Current through Register Vol. 54, No.43, October 26, 2024
Rule 1910.19 - Support. Modification. Termination. Guidelines as Substantial Change in Circumstances. Overpayments(a) A petition for modification or termination of an existing support order shall specifically aver the material and substantial change in circumstances upon which the petition is based. A new guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances. The existence of additional income, income sources or assets identified through automated methods or otherwise may also constitute a material and substantial change in circumstances.(b) The procedure upon the petition shall be in accordance with Rule 1910.10 et seq. After a party has filed a petition for modification of a child support order, the petition may not be withdrawn unless both parties consent or with leave of court. A petition for modification of spousal support or alimony pendente lite may be withdrawn without the consent of the other party or leave of court.(c) Pursuant to a petition for modification, the trier-of-fact may modify or terminate the existing support order in any appropriate manner based on the evidence presented without regard to which party filed the petition for modification. If the trier-of-fact finds that there has been a material and substantial change in circumstances, the order may be increased or decreased based on the parties' respective monthly net incomes, consistent with the support guidelines, existing law, and Pa.R.C.P. No. 1910.18(d), and the party's custodial time with the child at the time the modification petition is heard.(d) All charging orders for spousal support and alimony pendente lite shall terminate upon the death of the payee spouse.(e) Within six months prior to the date a child who is the subject of a child support order reaches eighteen (18) years of age, the domestic relations section shall issue an emancipation inquiry and notice to the obligee, with a copy to the obligor, seeking the following information:(1) confirmation of the child's date of birth, date of graduation or withdrawal from high school;(2) whether the child has left the obligee's household and, if so, the date of departure;(3) the existence of any agreement between the parties requiring payments for the benefit of the child after the child has reached age eighteen (18) or graduated from high school; and(4) any special needs of the child which may be a basis for continuing support for that child beyond the child's eighteenth birthday or graduation from high school, whichever is last to occur. The notice shall advise the obligee that if the inquiry is not returned within thirty (30) days of mailing or if there is no agreement or the child does not have any special needs, the charging order may be modified or terminated by the court. In order to avoid overpayment, when no other children are subjects of the child support order and the obligee either does not return the emancipation inquiry within thirty (30) days of its mailing or does not assert grounds for continuing support for the child, then the domestic relations section shall administratively terminate the child support charging order without further proceedings on the last to occur of the date the last child reaches age eighteen (18) or graduates from high school. Termination of the charging order shall not affect any arrears accrued through the date of termination. The court shall have the authority to enter an order requiring the obligor to pay on arrears in an amount equal to the amount of the charging order until all arrears are paid.
If the order applies to another child or children and/or the obligee asserts that there is an agreement between the parties or that a child has special needs requiring continued support, then the domestic relations section may schedule a conference prior to the child's attaining age 18 or graduating from high school to determine if the charging order should be modified.
(f) Upon notice to the obligee, with a copy to the obligor, explaining the basis for the proposed modification or termination, the court may modify or terminate a charging order for support and remit any arrears, all without prejudice, when it appears to the court that: (1) the order is no longer able to be enforced under state law; or(2) the obligor is unable to pay, has no known income or assets and there is no reasonable prospect that the obligor will be able to pay in the foreseeable future. The notice shall advise the obligee to contact the domestic relations section within 60 days of the date of the mailing of the notice if the obligee wishes to contest the proposed modification or termination. If the obligee objects, the domestic relations section shall schedule a conference to provide the obligee the opportunity to contest the proposed action. If the obligee does not respond to the notice or object to the proposed action, the court shall have the authority to modify or terminate the order and remit any arrears, without prejudice.
(g)Overpayments.(1)Order in Effect. If there is an overpayment in an amount in excess of two months of the monthly support obligation and a charging order remains in effect, after notice to the parties as set forth below, the domestic relations section shall reduce the charging order by 20% or an amount sufficient to retire the overpayment by the time the charging order is terminated. The notice shall advise the parties to contact the domestic relations section within 30 days of the date of the mailing of the notice if either or both of them wishes to contest the proposed reduction of the charging order. If either party objects, the domestic relations section shall schedule a conference to provide the objecting party the opportunity to contest the proposed action. If neither party responds to the notice or objects to the proposed action, the domestic relations section shall have the authority to reduce the charging order.(2)Order Terminated. If there is an overpayment in any amount and there is no charging order in effect, within one year of the termination of the charging order, the former obligor may file a petition with the domestic relations section seeking recovery of the overpayment. A copy shall be served upon the former obligee as original process. The domestic relations section shall schedule a conference on the petition, which shall be conducted consistent with the rules governing support actions. The domestic relations section shall have the authority to enter an order against the former obligee for the amount of the overpayment in a monthly amount to be determined by the trier of fact after consideration of the former obligee's ability to pay.(h)Modification of a Support Order with Child Support and Spousal Support or Child Support and Alimony Pendente Lite Entered Before January 1, 2019.(1) In a subsequent modification proceeding of an order awarding child support and spousal support or child support and alimony pendente lite, as provided in Pa.R.C.P. No. 1910.18(d), the trier-of-fact may on its own motion or upon the motion of a party:(i) make an unallocated award in favor of the spouse and one or more children; or(ii) state the support amount allocable to the spouse and to each child.(2) The trier-of-fact shall clearly state whether the order is allocated or unallocated even if the child support and spousal support or child support and alimony pendente lite amounts are delineated in the order.(i) If the order is allocated, the Pa.R.C.P. No. 1910-16.4(a)(2)(Part IV) formula determines the spousal support amount.(A) As the formula assumes an unallocated order, if the order's allocation utilizing the formula is inequitable, the trier-of-fact may adjust the order, as appropriate.(B) In making an adjustment, the trier-of-fact shall consider the federal income tax consequences.(C) If the parties are in higher income brackets, the income tax considerations are likely to be a more significant factor in determining a support amount.(ii) If the order is unallocated or the order is for spousal support or alimony pendente lite only, the trier-of-fact shall not consider the federal income tax consequences. (3) A support award for a spouse and children is taxable to the obligee while an award for the children only is not. Consequently, in certain situations, an award only for the children will be more favorable to the obligee than an award to the spouse and children. In this situation, the trier-of-fact should utilize the method that provides the greatest benefit to the obligee.(4) If the obligee's monthly net income is equal to or greater than the obligor's monthly net income, the guideline amount for spouse and children is identical to the guideline amount for children only. Therefore, in cases involving support for spouse and children, whenever the obligee's monthly net income is equal to or greater than the obligor's monthly net income, the guideline amount indicated shall be attributed to child support only.(5) Unallocated child support and spousal support or child support and alimony pendente lite orders shall terminate upon the obligee's death.(6) In the event that the obligor defaults on an unallocated order, the trier-of-fact shall allocate the order for child support collection pursuant to the Internal Revenue Service income tax refund intercept program or for registration and enforcement of the order in another jurisdiction under the Uniform Interstate Family Support Act, 23 Pa.C.S. §§ 7101-7903. The trier-of-fact shall provide the parties with notice of allocation.(7) An unallocated child support and spousal support or child support and alimony pendente lite order is a final order as to the claims covered in the order.(8) Motions for post-trial relief cannot be filed to the final order.The provisions of this Rule 1910.19 amended January 27, 1993, effective immediately, 23 Pa.B. 701; amended December 2, 1994, effective 3/1/1995, 24 Pa.B. 6263; amended May 31, 2000, effective 7/1/2000, 30 Pa.B. 3155; amended June 5, 2001, effective immediately, 31 Pa.B. 3306; amended October 11, 2002, effective immediately, 32 Pa.B. 5263; amended May 19, 2006, effective immediately, 36 Pa.B. 2629; amended August 26, 2011, effective 11/1/2011, 41 Pa.B. 4847; amended September 19, 2011, effective 10/31/2011, 41 Pa.B. 5153; amended November 5, 2012, effective 12/5/2012, 42 Pa.B. 7091; amended December 28, 2018, effective 1/1/2019, 49 Pa.B. 170.