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In re Order Amending Rules 1910.4

Supreme Court of Pennsylvania

July 30, 2018

IN RE:ORDER AMENDING RULES 1910.4, 1910.16, 1910.16-4, 1910.17, 1920.1, 1920.13, 1920.15, 1920.31, 1920.51, 1920.52, 1920.54, 1920.56, AND 1920.74 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE

         CIVIL PROCEDURAL RULES DOCKET

          ORDER

          PER CURIAM

         AND NOW, this 30th day of July, 2018, upon the recommendation of the Domestic Relations Procedural Rules Committee; the proposal having been published for public comment in the Pennsylvania Bulletin, 47 Pa.B. 2540 (May 6, 2017):

         It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1910.4, 1910.16, 1910.16-4, 1910.17, 1920.1, 1920.13, 1920.15, 1920.31, 1920.51, 1920.52, 1920.54, 1920.56, and 1920.74 of the Pennsylvania Rules of Civil Procedure are amended in the attached form.

         This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on January 1, 2019.

         [Rule 1910.4. Commencement of Action. Fee.

         (a) An action shall be commenced by filing a complaint with the domestic relations section of the court of common pleas.

         Note: For the form of the complaint, see Rule 1910.27(a).

         See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.

         Section 961 of the Judicial Code, 42 Pa.C.S. § 961, provides that each court of common pleas shall have a domestic relations section.

         (b) No filing fee shall be required in advance.]

         [Explanatory Comment-1994

         The rule continues the practice under repealed Section 6704(a) of the Judicial Code in providing that the action shall be commenced by the filing of a complaint. The complaint will be filed with the domestic relations section of the court of common pleas. Section 961 of the Judicial Code provides for each court of common pleas to have a domestic relations section.

         Subdivision (b) continues the prior practice under the repealed Act of July 13, 1953, P.L. 431, § 14, 62 P.S. § 2043.44, which provided: "No fee shall be required to be paid in advance."]

         --- The text below replaces the current rule in its entirety. ---

         Rule 1910.4. Domestic Relations Section. Commencement of Action. No Filing Fees. Authorized Fees.

         (a) Each court of common pleas shall have a domestic relations section that shall be the filing office for pleadings and documents for child support, spousal support, and alimony pendente lite actions.

         (b) A party shall commence actions for child support and spousal support by filing a complaint in the domestic relations section. A party shall commence an action for alimony pendente lite by filing a complaint in the domestic relations section if a divorce complaint has been filed with the prothonotary.

         Note: See Pa.R.C.P. No. 1910.27(a) for the form of the complaint.

         See Pa.R.C.P. No. 1930.1(b). To the extent this rule applies to actions not governed by other legal authority regarding confidentiality of information and documents in support actions or that attorneys or unrepresented parties file support-related confidential information and documents in non-support actions (e.g., divorce, custody), the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania shall apply.

         See the Pennsylvania Department of Human Services Child Support Program for e-services, including filing for support or requesting a modification of an existing support order at https://www.humanservices.state.pa.us/csws/.

         See Pa.R.C.P. No. 1920.31(a)(2) regarding the filing of alimony pendente lite actions in the domestic relations section.

         (c) The domestic relations section shall not require payment of a filing fee to commence or modify an action.

         (d) Unless authorized by statute, a judicial district shall not impose additional fees in actions for child support, spousal support, and alimony pendente lite. The domestic relations section shall collect fees through the Pennsylvania Child Support Enforcement System (PACSES).

         Note: The statutorily authorized fees in actions for child support, spousal support, and alimony pendente lite include the genetic testing fee, the federally mandated annual fee, and fees associated with statewide court operations referenced in 204 Pa. Code § 29.351.

         Rule 1910.16. Support Order. Allocation.

         (a) In an order awarding child support and spousal support or child support and alimony pendente lite, the court may on its own motion or upon the motion of either party:

         (1) Make an unallocated award in favor of the spouse and one or more children[, ]; or (2) State the amount of support allocable to the spouse and the amount allocable to each child.

         Note: See 23 Pa.C.S. § 4348(d) for additional matters [which]that must be specified in an order of support if arrearages exist when the order is entered.

         (b) [An unallocated order in favor of the spouse and one or more children shall be a final order as to all claims covered in the order. No motion for post-trial relief may be filed to the final order.]An unallocated order for child support and spousal support or child support and alimony pendente lite shall be a final order as to all claims covered in the order. Motions for post-trial relief may not be filed to the final order.

         Note: The procedure relating to Motions for Reconsideration is set forth in [Rule]Pa.R.C.P. No. 1930.2.

         Explanatory Comment - 2018

         Subdivision (b) resolves the question of the appealability of an unallocated order and any other claims adjudicated in that order. The rule declares the orders are final and appealable. Not only is the unallocated support order final and appealable, so are the other claims covered in the order, irrespective of whether those would be final and appealable had the claims not been a part of the order awarding unallocated support.

         Rule 1910.16-4. Support Guidelines. Calculation of Support Obligation, Formula.

         (f) Allocation. Consequences.

         (1) An order awarding [both spousal and] child support and spousal support or child support and alimony pendente lite may be unallocated or may state the amount of support allocable to the spouse and the amount allocable to each child. [Each]The order shall clearly state whether it is allocated or unallocated even if the amounts calculated for child support and spousal support or child support and alimony pendente lite are delineated [on]in the order. However, Part IV of the formula provided by these rules assumes that an order will be unallocated. Therefore, if the order is [to be ]allocated, the formula set forth in this rule shall be utilized to determine the amount of support allocable to the spouse. If the allocation of an order utilizing the formula would be inequitable, the court shall make an appropriate adjustment. Also, if an order is [to be] allocated, an adjustment shall be made to the award giving consideration to the federal income tax consequences of an allocated order as may be appropriate under the circumstances. [No consideration of]The federal income tax consequences shall not be [applied]considered if the order is unallocated or the order is for [the] spousal support or alimony [pendente lite]pendente lite only.

         Note: The 2005 amendment supersedes Diament v. Diament, 816 A.2d 256 (Pa. Super. [Ct.] 2003), to the extent that it held that the tax savings from payments for the benefit of a spouse alone or from an unallocated order for the benefit of a spouse and child must be considered in determining the obligor's available net income for support purposes. [Rule]Pa.R.C.P. No. 1910.16-4(f)(1) states that the guidelines formula assumes that the order will be unallocated. The tax consequences of an order for a spouse alone or an unallocated order for the benefit of a spouse and child have already been built into the formula.

         (2) When the parties are in higher income brackets, the income tax considerations are likely to be a more significant factor in determining an award of support. A support award for a spouse and children is taxable to the obligee while an award for the children only is not. Consequently, in certain situations, an award only for the children will be more favorable to the obligee than an award to the spouse and children. In this situation, the trier of fact should utilize the [guidelines which result]method that results in the greatest benefit to the obligee.

         [When]If the obligee's net income is equal to or greater than the obligor's net income, the guideline amount for spouse and children is identical to the guideline amount for children only. Therefore, in cases involving support for spouse and children, whenever the obligee's net income is equal to or greater than the obligor's net income, the guideline amount indicated shall be attributed to child support only.

         (3) Unallocated charging orders for child support and spousal support[, ] or child support and alimony [pendente lite, ]pendente lite shall terminate upon the death of the [payee spouse or payee ex-spouse]obligee.

         (4) In the event that the obligor defaults on an unallocated order, the court shall allocate the order for collection of child support pursuant to the Internal Revenue Service income tax refund intercept program or for registration and enforcement of the order in another jurisdiction under the Uniform Interstate Family Support Act, 23 Pa.C.S.[A.] §§ 7101 [et seq]et seq. The court shall provide notice of allocation to the parties.

         Note: This provision is necessary to comply with various state and federal laws relating to the enforcement of child support. It is not intended to affect the tax consequences of an unallocated order.

         [Explanatory Comment-2005

         Rule 1910.16-4(a) sets forth the income shares formula used to establish the support obligation. Subdivision (b) provides the method for calculating support for seven or more children as the basic support schedule in Rule 1910.16-3 sets forth the presumptive amount of support for only up to six children.

         Subdivision (c) sets forth the method for calculating the presumptive amount of support in cases where the children spend 40% or more of their time during the year with the obligor. When there is equal time sharing, subsection (2) reduces the support obligation further so that the obligor does not pay more than is necessary to equalize the parties' combined income between the two households. Subsection (3) expressly excludes SSR cases from application of this rule. Since the SSR already reduces support to a minimal level, no further reduction should be given for the amount of time spent with the children.

         Subdivision (d) relates to the calculation of support in divided or split custody cases. It retains the existing method for offsetting the parties' respective support obligations when one or more of the children resides with each party.

         Subdivision (e) governs spousal support obligations when the custodial parent owes spousal support. It has not been amended, other than to update the example to be consistent with the new schedule at Rule 1910.16-3.

         In subdivision (f), the guidelines continue to presume that the order will be unallocated for tax purposes. However, new language has been added to subsection (f)(1), and a new Note has been inserted, to clarify that an obligor's tax savings from payment of a spousal support order or an unallocated order for a spouse and child should not be considered in calculating the obligor's available net income for support purposes. Subsection (3) is intended to insure alimony tax treatment of unallocated orders pursuant to § 71 of the Internal Revenue Code. Rule 1910.19(d) provides that all spousal support and alimony pendente lite orders terminate upon the death of the payee. Termination of a charging order does not affect arrears existing at that time. Subsection (4) provides for administrative allocation of the order in two instances: 1) when the obligor defaults on the order and it becomes necessary to collect support by intercepting any income tax refunds that may be due and payable to ...


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