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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
ENGROSSED SENATE
BILL NO. 421 By: Rosino of the Senate
and
Echols of the House
An Act relating to child support; amending 43 O.S.
2011, Sections 118A, as amended by Section 2, Chapter
289, O.S.L. 2016, 118B, 118G and 118I, as amended by
Section 4, Chapter 289, O.S.L. 2016 (43 O.S. Supp.
2020, Sections 118A and 118I), which relate to
definitions, computation of gross income, actual
annualized child care expenses and modification;
modifying definitions; modifying requirements for
computation of gross income; establishing guidelines
for computation of income for incarcerated parent;
clarifying treatment of certain disability
compensation; requiring use of certain schedule for
determination of child care costs under certain
circumstances; adding grounds for modification of
child support orders; modifying effective dates for
child support modification orders; creating certain
rebuttable presumption; requiring abatement of child
support obligation under certain circumstances;
providing for reversion of certain obligation;
providing exception; updating statutory references;
and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE O F OKLAHOMA:
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SECTION 1. AMENDATORY 43 O.S. 2011, Section 118A, as
amended by Section 2, Chapter 289, O.S.L. 2016 (43 O.S. Supp. 2020,
Section 118A), is amended to read as follows:
Section 118A. As used in this act Section 118 et seq. of this
title:
1. “Adjusted Gross Income ” (AGI) means the net determination of
the income of a parent, calculated by modifying the gross income of
the parent as follows:
a. adding to the gross income of the parent any Social
Security benefit paid to t he child on the account of
the parent,
b. deducting from gross income the amount of any support
alimony arising in a prior case to the extent that
payment is actually made,
c. deducting from gross income any deductions as set
forth for other prior -born or after-born children for
whom the parent is legally responsible and is actually
supporting, pursuant to Section 118C of this title,
and
d. deducting the amount of reasonable expenses of the
parties attributable to debt service for preexisting,
jointly acquired debt of the parents;
2. “Base child support obligation ” means the amount of support
displayed on the Schedule of Basic Child Support Obligations which
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corresponds to the combined AGI of both parents and the number of
children for whom support is being determined. This amount is
rebuttably presumed to be the appropriate amount of basic child
support to be provided by both parents in the case immediately under
consideration, prior to consideration of any adjustments for medical
and child care costs, and any other additional expenses;
3. “Current monthly child support obligation ” means the base
child support obligation and the proportional share of any medical
insurance health care coverage, cash medical support and annualized
child care costs;
4. “Custodial person” means a parent or third -party caretaker
who has physical custody of a child more than one hundred eighty -two
(182) days per year;
5. “Incarceration” means an obligor is in custody on a full-
time basis in a local, state or federal correctiona l facility.
Incarceration shall not include probation, parole, work release or
any other detention alternative program that allows the obligor to
be gainfully employed;
6. “Noncustodial parent” means a parent who has physical
custody of a child one hundr ed eighty-two (182) days per year or
less;
6. 7. “Obligor” means the person who is required to make
payments under an order for support;
7. 8. “Obligee” or “person entitled” means:
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a. a person to whom a support debt or support obligation
is owed,
b. the Department of Human Services or a public agency of
another state that has the right to receive current or
accrued support payments or that is providing support
enforcement services, or
c. a person designated in a support order or as otherwise
specified by the court;
8. 9. “Other contributions” means recurring monthly medical
expenses and visitation transportation costs that are not included
in the current monthly child support obligation;
9. 10. “Overnight” means the child is in the physical custody
and control of a parent for an overnight period of at least twelve
(12) hours, and that parent has made a reasonable expenditure of
resources for the care of the child;
10. 11. “Parent” means an individual who has a parent -child
relationship under the Uniform Parentage Act;
11. 12. “Parenting time adjustment ” means an adjustment to the
base child support amount based upon parenting time; and
12. 13. “Payor” means any person or entity paying monies,
income, or earnings to an obligor. In the case of a self -employed
person, the “payor” and “obligor” may be the same person.
SECTION 2. AMENDATORY 43 O.S. 2011, Section 118B, is
amended to read as follows:
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Section 118B. A. As used in this act Section 118 et seq. of
this title:
1. “Gross income” includes earned and passive income from any
source, except as excluded in this section;
2. “Earned income” is defined as income received from labor or
the sale of goods or services and includes, but is not limited to,
income from:
a. salaries,
b. wages,
c. tips,
d. commissions,
e. bonuses,
f. severance pay, and
g. military pay, including hostile fire or imminent
danger pay, combat pay, family separation pay, or
hardship duty location pay; and
3. “Passive income” is defined as all other income and
includes, but is not limited to, income from:
a. dividends,
b. pensions,
c. rent,
d. interest income,
e. trust income,
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f. support alimony being received from someone other than
the other parent in this case,
g. annuities,
h. social security benefits,
i. workers’ compensation benefits,
j. unemployment insurance benefits,
k. disability insurance benefits,
l. gifts,
m. prizes,
n. gambling winnings,
o. lottery winnings, and
p. royalties.
B. Income specifically excluded is:
1. Actual child support received for children not before the
court;
2. Adoption Assistance subsidy paid by the Department of Human
Services;
3. Benefits received from means -tested public assistance
programs including, but not limited to:
a. Temporary Assistance for Needy Families (TANF),
b. Supplemental Security Income (SSI),
c. Food Stamps, and
d. General Assistance and State Supplemental Payments for
Aged, Blind and the Disabled;
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4. The income of the child from any source , including, but not
limited to, trust income and social security b enefits drawn on the
disability of the child; and
5. Payments received by the parent for the care of foster
children.
C. Determining gross income.
1. For purposes of computing gross income of the parents, gross
income shall include for each parent which ever is the most equitable
of:
a. all actual current monthly gross income described in
this section, plus such overtime and supplemental
income as the court deems equitable appropriate,
b. the average of the gross monthly income for the time
actually employed during the previous three (3) years
year, or
c. the minimum wage paid for a forty -hour week, or
d. gross monthly income imputed as set forth in paragraph
3 of this subsection D of this section.
2. If a parent is permanently physically or mentally
incapacitated or incarcerated for more than one hundred eighty (180)
consecutive days, the child support obligation shall be computed on
the basis of actual current monthly gross income. For purposes of
computing gross income of the parents in such circumstan ces, gross
income shall not be imputed as set forth in paragraph 3 of this
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subsection unless the obligor’s incarceration is a result of
indirect contempt of court for failure to pay child support, the
crime of omission to provide child support or for any o ffense for
which the obligee’s dependent child or the oblige e was a victim.
D. 3. Imputed income.
1. Instead of using the actual If evidence of current or
average income of a parent is not available or not the most
equitable, the court may consider the following factors to impute
the parent’s monthly gross income to a parent under the provisions
of this section if equitable.
2. The following factors may be considered by the court when
making a determination of willful and voluntary underemployment or
unemployment:
a. the average wages and hours worked in the parent ’s
particular industry and geographic area and the
parent’s education, training, work experience and
ability to work,
b. wages the parent could earn consistent with the
minimum wage rate of not less than twenty-five (25)
hours per week,
c. whether a parent has been determined by the court to
be willfully or voluntarily underemployed or
unemployed, including whether unemployment or
underemployment for the purpose of pursuing additional
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training or education is reasonable in light of the
obligation of the parent to support his or her
children and, to this end, whether the training or
education will ultimately benefit the child in the
case immediately under consideration by increasing the
parent’s level of support for that child in the future
or other voluntary action to reduce a parent ’s income,
b. when there is no reliable evidence of income,
c. the past and present employment of the parent,
d. the education, training, and ability to work of the
parent,
e. the lifestyle of the parent , including ownership of
valuable assets and resources, whether in the name of
the parent or the current spouse of the parent, that
appears inappropriate or unreasonable for the income
claimed by the parent,
f.
e. the role of the parent as caretaker of a handicapped
or seriously ill child of that parent, or any other
handicapped or seriously ill relative for whom that
parent has assumed the role of caretaker which
eliminates or substantially reduces the ability of the
parent to work outside the home, and the need of that
parent to continue in that role in the future, or
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g.
f. any additional factors deemed relevant to the
particular circumstances of the case.
E. D. Self-employment income.
1. Income from self -employment includes income from, but not
limited to, business operations, work as an independent contractor
or consultant, sales of goods or services, and rental properties,
less ordinary and reasonable expenses necessary to produce such
income.
2. A determination of business income for tax purposes shall
not control for purposes of determining a child support obligation.
Amounts allowed by the Internal Revenue Service for accelerated
depreciation or investment tax credits shall not be considered
reasonable expenses.
3. The district or administrative court shall deduct from self -
employment gross income an amount equal to the employer contribution
for F.I.C.A. tax which an employer would withhold from an employee ’s
earnings on an equivalent gross income amount.
F. E. Fringe benefits.
1. Fringe benefits for inclusion as income or in -kind
remuneration received by a parent in the course of employment, or
operation of a trade or business, shall be counted as income if they
significantly reduce personal living expenses.
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2. Such fringe benefits might include, but are not limited to,
per diem or other allowance, company car, housing, or room and
board.
3. Basic Allowance for Housing, Basic Allowance for
Subsistence, and Variable Housing Allowances for service members are
considered income for the purposes of determining child support.
4. Fringe benefits do not include employee benefits that are
typically added to the salary, wage, or other compensation that a
parent may receive as a standard added benefit, such as employer
contributions to portions of health insurance premiums or employer
contributions to a retirement or pension plan.
G. F. Social Security Title II benefits.
1. Social Security Title II benefits received by a child shall
be included as income to the parent on whose account the benefit of
the child is drawn and applied against the support obligation
ordered to be paid by that parent. If the benefit of the child is
drawn from the disability of the child, the benefit of the child is
not added to the income of either parent and not deducted from the
obligation of either parent.
2. Child support greater than social security benefit.
If the child support award due after calculating the child
support guidelines is greater than the social security benefit
received on behalf of the child, the obligor shall be required to
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pay the amount exceeding the social security benefit as part of the
child support award in the case.
3. Child support equal to or less than social security
benefits.
a. If the child support award d ue after calculating the
child support guidelines is less than or equal to the
social security benefit received on behalf of the
child, the child support obligation of that parent is
met and no additional child support amount must be
paid by that parent.
b. Any social security benefit amounts which are greater
than the support ordered by the court shall be
retained by the caretaker for the benefit of the child
and shall not be used as a reason for decreasing the
child support order or reducing arrearages.
c. The child support computation form shall include a
notation regarding the use of social security benefits
as offset.
4. a. Calculation of child support as provided in subsection
F of this section shall be effective no earlier than
the date on which the m otion to modify was filed.
b. The court may determine if, under the circumstances of
the case, it is appropriate to credit social security
benefits paid to the custodial person prior to a
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modification of child support against the past -due
child support obligation of the noncustodial parent.
c. The noncustodial parent shall not receive credit for
any social security benefits paid directly to the
child.
d. Any credit granted by the court pursuant to
subparagraph b of this paragraph shall be limited to
the time period during which the social security
benefit was paid, or the time period covered by a lump
sum for past social security benefits.
G. Veterans disability compensation benefits received by a
child shall be treated in the same manner as Social Security Title
II benefits as provided in subsection F of this section.
SECTION 3. AMENDATORY 43 O.S. 2011, Section 118G, is
amended to read as follows:
Section 118G. A. The district or administrative court shall
determine the actual an nualized child care expenses reasonably
necessary to enable either or both parents to:
1. Be employed;
2. Seek employment; or
3. Attend school or training to enhance employment income.
B. When a parent is participating in the Department of Human
Services child care subsidy program as provided under Section 230.50
of Title 56 of the Oklahoma Statutes, the Child Care
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Eligibility/Rates Schedule established by the Department shall be
used to determine the amount to be treated as actual child care
costs incurred. When applying the schedule to determine the family
share copayment amount, the share of the base monthly obligation for
child support of the non -responsible parent and the gross income of
the obligee shall be considered as the monthly income of the
obligee. The actual child care costs incurred shall be the family
share copayment amount indicated on the schedule which shall be
allocated and paid monthly in the same proportion as base child
support. The Department of Human Services shall promulgate r ules,
as necessary, to implement the provisions of this section.
C. The actual annualized child care costs incurred for the
purposes authorized by this section shall be allocated and added to
the base child support order , and shall be part of the final ch ild
support order.
D. The district or administrative court shall require the
parent incurring child care expenses to notify the obligor within
forty-five (45) days of any change in the amount of the child care
costs that would affect the annualized child care amount as
determined in the order.
E. A parent may be allowed to provide child care incurred
during employment, employment search , or while the other parent is
attending school or training if the court determines it would lead
to a significant reduct ion in the actual annualized child care cost.
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SECTION 4. AMENDATORY 43 O.S. 2011, Section 118I, as
amended by Section 4, Chapter 289, O.S.L. 2016 (43 O.S. Supp. 2020,
Section 118I), is amended to read as follows:
Section 118I. A. 1. Child support orders may be modified upon
a material change in circumstances which includes, but is not
limited to, an increase or decrease in the needs of the child, an
increase or decrease in the income of the parents, incarceration of
a parent for a time period of more than one hundred eighty (180)
consecutive days, changes in actual annualized child care expenses,
changes in the cost of medical or dental insurance , or when one of
the children in the child support order reaches the age of majority
or otherwise ceases to be entitled to support pursuant to the
support order. The court shall apply the principles of equity in
modifying any child support order due to changes in the
circumstances of either party as it relates to the best interests of
the children.
2. Modification of the Child Support Guideline Schedule shall
not alone be a material change in circumstances for child support
orders.
3. An order of modification shall be effective upon on the
first day of the month following the date the motion to modify was
filed, unless the parties agree to the contrary another date or the
court makes a specific finding of fact that the material change of
circumstance did not occur until a later date.
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B. 1. A child support order shall not be modified
retroactively regardless of whether support was ordered in a
temporary order, a decree of divorce, an order establishing
paternity, modification of an order of support, or other action to
establish or to enforce support.
2. All final orders shall state wheth er past-due support and
interest have accrued pursuant to any temporary order and the amount
due, if any; however, failure to state a past -due amount shall not
bar collection of that amount after entry of the final support
order.
C. The amount of a child support order shall not be construed
to be an amount per child unless specified by the district or
administrative court in the order. A child reaching the age of
majority or otherwise ceasing to be entitled to support pursuant to
the support order shall c onstitute a material change in
circumstances, but shall not automatically serve to modify the
order. When the last child of the parents ceases to be entitled to
support, the child support obligation is automatically terminated as
to prospective child supp ort only.
D. 1. When a child support order is entered or modified, the
parents may agree, or the district or administrative court may
require a periodic exchange of information for an informal review
and adjustment process.
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2. When an existing child sup port order does not contain a
provision which requires an informal review and adjustment process,
either parent may request the other parent to provide the
information necessary for the informal review and adjustment
process. Information shall be provided to the requesting parent
within forty-five (45) days of the request.
3. Requested information may include verification of income,
proof and cost of medical insurance of the children, and current and
projected child care costs. If shared parenting time h as been
awarded by the court, documentation of past and prospective
overnight visits shall be exchanged.
4. Exchange of requested information may occur once a year or
less often, by regular mail.
5. a. If the parents agree to a modification of a child
support order, their agreement shall be in writing
using standard modification forms and the child
support computation form provided for in Section 120
of Title 43 of the Oklahoma Statutes this title.
b. The standard modification forms and the standard child
support computation form shall be submitted to the
district or administrative court. Either court shall
review the modification forms to confirm that the
child support obligation complies with the child
support guidelines or, if agreed to by the parties,
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the court may approve a deviation from the child
support guidelines as provided in subsection B of
Section 118H of this title. If the court approves the
modification forms, they shall be filed with the
court.
E. After November 1, 2021, there shall be a rebuttable
presumption that an obligor who is incarcerated for a period of one
hundred eighty (180) or more consecutive days is unable to pay child
support.
1. The obligor’s child support obligation shall be abated
without court action effective the first day of the month following
the date of entry into the correctional facility or jail and shall
not accrue for the duration of the incarceration unless the
presumption is rebutted by a showing of means to pay as provided in
Section 118B of this title.
2. Upon release from incarceration, the monthly child support
obligation shall revert to the pre-incarceration order amount
beginning the first day of the month following a lapse of ninety
(90) calendar days after release from incarceration.
3. The abatement of a monthly support obligation under this
subsection shall not affect any past-due support that has accrued
prior to the abatement of the obligation.
4. If any of the crimes for which the obligor is incarcerated
are a result of indirect contempt of court for failure to pay child
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support, the crime of omission to provide child support or for any
offense for which the obligee’s dependent child or the obligee was a
victim, the abatement shall not be presumed and the child support
obligation shall continue to accrue.
SECTION 5. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON RU LES, dated 03/30/2021 - DO PASS.