There Are 3 Things to Do to Deviate
Video Transcribed: When can you deviate from the child support guidelines in Oklahoma? I’m Tulsa attorney, James Wirth, doing a series of videos related to Oklahoma child support and this one has to do with deviation from the guidelines.
First off, in Oklahoma, we’ve got set guidelines that are statutory that determine the amount of child support, primarily based on each party’s income but there are a few other factors that go in there and that is the amount that child support is going to be unless you deviate from those guidelines. As I noted in a prior video, most of the time, the courts do not want to deviate from those and go along with the guidelines, but when can they deviate?
In order to deviate, there are about three things that we’re looking for, by statute, that must occur for the court to deviate in most circumstances. So the statute that we’re dealing with is Title 22, Section 118H, and that deals with deviations.
What it finds is that the first thing is if you’re going to deviate from the guidelines, the default amount by statute for child support, you’ve got to show that it’s in the best interest of the children and that can be a difficult argument to make if you’re deviating downward from those child support guidelines. But that’s the first thing is you have to show it’s in the best interest of the children.
Second, you’ve got to show that the amount of support indicated is unjust or inappropriate under the circumstances. So, the guidelines are fairly simple. It’s based on the party’s income. So for it to be unjust, it’s got to be for some reason different than just what the party’s income is because if the income is different, then the output of the amount of child support would be different.
So, it’s got to be something separate from what the party’s incomes are. There may be some super important expenses that are really unusual. That may be a reason to deviate but you’ve got to show it to the best interest of the child.
Or, the parties are represented by counsel of each agreed to different dispositions. So this is the most common one that you see if you’re going to deviate from that both parties have agreed, but it also requires by statute, that both parties are represented by attorneys, so that neither party presumably, neither party is being pressured into an agreement that doesn’t make sense to them.
Or, one party is represented by counsel and the deviation benefits the unrepresented party. So if it’s the case where the person benefiting from that is the person that is not represented, then that can also meet it.
Just to sum up where we’ve gotten so far, it’s got to be in the best interest of the children and you need to show that it’s unjust or inappropriate, or both parties agreed and are represented, or both parties have agreed and the party that benefits from it, doesn’t have to represent it. But the other party that it doesn’t benefit is represented by an attorney advocating on their behalf.
And then after you meet those two, then we have the third one, which is that the court has to make specific findings. This is what the statute says. “If the district or administrative court deviates from the amount of the child support indicated by the child support guidelines, the court shall make specific findings of facts supporting such action.
The findings of facts shall include, the reason the court is deviating, the amount the child support would’ve been if it didn’t deviate, and a finding by the court that states how in its determination, the best interest of the child, subject to the support award determination is served by the deviation from the presumptive amount, and application of the guidelines would be unjust or inappropriate in the particular case before the tribunal.
So all of those things, the court needs to make specific findings for that. There is one other opportunity for a potential deviation from the guidelines, however, I’ve never seen this one approved by a court. Most of the time, the court’s going to go with the guidelines.
The times where I have seen deviation are almost always when both parties are in agreement. But this other opportunity for potential deviation is in the circumstances of extreme economic hardship, deviation from the guidelines may be considered when the court finds the deviation is supported by the evidence and is not detrimental to the best interest of the child before the court. So it can’t be detrimental to the best interest of the child and the court’s got to find some extreme economic hardship.
It seems like this subsection is related to lowering a person’s child support, but child support’s primarily based on their income, so why, if they have the income saying that they can do that support, are they not able to in any particular case? I don’t know. It would have to be an extreme circumstance there. I don’t recall ever having a judge grant a deviation on that basis, but it is part of the statute, so for the right case, it may be appropriate.
So most of the time the court’s going to go along with the child support guidelines. However, you could read the statute. There are ways that the court can deviate if the court wants to, in the right circumstances, but the statute requires one additional step, which is the court has to very well document the reason why it’s doing it, what it would’ve been otherwise and how it’s in the best interest or not detrimental to the best interest of the children.
If you’re dealing with a child support issue, and want to talk about deviation, and what’s most appropriate for your case, you’re going to want an attorney to speak with you confidentially to get those details and strategize what’s the best in your circumstances. To get that scheduled with a Tulsa Child Support Collection Attorney at my office. You can go online to makelaweasy.com.
