Requirements for Deviating from the Child Support Formula
Michigan law mandates that child support be set pursuant to the amount determined by the Michigan Child Support Formula unless there are compelling circumstances that support a deviation from that amount. Pursuant to MCL 552.605(2), the Court can deviate from the guidelines only if it “determines from the facts of the case that application of the child support formula would be unjust or inappropriate.”
Further, according to the statute, certain additional requirements must be met in writing. Specifically, MCL 552.605(2) dictates that any award of child support granting a deviation must include the following, in writing or on the record:
(a) The child support amount determined by application of the child support formula;
(b) How the child support order deviates from the child support formula;
(c) The value of property or other support awarded instead of the payment of child support, if applicable; and
(d) The reasons why application of the child support formula would be unjust or inappropriate in the case.
Examples of Potential Deviations from the Child Support Formula
Examples of some of the accepted reasons or factors which may support a deviation from the guidelines are listed in the Michigan Child Support Formula Manual, section 1.04(E). You should understand that these factors are listed as examples only. Just because one or more of these factors exists does not mean you are automatically entitled to such an exception. Rather, the Court will look at the exception(s) in light of all of the circumstances. These factors include the following:
(1) The child has special needs;
(2) The child has extraordinary educational expenses;
(3) A parent is a minor;
(4) The child’s residence income is below the threshold to qualify for public assistance, and at least one parent has sufficient income to pay additional support that will raise the child’s standard of living above the public assistance threshold;
(5) A parent has a reduction in the income available to support a child due to extraordinary levels of jointly accumulated debt;
(6) The court awards property in lieu of support for the benefit of the child;
(7) A parent is incarcerated with minimal or no income or assets;
(8) A parent has incurred, or is likely to incur, extraordinary medical expenses for either that parent or a dependent;
(9) A parent earns an income of a magnitude not fully taken into consideration by the formula;
(10) A parent receives bonus income in varying amounts or at irregular intervals;
(11) Someone other than the parent can supply reasonable and appropriate health care coverage;
(12) A parent provides substantially all the support for a stepchild, and the stepchild’s parents earn no income and are unable to earn income;
(13) A child earns an extraordinary income;
(14) The court orders a parent to pay taxes, mortgage installments, home insurance premiums, telephone or utility bills, etc. before entry of a final judgment or order;
(15) A parent must pay significant amounts of restitution, fines, fees, or costs associated with that parent’s conviction or incarceration for a crime other than those related to failing to support children, or a crime against a child in the current case or that child’s sibling, other parent, or custodian;
(16) A parent makes payments to a bankruptcy plan or has debt discharged, when either significantly impacts the monies that parent has available to pay support;
(17) A parent provides a substantial amount of a child’s daytime care and directly contributes toward a significantly greater share of the child’s costs than those reflected by the overnights used to calculate the offset for parental time;
(18) A child in the custody of a third-party recipient spends a significant number of overnights with the payer that causes a significant savings in the third party’s expenses;
(19) The court ordered non-modifiable spousal support paid between the parents before October 2004;
(20) When a parent’s share of net child care expenses exceeds 50 percent of that parent’s base support obligation calculated under Section 3.02 before applying the parental time offset;
(21) Any other factor the court deems relevant to the best interests of a child.
Parental Agreements Regarding Child Support
It is quite common for parents to come to an agreement with respect to child support, just as they agree on the terms of custody and parenting time. These agreements as to support, however, are not allowed unless the appropriate requirements for a deviation discussed above are met.
The reason for this is the public policy argument that child support is the inherent right of the child, not of the parents, and therefore the parents cannot “bargain away” the child’s right to such support. Aside from agreements regarding the amount of support, other agreements regarding future terms for child support are also deemed unenforceable as contrary to the rights of the child.
For example, parents cannot place a limit on support to be awarded in the future, cannot agree that support will terminate upon the remarriage of the custodial parent, and cannot agree that support will terminate if a parent stops visitation with the child.