The N.J. Child Support Guidelines were not designed to deal with true shared parenting situations, and there is no simple answer to the question of how (or if) to apply guidelines in this increasingly common situation. The New Jersey Court Rules create a presumption that the guidelines should be used unless there is a good reason to “deviate”. Recent changes to the Rules have specifically listed an equal parenting time arrangement as a possible, but not mandatory, reason for a Judge to so “deviate”. In practice, however, Judges throughout the state are understandably reluctant to deviate from the guidelines.
As a result, Judges attempt to use the guidelines to deal with these situations by employing varying and inconsistent adjustment methods. Seizing on references in just two prior published court decisions, the methodology now most widely employed can be found in a trial level case called Wunsch-Deffler v. Deffler (2009). The “Wunsch-Deffler” formula has not been specifically adopted by the Appellate or Supreme Court, but has been positively referenced since its publication.
The basic logic of Wunsch-Deffler is that, in a true 50-50 parenting time situation, an adjustment is necessary to the normal calculation in order to account for both parents’ responsibility for paying the child’s “controlled expenses.” Controlled expenses include things like clothing, personal care, and entertainment. A standard calculation would be unfair because the Guidelines assume that only the Parent of Primary Residence would incur Controlled expenses when in fact, both parents are doing so equally. The Wunsch-Deffler adjustment, therefore, backs out the 25% Controlled expenses from the child support paid.
The Wunsch-Deffler adjustment, however, is not a perfect solution in that it still requires one party to be designated as the Parent of Primary Residence in order to run the guidelines. When that designation is changed from one parent to the other, the support numbers change significantly. Further, Wunsch-Deffler leaves open the question of what we do about the controlled expenses once they are backed out. In a more extreme situation where one party has all of the income, it may be unfair to assume equal contribution to these controlled expenses.
While not adopted in any published or unpublished opinion in New Jersey, an alternative method is to create two separate child support worksheets, each assuming equal parenting time but designating one parent as the Parent of Primary Residence without any “Wunsch-Deffler” adjustment for the controlled expenses. This would theoretically determine what each parent would owe the other for the time spent by the child with the other parent, and the two figures could be offset.
In the end, the most literal reading of the Guidelines is that equal parenting time situations should be considered a non-guidelines situation calling for a variation from the worksheet figures, and assessment of child support pursuant to the statutory factors. This approach, however, is relatively unattractive as it may frequently call for plenary hearings, extensive findings of fact, and discretionary determinations of the children’s needs and the parties’ relative abilities to contribute to those needs. This will not facilitate either settlement or expeditious determinations, and will require matters to be diverted from Hearing Officers to Judges and plenary hearings. Clarification and/or direction from the higher courts is needed on this increasingly common situation.