Nevada statute sets forth a formula for determining child support, which is simply a percentage of the obligor’s gross monthly income adjusted for the number of children. For one child, the obligor pays 18%, for two, it increases to 25%. Three is 29%, four is 31%, and for each subsequent child the percentage increases by 2%. This formula is set forth in NRS 125B.070.
There is another statute, NRS 125B.080, that allows a court to deviate from this formula in certain circumstances. For example, one of the factors that can justify a child support award different from the established formula is “[t]he legal responsibility of the parents for the support of others.”
Child Support for the First Children Born to an Obligor Parent
Assume a couple has two children born during their marriage. When the parties divorce, they agree that the mother will have primary physicalcustody subject to the father’s rights of visitation. The court orders the father, as the noncustodial parent, to pay 25% of his gross monthly income to the mother in child support.
Father remarries. He has two more children. What happens now? Is he entitled to ask for a reduction in child support because he now has four children instead of two? Does it matter that the children born of the subsequent marriage aren’t the subject of a support order because they live with him and his new wife? Alternatively, can Mother ask for morechild support if Father starts earning more money?
The statute does not answer these questions. Nevada common law (the law created by the courts instead of the legislature) has answered some of them, but not all.
A scenario identical to our hypothetical came before the Nevada Supreme Court in 1990 where a father of four (two from his first wife and two from his second) was subject to a 25% obligation. Then he started making more money. His first wife asked the court to readjust her award so it reflected 25% of his new earnings. He disagreed and proposed that because he now had four children, the total award should be 31% (the statutory amount for four children) and split between the children of his former wife and the children of his current wife.
The Nevada Supreme Court rejected this rationale. Although it recognized that the district court could have justified a downward deviation based on his obligations to the children from his subsequent marriage, it could not create a new formula separate and apart from the one set forth by the legislature.
The Supreme Court has also urged lower courts to exercise caution in applying a downward deviation based on the birth of subsequent children:
Although application of NRS 125B.080(9)(e) is within the sound discretion of the trial court, the trial court should apply it cautiously. An estimated 75% of divorced persons remarry, most within a few years of their divorce. Divorced men in particular tend to remarry quickly, and often go on to have other children, or at least to provide day-to-day support to a family with stepchildren. By weighing this factor too heavily, trial courts could allow a substantial percentage of child support cases to fall outside of the statutory formula, thus undermining the legislation’s purpose of promoting adequate and uniform support awards.
Lewis v. Hicks, 108 Nev. 1107, 1115–16, 843 P.2d 828, 834 (1992).
Based on Nevada law, then, the children of a first marriage are entitled to the percentage allowed by the statute unless there is justification for a deviation. The children of a second marriage do not have the same guarantee. This is what is known as the “first family first” rule.
Child Support for Subsequent Children Born to an Obligor Parent
Assume for purposes of our hypothetical that Father and Second Wife divorce, and the court now has to decide how much child support to award. This is where Nevada law is not clear.
Most states that have established procedures for this scenario allow some sort of credit to the obligor parent for the child support being paid to the first set of children. In most states, the credit is given by way of a deduction from the total income used to determine the new award, while in others it is a factor for deviation after the presumptive award is set.
Where Nevada law has gaps, the Nevada Supreme Court often turns to California for guidance.
California, like the majority of states, subtracts the support obligation from the total income considered for purposes of determining child support. If Nevada were to follow this rationale, then the Father in our hypothetical scenario would pay 25% of his gross income for his first two children, then that amount would be deducted to form a new “gross” income for purposes of calculating child support for the second pair of children, and he would have to pay 25% of that “gross” income for them.
However, because Nevada has not established a precedent in this regard, an attorney is free to encourage the court to adopt a different method of calculation, depending on the circumstances of the case.