deviation will result in insufficient funds in the
household receiving the support to meet the basic needs of the child or if the
child is receiving aid to families with dependent children. When determining
the amount of the deviation, the court shall consider evidence concerning the
increased expenses to a parent making support transfer payments resulting from
the significant amount of time spent with that parent and shall consider the
decreased expenses, if any, to the party receiving the support resulting from
the significant amount of time the child spends with the parent making the
support transfer payment)) The court shall grant to the nonresidential
parent a residential credit against the amount of the transfer payment due
under the standard calculation. The amount of the residential credit shall be
the amount of the transfer payment under the standard calculation multiplied by
the fraction whose numerator is the number of overnight visits the children for
whom support is paid are scheduled to have with the nonresidential parent as
set forth in the parenting plan and whose numerator is three hundred
sixty-five. The amount of residential credit shall be divided by twelve and
the monthly transfer payment adjusted accordingly. The court shall not grant a
deviation from the standard calculation on the basis of a residential credit if
the child to whom the obligation of support is owed, or the parent with whom
the child resides, is receiving aid to families with dependent children
benefits.
(((e))) (5)
Children from other relationships. ((The court may deviate from the
standard calculation when either or both of the parents before the court have
children from other relationships to whom the parent owes a duty of support.
(i) The child
support schedule shall be applied to the mother, father, and children of the
family before the court to determine the presumptive amount of support.
(ii) Children from
other relationships shall not be counted in the number of children for purposes
of determining the basic support obligation and the standard calculation.
(iii) When
considering a deviation from the standard calculation for children from other
relationships, the court may consider only other children to whom the parent
owes a duty of support. The court may consider court-ordered payments of child
support for children from other relationships only to the extent that the
support is actually paid.
(iv) When the court
has determined that either or both parents have children from other
relationships, deviations under this section shall be based on consideration of
the total circumstances of both households. All child support obligations
paid, received, and owed for all children shall be disclosed and considered.
(2) All income and
resources of the parties before the court, new spouses, and other adults in the
households shall be disclosed and considered as provided in this section. The
presumptive amount of support shall be determined according to the child
support schedule. Unless specific reasons for deviation are set forth in the written
findings of fact and are supported by the evidence, the court shall order each
parent to pay the amount of support determined by using the standard
calculation.
(3) The court shall
enter findings that specify reasons for any deviation or any denial of a
party's request for any deviation from the standard calculation made by the
court. The court shall not consider reasons for deviation until the court
determines the standard calculation for each parent.
(4) When reasons
exist for deviation, the court shall exercise discretion in considering the
extent to which the factors would affect the support obligation.
(5) Agreement of the
parties is not by itself adequate reason for any deviations from the standard
calculation)) The basic
support obligation for a parent owing a duty of child support who also owes a
duty of support to children from other relationships, whether natural, step, or
adoptive children, shall be computed based upon the total number of children to
whom that parent owes a duty of support. Only those children who are actually
receiving support shall be included in the calculation of the basic support
obligation under this subsection.
(a) In calculating the basic support obligation under this subsection, the court shall first identify the total number of children to whom the obligor parent owes a duty of support. The amount of basic support owed by the obligor parent to the children whose support is being calculated shall be calculated by using the column in the economic table based on the total number of children so identified and the ages of the children whose support obligation is being calculated.
(b) When the basic support obligation is calculated under this subsection, the court shall consider the income of and child support actually received by the other parent of the natural, step, or adoptive children to whom the obligor parent owes a duty of support, but only if that other parent resides in the same household as the obligor parent.
Sec. 5. RCW 26.09.100 and 1991 sp.s. c 28 s 1 are each amended to read as follows:
(1) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity, maintenance, or child support, after considering all relevant factors but without regard to marital misconduct, the court shall order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount determined under chapter 26.19 RCW.
(2) The court may require automatic periodic adjustments or modifications of child support. That portion of any decree that requires periodic adjustments or modifications of child support shall use the provisions in chapter 26.19 RCW as the basis for the adjustment or modification. Provisions in the decree for periodic adjustment or modification shall not conflict with RCW 26.09.170 except that the decree may require periodic adjustments or modifications of support more frequently than the time periods established pursuant to RCW 26.09.170.
(3) Upon motion of a party and without a substantial change of circumstances, the court shall modify the decree to comply with subsection (2) of this section as to installments accruing subsequent to entry of the court's order on the motion for modification.
(4) The adjustment or modification provision may be modified by the court due to economic hardship consistent with the provisions of RCW 26.09.170(4)(a).
(5) A parent obligated to pay child support may file a motion for an accounting of how the support is being spent by the receiving parent. The parent filing the motion must meet the following conditions prior to filing the motion:
(a) The parent filing the motion must be obligated to pay at least fifty percent of the basic child support obligation for both parents;
(b) If support is owed for one child, the parent must be obligated to pay at least three hundred dollars per month in child support; for two children, the parent must be obligated to pay at least five hundred twenty-five dollars per month in child support; for three or more children, the parent must be obligated to pay at least six hundred sixty dollars per month in child support; and
(c) The parent must be current in all child support payments.
(6)(a) The motion for an accounting must be accompanied by an affidavit setting forth facts demonstrating that the parent receiving support is not spending a substantial portion of the child support for the direct or indirect benefit of the child. The motion, affidavit, and notice of hearing shall be served on the parent receiving support. The only issue at the preliminary hearing on the motion shall be whether there is reasonable cause to believe that the support is directly or indirectly benefiting the child.
(b) If the court determines at the preliminary hearing that the motion and affidavit establish reasonable cause to believe that a substantial portion of the support is not directly or indirectly benefiting the child, the court may: (i) Set a show cause hearing on the motion and affidavit; or (ii) order the parents to mediate the issue with a court commissioner, family court commissioner, or other appropriate person. The court's order shall be in writing and shall set forth the facts that establish reasonable cause. The parent receiving support may be required to produce at the show cause hearing such documentation as the court determines is necessary to resolve the issue and that is reasonably available to the parent. The parent receiving support shall not be required to provide documentation for expenditures for more than six months prior to the time of the filing of the motion.
(c) If the court determines at the preliminary hearing that the motion and affidavit do not establish reasonable cause to believe that a substantial portion of the support is not directly or indirectly benefiting the child, the court shall order the parent filing the motion and affidavit to pay costs and statutory attorneys' fees to the parent receiving the support.
The court may award reasonable attorneys' fees to the parent receiving support if the court determines that:
(i) The motion was brought in bad faith, for harassment, or frivolously; or
(ii) The motion was based on material statements of fact that were false.
(7) If at the show cause hearing on the motion and affidavit the parent obligated to pay support demonstrates by a preponderance of the evidence that a substantial portion of the support is not directly or indirectly benefiting the child, the court shall enter an appropriate order directing the parent receiving the support to spend the child support to benefit the child. The court may order the child support payments to be paid to a protective payee for the benefit of the child. The only issue at the hearing on the motion shall be whether the parent receiving support is spending support to directly or indirectly benefit the child.
(8) A motion and affidavit for an accounting of child support expenditures may not be filed more than once every twelve months.
NEW SECTION. Sec. 6. A new section is added to chapter 26.19 RCW to read as follows:
If the combined monthly net income of the parties exceeds five thousand dollars, the court may in its discretion enter an order requiring that a specific portion of the child support payment be placed in an education trust account. The moneys collected in this account shall only be used for the purpose of payment of educational expenses incurred as a result of attendance at an accredited educational institution. The court may not create an education trust account unless it first determines that the diversion of funds to the account will not affect the basic needs of the child and will not affect the child's ability to sustain a reasonable standard of living.
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