Deviating from the child support formula

Written on July 4, 2004 by David C. Sarnacki

2004 Michigan Child Support Formula Manual (effective October 1, 2004):
1.04 Application of and Deviation from the Formula
1.04 (A) Required Application.
(1) All child support recommendations and orders must follow the formula, whether or not the parties agree on the amount of support, except where a court determines that the formula produces an “unjust or inappropriate” result. Except as otherwise provided in MCL 552.605, the court must order child support in an amount determined by application of the child support formula.
(2) All support orders must be stated in monthly amounts. MCL 552.605c(1).
1.04 (B) Agreements to Deviate.
MCL 552.605(3) states that subsection (2) (i.e., MCL 552.605(2)) does not prohibit the court from entering a support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of that subsection are met and deviation factors (a) - (d) are recorded.
1.04 (C) Deviation Requirements.
(1) The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate, and it includes all of the following:
(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.
(d) The reasons why application of the child support formula would be unjust or inappropriate in the case. MCL 552.605(2). See: MCL 552.605, Ghidotti v Barber 459 Mich 189 (1998), and Burba v
Burba 461 Mich 637 (2000).
(2) The Michigan Supreme Court has held that the statutory deviation factors must be recorded. �While a trial court may enter an order of support that deviates from the formula, it may not do so without setting forth in writing or on the record why following the formula would be unjust or inappropriate.�
Ghidotti v Barber, 459 Mich 189 (1998). The criteria for deviating from the formula are mandatory and, to fulfill its statutory duty, a court must carefully articulate these factors to memorialize and explain its decision. Burba v Burba, 461 Mich 637, 644-45 (2000).
1.04 (D) Deviation Criteria.
(1) The Michigan Supreme Court has clarified that deviations cannot be based simply on disagreement with the policies embodied in the statutes or the manual. In Burba v Burba, 461 Mich 637 (2000), the Court held that disagreement with the policies implicit in the formula cannot be the basis for a deviation.
(2) In exercising the discretion set forth in this section, to the extent possible, the court should follow the formula�s principles and algorithms, with the exception of those particular provisions that create an unjust or inappropriate result.
(3) The only basis for deviation from the formula is a finding that application of its provisions would be unjust or inappropriate in a specific case.
(4) Given the common factors considered, the law presumes that the Michigan Child Support Formula sets appropriate levels of support. However, in a limited number of individual cases, the amounts derived from application of the formula may have an unjust or inappropriate result. In those cases, the
law anticipates that the court may exercise discretion in the best interests of the child to determine a just and appropriate amount of support.
(5) In exercising the discretion set forth in this section, the court may consider any or all of the following factors, as well as any additional factor that it determines to be relevant to the best interests of the child:
(a) The child has special needs.
(b) The child has extraordinary educational expenses.
(c) One or both of the parents are minors.
(d) 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 to raise the child�s standard of living above the
public assistance threshold.
(e) A reduction of income available to support a child has occurred due to extraordinary levels of jointly accumulated debt.
(f) The court awards property in lieu of support for the benefit of the child.
(g) One or both parents are incarcerated without income or assets.
(h) One or both parents have incurred, or are likely to incur, extraordinary medical expenses either for themselves or a dependent.
(i) One or both parents earn incomes of a magnitude not fully taken into consideration by the formula.
(j) One or both parents have varying amounts of irregular bonus income.
(k) Someone other than the parent can supply reasonable and appropriate health care coverage.

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