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Day care expenses and child support

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You have little children at home and both of you work. You are going through a divorce and wonder how day care is going to be paid for. Does child support cover day care costs? Are day care costs covered separately over and above child support? Are day care costs considered “variable costs” and paid for outside of child support?

s. 767.511 (1m) of the Wisconsin Statutes address the question of day care costs:

(1m) DEVIATION FROM STANDARD; FACTORS. “Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j), if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties;

……

(e) The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.”

In the case of McLaren v. McLaren, 265 Wis. 2d 529 (Ct. App. 2003), at the trial court level, the court ordered the husband to pay the full percentage guidelines for support AND 50% of the day care costs for the minor children. The court of appeals reversed and made the following findings:

“Section 767.25 (4m) (now renumbered as 767.511), makes no provision as to splitting child care beyond what is provided in the child support payments. We therefore conclude that the trial court did, in fact, deviate from the child support guidelines by ordering payment of child care expenses in addition to 25% of Sean’s (the husband’s) gross monthly income. Thus, the trial court was required under Wis. Stat. s. 767.25 to explain its’ deviation from the guidelines.”

“Because the trial court did, in fact, deviate from the child support percentage standards when it ordered Sean (the husband) to pay one-half of the daycare expenses and did so without addressing the Wis. Stat. s. 767.25 (1m) factors, the trial court erroneously exercised its’ discretion. We therefore reverse the child support order in its’ entirety and remand this matter to the trial court to conduct further proceedings on the issue of child support.”

So, what does all of this mean? It means the court certainly has statutory authority in Wisconsin to consider the costs of day care and can allocate the costs between the parties. In order to do so, the court must consider all of the factors listed under the child support statute for a deviation from applying the percentage guidelines. You can’t expect the court to order the non custodial parent to pay the full freight as to child support and half the day care costs. If the court is inclined to order 50% payment of day care costs, it must be considered as a deviation down from the child support guidelines.

If you have questions about day care costs in Wisconsin when going through a divorce, or how child support works, contact the experienced family lawyers at Karp & Iancu, S.C. today for a free consultation.

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