Alaska Civil Rule 90.3 Commentary Excerpts

INCOME UNDER THE RULE

A. Generally. The first step in determination of child support is calculating a "parent's total income from all sources." Rule 90.3(a)(1). This phrase should be interpreted broadly to include benefits which would have been available for support if the family had remained intact. Income includes, but is not limited to:

  1. salaries and wages (including overtime and tips);
  2. commissions;
  3. severance pay;
  4. royalties;
  5. bonuses and profit sharing;
  6. interest and dividends, including permanent fund dividends;
  7. income derived from self-employment and from businesses or partnerships;
  8. social security;
  9. veterans benefits, except those that are means based;
  10. insurance benefits in place of earned income such as workers' compensation or periodic disability payments;
  11. workers' compensation;
  12. unemployment compensation;
  13. pensions;
  14. annuities;
  15. income from trusts;
  16. capital gains in real and personal property transactions to the extent that they represent a regular source of income;
  17. spousal support received from a person not a party to the order;
  18. contractual agreements;
  19. perquisites or in-kind compensation to the extent that they are significant and reduce living expenses, including but not limited to employer provided housing (including military housing) and transportation benefits (but excluding employer provided health insurance benefits);
  20. income from life insurance or endowment contracts;
  21. income from interest in an estate (direct or through a trust);
  22. lottery or gambling winnings received either in a lump sum or an annuity;
  23. prizes and awards;
  24. net rental income;
  25. disability benefits;
  26. G.I. benefits (excluding education allotments);
  27. National Guard and Reserves drill pay; and
  28. Armed Service Members base pay plus the obligor's allowances for quarters, rations, COLA and specialty pay.

Lump sum withdrawals from pension or profit sharing plans or other funds will not be counted as income to the extent that the proceeds have already been counted as income for the purposes of calculating child support under this rule (i.e., contributions to a voluntary pension plan).

Social security Children's Insurance Benefits (CIB) must be counted as income of the retired or disabled parent on whose behalf the payments are made. CIB paid to the other parent also constitute child support payments by the retired or disabled parent. See Pacana v. State, 941 P.2d 1263 (Alaska 1997).

Means based sources of income such as Alaska Temporary Assistance Program (ATAP), formerly Aid to Families with Dependent Children (AFDC), Food Stamps and Supplemental Security Income (SSI) should not be considered as income. The principal amount of one-time gifts and inheritances should not be considered as income, but interest from the principal amount should be considered as income and the principal amount may be considered as to whether unusual circumstances exist as provided by 90.3(c). Tax deferred dividends and interest earned on pension or retirement accounts, including individual retirement accounts, which are not distributed to the parent are not income. Child support is not income.


DEDUCTIONS UNDER THE RULE

A very limited number of expenses may be deducted from income. Mandatory deductions such as taxes and mandatory union dues are allowable.

Mandatory retirement contributions are a deduction. Voluntary contributions, up to the limit stated in the rule, are also a deduction if the earnings on the retirement account or plan are tax-free or tax-deferred. If a parent is not a participant in a mandatory plan, the limit on voluntary contributions is 7.5% of gross wages and self-employment income. If a parent is a participant in a mandatory plan, the limit on voluntary contributions is 7.5% of gross wages and self-employment income minus the amount of the mandatory contribution.

Other Deductions:

  1. Child support and alimony payments arising from prior relationships which are required by other court or administrative proceedings and actually paid.
  2. Child support for children from prior relationships living with the parent, calculated by using the formula provided by this rule.
  3. Work related child care expenses for the children who are the subject of the child support order.

IMPUTING INCOME FOR UNEMPLOYED OR UNDEREMPLOYED PEOPLE

Potential Income. The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. A determination of potential income may not be made for a parent who is physically or mentally incapacitated, or who is caring for a child under two years of age to whom the parents owe a joint legal responsibility. Potential income will be based upon the parent's work history, qualifications and job opportunities. The court shall consider the totality of the circumstances in deciding whether to impute income. When a parent makes a career change, this consideration should include the extent to which the children will ultimately benefit from the change. The court also may impute potential income for non-income or low income producing assets.


SELF-EMPLOYMENT INCOME

Self Employment Income. Income from self-employment, rent, royalties, or joint ownership of a partnership or closely held corporation includes the gross receipts minus the ordinary and necessary expenses required to produce the income. Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate. Expense reimbursements and in-kind payments such as use of a company car, free housing or reimbursed meals should be included as income if the amount is significant and reduces living expenses.


INCOME AVERAGING

Time Period for Calculating Income. Child support is calculated as a certain percentage of the income which will be earned when the support is to be paid. This determination will necessarily be somewhat speculative because the relevant income figure is expected future income. The court must examine all available evidence to make the best possible calculation.

The determination of future income may be especially difficult when the obligor has had very erratic income in the past. In such a situation, the court may choose to average the obligor's past income over several years. (Emphasis added.)

Despite the difficulty in estimating future income, a child support order should award a specific amount of support, rather than a percentage of whatever future income might be. The latter approach has been rejected because of enforcement and oversight.


Rev. 14 December 2011
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