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I decided a while ago that I would post the small discussion that I had with one of the judges. While this is one judge, he indicated that the judges had discussed the issue extensively and had come to a conclusion.
The problem with the offset system
In shared custody, parents are often ordered to pay offset to each other. Both pay table amounts of support to each other, and the difference between those two values is actually paid by the higher income person to the lower income person.
In a nutshell, the offset system is not fair. It essentially flips the amount of money each parent spends on the kid. So if the father is expected to pay $700 for the upkeep of his child, and the mother is expected to pay $1600 for the upkeep of her child, then the offset involves the mother paying $900 to the father. Note that the table amount represents the ENTIRE financial contribution expected of a parent.
The net result is that the mother now has $900 less (so 1600-900=700) and the father has $900 more (so 700+900=1600). The situations have reversed.
Before child support:
Father: spends $700 on kids
Mother: spends $1600 on kids
After child support:
Father: spends $1600 on kids
Mother: spends $700 on kids
The situations have reversed. It is patently unfair.
The half-offset
With half offset the payor pays half of the difference to the payee. In the above case, the father would receive $450 from the mother. So the father gets (700+450=1150) and the mother gets (1600-450=1150) This results in the following amounts
Father: spends $1150 on kids
Mother: spends $1150 on kids
Seems fair
Why half-offset may not be fair
Shared custody is more expensive, so while the father in our example might normally be expected to pay $700 for his kids, with shared custody there is some duplication. Extra shoes, extra bedroom. So perhaps the father might pay $900 and the mother might pay $1900. In that case the appropriate half-offset would be $500, which is more than a straight offset but less than a full-offset.
When would full-offset be fair?
Full offset only makes sense if shared custody costs exactly double the amount of a normal custody situation. In other words, full offset assumes that in shared custody the father would actually spend $700x2 = $1400 and the mother would spend $1600x2 = $3200, so offset would be $1800 and the half offset would be $900.
So what is actually fair?
Clearly, something between half and full offset. A lot would depend on the actual circumstances of the parents. Have they reduced their costs by repartnering? What are their actual life costs (eg. transportation to work, etc.)? What are the actual extra costs from shared parenting?
Luckily, the legislation already asks judges to look at these factors. Section 9b and 9c are quite explicit in that regard.
That said, I believe that the half-offset is almost certainly far closer to fair than the full offset, though I am unsurprised that the default seems to be to round up to full offset.
The Judge's view
The judge indicated that the judges had pretty much collectively decided that while "half-offset" was indeed probably more fair on the surface, it didn't account for the fact that the higher income person had a bigger pool of money aside from the money used for child support. Therefore, the full-offset was fair.
In other words, using the above example...
Before child support:
Father: $700 for children + some disposable income
Mother: $1600 for children + more disposable income
After child support:
Father: $1600 for children + some disposable income
Mother: $700 for children + more disposable income
The mother has less money for the children, but can make up for the difference through her greater disposable income. In other words, it is expected that the mother will pull an extra $900 from her disposable income to make up for the difference.
Do I agree with the Judge?
Not at all, the point was to let people know how the judges view the situation, so that arguments can be crafted appropriately. There may not be a way to convince a judge that anything other than full setoff is appropriate. The case law indicates that judges essentially ignore sections 9b and 9c in almost all shared custody cases anyway.
Essentially, I believe that litigants need to focus on actual spending patterns and standard of living to have a judge order any deviation of the full offset default in shared custody situations.
The problem with the offset system
In shared custody, parents are often ordered to pay offset to each other. Both pay table amounts of support to each other, and the difference between those two values is actually paid by the higher income person to the lower income person.
In a nutshell, the offset system is not fair. It essentially flips the amount of money each parent spends on the kid. So if the father is expected to pay $700 for the upkeep of his child, and the mother is expected to pay $1600 for the upkeep of her child, then the offset involves the mother paying $900 to the father. Note that the table amount represents the ENTIRE financial contribution expected of a parent.
The net result is that the mother now has $900 less (so 1600-900=700) and the father has $900 more (so 700+900=1600). The situations have reversed.
Before child support:
Father: spends $700 on kids
Mother: spends $1600 on kids
After child support:
Father: spends $1600 on kids
Mother: spends $700 on kids
The situations have reversed. It is patently unfair.
The half-offset
With half offset the payor pays half of the difference to the payee. In the above case, the father would receive $450 from the mother. So the father gets (700+450=1150) and the mother gets (1600-450=1150) This results in the following amounts
Father: spends $1150 on kids
Mother: spends $1150 on kids
Seems fair
Why half-offset may not be fair
Shared custody is more expensive, so while the father in our example might normally be expected to pay $700 for his kids, with shared custody there is some duplication. Extra shoes, extra bedroom. So perhaps the father might pay $900 and the mother might pay $1900. In that case the appropriate half-offset would be $500, which is more than a straight offset but less than a full-offset.
When would full-offset be fair?
Full offset only makes sense if shared custody costs exactly double the amount of a normal custody situation. In other words, full offset assumes that in shared custody the father would actually spend $700x2 = $1400 and the mother would spend $1600x2 = $3200, so offset would be $1800 and the half offset would be $900.
So what is actually fair?
Clearly, something between half and full offset. A lot would depend on the actual circumstances of the parents. Have they reduced their costs by repartnering? What are their actual life costs (eg. transportation to work, etc.)? What are the actual extra costs from shared parenting?
Luckily, the legislation already asks judges to look at these factors. Section 9b and 9c are quite explicit in that regard.
That said, I believe that the half-offset is almost certainly far closer to fair than the full offset, though I am unsurprised that the default seems to be to round up to full offset.
The Judge's view
The judge indicated that the judges had pretty much collectively decided that while "half-offset" was indeed probably more fair on the surface, it didn't account for the fact that the higher income person had a bigger pool of money aside from the money used for child support. Therefore, the full-offset was fair.
In other words, using the above example...
Before child support:
Father: $700 for children + some disposable income
Mother: $1600 for children + more disposable income
After child support:
Father: $1600 for children + some disposable income
Mother: $700 for children + more disposable income
The mother has less money for the children, but can make up for the difference through her greater disposable income. In other words, it is expected that the mother will pull an extra $900 from her disposable income to make up for the difference.
Do I agree with the Judge?
Not at all, the point was to let people know how the judges view the situation, so that arguments can be crafted appropriately. There may not be a way to convince a judge that anything other than full setoff is appropriate. The case law indicates that judges essentially ignore sections 9b and 9c in almost all shared custody cases anyway.
Essentially, I believe that litigants need to focus on actual spending patterns and standard of living to have a judge order any deviation of the full offset default in shared custody situations.
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