North Dakota doesn’t allow “deviations” (departures from the strict child support guidelines) in many cases. Child support payors are only allowed to pay less than the guideline amount for specific reasons, which are listed in N.D.A.C. § 75-02-04.1-09. One of these applies when the child support payor bears travel expenses for exercising visitation with the children. If this deviation is available in your case, you might be one of the lucky few who can catch a break on child support.

Child Support Deviation

The North Dakota child support rules (commonly referred to as “guidelines”) are contained within the administrative code. They are notoriously precise. If a person makes X amount of money and has X amount of kids, he or she pays X amount of child support. That’s a slight oversimplification, but broadly correct.

Deviations are hard to come by. The Code states: “No rebuttal of the guidelines may be based upon evidence of factors described or applied in this chapter, except in subsection 2,” and the child support obligation calculated under the guidelines “is rebutted only if a preponderance of the evidence establishes that a deviation is in the best interests of the supported children” and one of the factors listed in the Code. Interpretation: you can only get a downward deviation in your child support in rare cases.

Travel Expenses And The Standard Of Proof

One of the listed “deviation factors” is for child support payors who incur travel expenses to visit their children. To apply in a particular case, the payor bears the burden of proof. A person can’t just make the claim and hope the other parent won’t disprove it. The payor has the responsibility to prove the deviation should apply, or it won’t be granted. What is the standard of proof? A “preponderance of the evidence,” which means that it’s “more likely than not” that the deviation should apply.

What does the payor have to prove? Two things: 1) that a deviation is in the best interests of the children, and 2) the payor has a reduced ability to pay child support due to travel expenses for visitation. Proving that the deviation is in the best interests of the children is a somewhat vague concept. A payor might prove that without a deviation, he or she won’t have the funds necessary to visit the children and develop the type of close relationship the children need.

Proving travel expenses is a bit more tangible. How much will the payor spend to travel to exercise visitation, or pay for the children to be transported to him/her? How much has the payor spent on this in the past? What was the cost of gas, plane tickets, lodging, and food? If a payor can show that paying these expenses results in he or she being unable or less able to pay child support, then the payor can qualify for a downward deviation in child support. It’s a matter of demonstrating to the Court the payor’s budget.

Anticipated Expenses Or Historical Expenses?

Does the payor have to show that he or she has actually paid the expenses in the past, or just that he/she expects to have the travel expenses in the future?

Either, but past expenses is probably a more effective option when available.

The Code states that “when such history is available, actual expenses” should be taken into consideration. Since the rule directs that actual expenses should be used ‘when available,’ it leaves the deviation available to those payors who have not incurred the expenses in the past, and who only anticipate those expenses will be present in the future. Having receipts from the last trip would be more persuasive to the court, but this might not always be an option. If a person hasn’t had the funds to travel from France to North Dakota to visit the kids, for example, then he or she will be forced to be more creative. Perhaps by submitting a quote for roundtrip airfare from France to North Dakota, for hotel stays while in North Dakota, etc.

One thing is clear, the payor must submit some type of reliable evidence, whether receipts, airfare quotes, or otherwise. The only case in which the North Dakota Supreme Court addressed the issue of travel expenses for deviation purposes is Schwalk v. Schwalk, which was decided in 2014. In that case, the payor estimated his expenses for fuel, hotels, food, and others, by simply declaring what he thought they might be. The Court held that this was not sufficient; that he needed to provide his actual expenses.

The Court didn’t state that he could have provided “anticipated” expenses, perhaps by submitting documentation on the mileage between his and the children’s residences, the cost of fuel, a quote from a hotel in the children’s city, etc. But since the Code doesn’t require actual expenses, it’s inferred that the North Dakota Supreme Court would have allowed projections of the expenses, if reliably substantiated, instead of just proclaimed expenses without any evidence (which is what the payor in Schwalk did).

How Much Of A Reduction In Child Support?

This goes to the second problem in Schwalk: the payor didn’t follow the calculation method in the guidelines for travel expenses; he simply asked the Court to reduce his child support from $927 per month, down to $350.

That’s not how it works. N.D.A.C. § 75-02-04.1-09(7) states: “any adjustment shall be made to the obligor’s net income.” This means that if a deviation is allowed, the travel expenses will be subtracted from the payor’s income amount; and since the payor’s income is the primary determinant of the amount of child support, less income means less child support.

Let’s use an example. A payor lives in France and his children reside in Fargo, North Dakota, and the Court accepts that a roundtrip flight is $1,500, a six-night hotel stay is $450, car rental is $500, and meals are $250. The payor is entitled to three such visits each year and has exercised these visits in the past. Then the payor has expenses of $2,700 per visit or $8,100 per year. Finally, let’s say the payor earns $75,000 per year and has two children.

In this scenario, the payor’s child support would drop from roughly $1,387 per month to $1,159 per month. The obligation would drop by almost $250 per month or $3,000 per year; almost certainly worth the effort to make the request of the court, especially if the payor wouldn’t be able to afford to visit the children unless his child support was reduced.

Conclusion

Child support deviations in North Dakota are not easy to obtain, but are possible, including in cases in which the payor incurs travel expenses for visitation. However, meeting the burden to prove the payor should be entitled to the deviation, sufficiently proving the amount of the expenses, and properly calculating the deviation amount, is not an easy task. You should consider hiring an experienced attorney. Call our Family Law Team at 701-297-2890 or email us through the contact form below to see if we could be of assistance to you with this, or other family law matters.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to your particular set of facts.

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