Lawyers Journal

Report of the Child Support Guideline Committee of the MBA

Dated: Sept. 20, 2001 The Child Support Guidelines, mandated by federal law, have been of significant benefit to the Commonwealth of Massachusetts in many ways. They have brought predictability and consistency to child support orders that previously did not exist. They have in many cases raised the level of support for the benefit of children of divorce. On the other hand, mechanical adherence to the Guidelines by litigants, their attorneys and by the Court has resulted in the evolution of a legal culture in which critical analysis of the application of the guidelines in some individual cases has been either abandoned or discouraged. Although deviation is permitted by statute in theory when supported by findings in individual cases, in practice the theory falls victim to ease of administration and dispute avoidance. This has resulted in injustices to some. These injustices come at the expense of parents and their children, as well as other family members and society as a whole. Litigants in such cases are burdened with more financial responsibility than is appropriate under the circumstances of his or her case.1

The Child Support Guidelines Committee is unanimous in its view that a one-page guideline worksheet, however well drafted, will not and cannot be applied fairly to all persons in all circumstances. The Committee is unanimous in its recognition and support for the exercise of discretion by an independent judge who considers all of the circumstances of the parties including the results reached by application of the guidelines. It is critically important that the Court make the final determination as to what level of support is appropriate, and that it do so after considering all facts, not simply adhering a predetermined mathematical formula.
Drawing on the history and experience both in this Commonwealth and in other states in the nation, the Committee believes that a comprehensive study and analysis of the guidelines is warranted. Time unfortunately does not permit us, nor do we believe this Committee possesses all of the resources necessary, to adequately review this complex issue. We therefore decline to make specific recommendations of specific changes to the Child Support Guidelines without the requisite time, thought and expert guidance that we believe to be necessary to undertake this effort effectively. We recognize that changes that may seem appropriate and necessary, when viewed in isolation or when premised on the existence of the status quo, may prove to be undesirable or ineffective. The committee is firm in the belief that the areas noted below have occasioned injustices and must not be ignored for want of the necessary time to comprehensively study the guidelines as a whole and recommend comprehensive modifications.
It is critical that the views of the members of the bar who participated in our preliminary study be heard. It is critical that the voice of the Massachusetts Bar Association be heard. We therefore include our general recommendations and urge Chief Justice Dortch-Okara to consider them in her review and determination on this most important societal issue.
RECOMMENDATIONS:
1. A special multidisciplinary Commission appointed by the Governor or the Chief Justice should be immediately established to make an in-depth study of the guidelines and issue a report and recommendations by December 2002. Although the next federally mandated review is not scheduled until December 2004, there is nothing that prevents an ongoing review with a view toward recommending comprehensive modifications where necessary, and we believe an earlier review is warranted. It is recommended that the Commission be named at the earliest possible date so that the review may begin immediately.
2. The Committee underscores the need for the bar and the Court to be mindful of the fact that the adherence to the guidelines in cases where the ensuing result is unfair and or unjust is not something that is mandated by the Guidelines. Litigants and their advocates are to be encouraged to present inequities in application of the guidelines to the Court. The use of proposed findings in support of deviation when warranted, as well as the adoption of court approved forms for use in cases in which the Court determines deviation is appropriate, are two methods by which just and expeditious resolution of such cases may be achieved.
3. Finally, indicated below are some, but not all, of the guideline components themselves that require review for possible modification:
a. The cap of $75,000/$100,000 should be examined (to determine if it should be updated, increased, decreased, or eliminated altogether);
b. The custodial parent disregard of $15,000 should be examined in a similar vein, recognizing that for some families it represents its entire family income; for others, it is an insignificant portion of family income. Consideration should be given as to whether the amount should be increased, graduated, decreased or the disregard eliminated altogether; or whether there should be a different amount in different cases.
c. There are credits and adjustments that should be considered with regard to an obligor's income. Tax consequences are not given sufficient consideration (particularly at high income levels and with self employed individuals). Consideration of second job, bonus and/or overtime income must be examined. An obligor must be provided with sufficient money to live on for himself or herself in addition to providing for his or her children. This examination should take into consideration that in some circumstances, the net income might be a more reliable barometer than the gross income of one or both parties.
d. The Guidelines, although not silent on all the following subjects, provide little guidance with respect to multiple support orders, unequal treatment of children of different families, cases with more than 3 children, cases where alimony is involved, cases above the cap of $75,000/$100,000, cases with shared custody, cases involving private school or college expenses, cases where the high income earner is the custodial parent, and the interrelationship of the dependency exemption with the child support order.2 e. The various numbers and figures on the guidelines should be looked at, and due consideration given to the fact that the figures have not been updated or revised with the passage of time. This does not suggest that a mechanical formula should be used to "update" those numbers to the current economic times. Graduated brackets should be considered in the long-term analysis.
f. The burdens to the parties in lower income and higher income cases appear to be the most unfairly affected by strict application of the child support guidelines, and caution is urged in these circumstances in particular.
g. There are numerous other circumstances which present financial hardship to one or both parties, all of which can never be included in a single formula-excessive liabilities or expenses, special needs, health insurance considerations, etc. These must be examined and considered.
Time is of the essence for a comprehensive study to be completed. The September 30, 2001 deadline does not allow such a study to be completed. In the meantime, therefore, we strongly advocate the use of judicial discretion as authorized by the statute as a safeguard to injustices wherever possible, recognizing that each case, despite the existence of guidelines, must stand on its own merit.

Respectfully Submitted,

Child Support Review Committee:

Marilynne R. Ryan, Chair

The Hon. Eliot Cohen

Neil Davis

Shirley A. Doyle

John Dugan

Veronica Fenton

Katherine Field

Monroe Inker

The Hon. Malcolm Jones

Charles Kindregan

David Lee

Paul Martinek, Lawyers Weekly

Denise Squillante

Michael Stevens

Kristen Locke, MBA liaison
1. The committee developed a questionnaire that was posted on the Internet and published in Lawyers Weekly seeking information from attorneys, litigants and other interested persons on their experiences with the child support guidelines. The committee reviewed the responses, collected additional information from various sources and drew upon their own collective experience in formulating this report. return to body 2. These cases present a fertile arena for deviation from what would otherwise be required by mechanical application of the guidelines. All parties ought to be cognizant of the absence of specific guideline directives juxtaposed against the generalized authorization to depart in appropriate circumstances and upon recitation of the facts warranting the deviation.return to body

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