Lawyers Journal

Panelists debate reasons for revised child-support rules

Special to Lawyers Journal Members of the legal community had their first opportunity to learn the thinking behind the recently announced changes to the state's Child Support Guidelines at a Massachusetts Bar Association (MBA) seminar held in Boston on March 4.
The amended guidelines were released on Feb. 4 by Massachusetts Trial Court Chief Justice for Administration and Management (CJAM) Barbara A. Dortch-Okara, following a federally required quadrennial review that drew about 200 letters and written reports from bar associations, including the MBA, parents and attorneys, as well as public comment through five forums held across the state last summer.
The MBA panel discussion, hosted by MBA Family Law Section Council members Denise Squillante, Fern L. Frolin and Marilynne R. Ryan, was the first public discussion of the changes. It drew a large crowd eager to hear the reasons behind the changes, which some critics say do not go far enough to correct problems in the child-support process.
(The revised guidelines are available on the SJC Web site at http://www.state.ma.us/courts/formsandguidelines/csg2002.html.)
Dortch-Okara said the input she received, which included consultation with an economist and research around the United States, focused on limited areas in the guidelines. Corrections were made, she said, but revamping was unnecessary.
"There was no sense we had to start from scratch," she said. "We received criticism we could do nothing regarding statutes and issues around the divorce and custody process."
Dortch-Okara became aware of issues surrounding the guidelines three years ago, when members of fathers' rights organizations approached her.
"I wanted to hear more," she said. "There was discontent in a few areas. Our intent was to correct where needed; not to satisfy."
Changes to the guidelines include minimum and maximum income levels, age of children and prior orders in relation to subsequent families. The revised guidelines in and of themselves do not provide the basis for a modification of the child-support order, noted Dortch-Okara.
According to the new guidelines, to maintain "reasonable standards of living for" children, the custodial disregard of gross income is now applied up to a maximum of $20,000, she explained. The minimum order was raised from $50 to $80. When income exceeds $135,000 of both parents or $100,000 of the non-custodial parent, the court considers the award of support at the minimum presumptive.
"It was not an unfair compromise. We came through basically intact," said panelist Edward M. Ginsburg, associate justice of the SJC. He added that the American Law Institute cites the framework of the new guidelines as the best in the country.
Support orders have been adjusted for inflation, increasing slightly at the bottom and decreasing at the top. Dortch-Okara explained that the resulting schedule was aimed to avoid the "cliff effect," in which a small increase in earnings would automatically mean an increase in support.
Ginsburg said the guidelines are intended to provide a frame of reference in order to achieve a degree of consistency and predictability so that children, the innocent victims of divorce, are not short-changed.
"The basic theory is, we know there isn't enough money to go around and, in 99 percent of cases, only those who can afford a divorce are on public assistance," he said. "It's an economic catastrophe · we can't solve problems as judges and attorneys, because we can't write checks."
Probate and Family Court trial judges use the guidelines to determine child-support payment for custodial parents in divorce and paternity cases. Prior to the establishment of any guidelines, Ginsburg explained, support orders varied from judge to judge, resulting in inconsistencies. In addition, children relied on public assistance because they were not adequately supported.
The revised guidelines, on the contrary, adjust expenses by fairly allocating money between households, Ginsburg said. Yet, often the non-custodial parent cannot fulfill the monetary demands, leaving the custodial parent at a loss for funds.
Determining the needs of the minors involved is an ongoing challenge, particularly as they enter adolescence and young adulthood. The revised guidelines create three age groups, applying the basic order to children ages 0-12, increasing the order by 10 percent for ages 13-18 and leaving the court to decide the amount for minors over age 18.
"In an average family," said Dortch-Okara, "teenagers cost more to raise than younger children when you put aside the issue of childcare."
The issue is further complicated when the non-custodial parent remarries and has children with the new spouse, as this further divides available funds for all minors involved. According to the guidelines, the non-custodial parent with a second family can't be forced to pay an increase in the existing order for the first family. The subsequent family, however, can't be used as a defense to request a decrease on the existing order.
"When you have a second family, you know you have a prior obligation," said panelist and SJC Justice Paula M. Carey. Spending time and money in court arguing prior orders will most likely not result in substantial changes.
Meanwhile, deviations from the guidelines must be based on legitimate reasons, Ginsburg said.
"The guidelines are good 90 percent of the time," he told the audience. "As lawyers, your job is to understand when deviations are appropriate."
Ryan, who chairs the MBA's Child Support Guidelines Committee, said split physical custody and the additional expenses of travel for visitation, daycare, college tuitions and mortgage payments can be areas where deviations can be requested after evaluating income grosses, nets and other factors.
"Sometimes results may surprise you. Look at the end result and ask 'does it feel right?'" she said.

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