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FROM THE ALABAMA LAWYER: Coloring Outside the (Child Support Guide) Lines

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By Stephanie M. Pollard

The one certainty we can all depend on in family law is that Rule 32 of the Alabama Rules of Judicial Administration establishes guidelines for calculating child support for combined family income of zero to $20,000 per month.[1] It establishes a rebuttable presumption that “the amount of the order that would result from application of these guidelines is the correct amount of child support to be ordered.”[2]

But what about the circumstances where our clients’ incomes or custodial schedules do not fit so neatly inside the guidelines?

While Rule 32 contemplates reasons for deviation,[3] we have to look to case law for guidance on how to color outside the guidelines.

When Combined Monthly Gross Income Exceeds the Uppermost Limits of the Guidelines

Rule 32(C)(1) Ala. R. Jud. Admin. provides: “The court may use its discretion in determining child support in circumstances where combined adjusted gross income … exceeds the uppermost levels of the schedule.”[4]

The Alabama Court of Civil Appeals has held that when parties’ combined adjusted gross income exceeds the uppermost levels of the schedule, “the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce and must reasonably relate to the obligor’s ability to pay for those needs.”[5]

The trial court is free to consider other factors in making its determination, but it must consider the two Dyas factors.[6] Notably, this does not have to include consideration of the obligee parent’s income.[7]

As counsel for the obligee parent (the one who is asking for money), it is imperative for you to have evidence and testimony to establish the reasonable and necessary needs of your client’s children and to be able to relate those expenses to lifestyle and standard of living the children enjoyed before the divorce.

You also need to be able to establish that the obligor parent is financially able to pay the child support obligation.[8] For example, if you are representing one of the mothers of Mick Jagger’s children,[9] you could easily show that Mick (let’s pretend that he and I are on a first-name basis) tours worldwide and earns millions of dollars each year to support his children.

If your client’s child wasn’t fathered by a rock superstar, this can be done through discovery of income, production of bank account records (do not forget apps such as Venmo, PayPal, and CashApp), and evidence of large purchases and lifestyle items.

On the other hand, if you are representing the obligor parent (the one who has to pay), it is your duty to prove the obligee parent did not meet the two-prong Dyas test, and to make a compelling argument that the obligor parent’s income and ability to meet the children’s needs should be considered in the calculation, or you can prove other ways the obligor is satisfying the children’s needs outside of child support.

Just ensure that the expenses incurred by the obligor can be “clearly categorized as essential to basic child support”–the court of civil appeals has excluded payments for vehicle purchases, vehicle accessories, vehicle-registration fees, vehicle servicing, vehicle parts, automobile insurance, guns, a tree stand, skateboard parts, and monthly cellular-telephone payments from being credited to a parent’s child support arrearage, citing the same as “non-essential ‘extras.’”[10]

Shared (50/50) Custody Situations

Currently, the Schedule of Basic Child Support Obligations is premised on the assumption that the non-custodial parent will exercise “customary visitation rights, including summer visitation.”[11] But what are “customary visitation rights, including summer visitation?”

Each circuit seems to have its own idea of a “standard” or “customary” visitation schedule, but it seems that something close to an every-other-weekend schedule is somewhat standard. At least once every four years, the child support guidelines and schedule of basic child support obligations are to be reviewed to ensure their application results in appropriate child support determinations.[12] The Alabama Advisory Committee on Child Support Guidelines and Enforcement is currently engaged in virtual meetings to discuss possible changes to the current guidelines, including considerations for increased parenting time.[13]

The current guidelines do not suggest a calculation for shared (50/50) custody situations, but do include a calculation for split custody.[14] The only guidance given is in the comments to Rule 32, wherein the committee notes it can be “considered by the court as a reason for deviating from the guidelines in appropriate situations, particularly if physical custody is jointly shared by the parents.”[15]

How does this work in practice? In Lee County, Judges Mike Fellows and Steven Speakman use a formula that takes the difference between what each parent’s obligation would be to the other (example: Mother would pay Father $400, Father would pay Mother $650, difference is $250), divides that number in half ($250 divided by 2 = $125), and orders the parent who would owe the higher amount to pay that difference (Father would pay Mother $125).

Because there is so much discretion given to the court where there is no standard or customary visitation schedule, it is important to know your circuit’s standard or customary visitation schedule and your judge’s method of calculating support in shared custody situations so that you can prepare your case (and client) accordingly. One way of dealing with this is to use a calendar as demonstrative evidence to show the court how much parenting time each parent uses. You can bolster that with a child support proposal based, in part, on the time each parent spends with the child. These demonstrative aides, can help you to make a good case for deviating from Rule 32 guidelines.

Modifications When Parents or the Court Did Not Follow the Guidelines

On those occasions where the court did not follow the guidelines, the client who wishes to modify child support must prove a material change in the circumstances that resulted in the earlier deviation from the guidelines.[16] The rebuttable presumption in Rule 32(A)(3)(c)[17] is applicable only if the moving party has “demonstrated a material change in circumstances that resulted in the [earlier] child support determination.”[18] If the court deviates from the child support guidelines, it is required to enter a written finding, “based upon evidence presented in court and stating the reasons therefore, that application of the guidelines would be manifestly unjust or inequitable.”[19]

Therefore, the first thing you must do as a practitioner is to determine what was the reason for deviation (it should be in both the settlement agreement/order and the CS-43 Notice of Compliance filed with the court), and what material changes in circumstances from those reasons listed have occurred to warrant a modification.

You should also be mindful of this when drafting settlement agreements, as child support is always modifiable based on a change in circumstances and a change in a parent’s ability to pay.[20] Consider the language used as the reason(s) for deviation–phrasing that is commonly used such as “the amount is fair and reasonable under the circumstances” does not identify what the circumstances are. Be specific and intentional for your client. Some examples of concise phrasing might include:

  • “Based on the 50/50 shared custody arrangement and current incomes of the parties which are relatively the same, the parties agree neither parent shall pay support to the other.”
  • “Based on the parties’ agreement to equally divide all expenses for the children and current incomes of the parties, the parties acknowledge application of the child support guidelines is not appropriate.”
  • “As Mother will incur travel-related expenses to exercise visitation (including, but not limited to, airfare for herself and the children), application of the guidelines is not equitable at this time.”

Counsel your client to think prospectively. Help them to do just that by discussing potential issues that can arise affecting the child support obligation–or the lack of a child support obligation.


[1] Rule 32(A) Ala. R. Jud. Admin.
[2] Id.
[3] Id. at (A)(ii)(1) (reasons include, but are not limited to, shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court; extraordinary costs of transportation for purposes of visitation borne substantially by one parent; expenses of college education incurred prior to a child’s reaching the age of majority; assets of, or unearned income received by or on behalf of, a child or children; the assumption that the custodial parent will claim the federal and state income-tax exemptions for the children in his or her custody will not be followed in the case; the actual child-care costs incurred on behalf of the children because of the employment or job search of either parent exceeds the costs allowed under subsection (B)(8) of this rule by 20 percent or more; a parent incurs childcare costs associated with the parent’s training or education necessary to obtain a job or to enhance that parent’s earning potential, not to exceed a reasonable time as determined by the court; and other facts or circumstances that the court finds contribute to the best interest of the child or children for whom child support is being determined.).
[4] Rule 32(C)(1) Ala. R. Jud. Admin.
[5] Dyas v. Dyas, 683 So. 2d 971, 973-74 (Ala. Civ. App. 1995) (emphasis added); see also Ex parte Dyas, 683 So. 2d 974, 977 (Ala. 1996).
[6] Young v. Young, 2180190 (Ala. Civ. App. 2020).
[7] Id.; Compare with Justice Bryan’s dissenting opinion in Young v. Young, 1190428 (Ala. 2020) (“…the Court of Civil Appeals’ opinion in this case is a plurality opinion and that, therefore, reliance on the rationale expressed therein should be exercised, if at all, with caution.”).
[8] Call v. Call, 135 So. 3d 254, 261 (Ala. Civ. App. 2013).
[9] According to People magazine, Jagger has eight children, with the youngest born in 2016. (“Eighth Child on the Way for Mick Jagger” People July 14, 2016).
[10] Evans v. Evans, 500 So.2d 1095 (Ala. Civ. App. 1986); see also Derie v. Derie, 689 So. 2d 142, 145 (Ala. Civ. App. 1996), wherein the Alabama Court of Civil Appeals denied father’s argument that his annual contributions to an account established for the children’s education should be considered as a portion of his child support obligation when he agreed to do so by separate provision in the settlement agreement adopted by the divorce judgment; Caswell v. Caswell, 101 So. 3d 769 (Ala. Civ. App. 2012) (“To the extent that the parties are required to equally share in expenditures related to the extracurricular activities of the ‘minor children,’ that obligation is separate and distinct from father’s obligation to pay child support…”), citing Deas v. Deas, 747 So. 2d 332, 337 (Ala. Civ. App. 1999), and Stringer v. Sheffield, 451 So. 2d 320, 323 (Ala. Civ. App. 1984) (affirming the trial court’s refusal to award the father credit against his child-support arrearage for the purchase of sports equipment for the child).
[11] Rule 32 Comment (3) to Amendments effective January 1, 2009.
[12] Rule 32(G) Ala. R. Jud. Admin.
[13] Committee meeting transcripts and other information is available at
[14] Rule 32(B)(10) Ala. R. Jud. Admin.
[15] Knight v. Knight, 739 So.2d 507, 509 (Ala. Civ. App. 1999).
[16] Kwasigroh v. Kwasigroh, 209 So. 3d 520, 526 (Ala. Civ. App. 2016) (citing Milligan v. Milligan, 149 So. 3d 623, 626 (Ala. Civ. App. 2014)).
[17] Rule 32(A)(3)(c) provides a rebuttable presumption that child support should be modified when the difference between the existing child support order and the amount determined by application of the guidelines varies more than 10 percent unless the variation is due to the fact that the existing child support order resulted from a rebuttal of the guidelines and there has been no change in circumstances that resulted in the rebuttal of the guidelines.
[18] Id.
[19] Rule 32(A)(ii) Ala. R. Jud. Admin.
[20] LoPorto v. LoPorto, 717 So. 2d 418 (Ala. Civ. App. 1998).