Section Review

A guide to some of the more substantive changes in the New Massachusetts Child Support Guidelines

The revised Massachusetts Child Support Guidelines implemented by Chief Justice for Administration and Justice, Robert A. Mulligan, on January 1, 2009, represent the most significant revisions to the Guidelines since they were first introduced to Massachusetts in 1987. While Federal Law mandates that a review of the Guidelines occur every four years, the latest revisions are the product of the hard work of the Child Support Guidelines Task Force that met over a period of two years.1 The goal of the Task Force was to carefully review, analyze and debate every aspect of the Guidelines. The 2009 Guidelines have been in use for approximately six months and while family law practitioners are familiarizing themselves with the new guidelines, it is useful to identify and clarify a few of the most significant changes embodied in the new Guidelines.

The most significant substantive changes to the Guidelines came in 1) the shift towards an income share method of calculating child support, 2) the elimination of the income disregard, 3) the ability to attribute income to any parent where there is a finding that one party is capable of working and is either unemployed or underemployed, 4) utilizing two guidelines in cases of shared and split custody, 5) the implementation of a hypothetical guideline for those parties with a legal obligation to support additional children, and 6) the "circuit breaker"2 as set forth in 2(h) of the Child Support Guideline Worksheet. These alterations were intended to ease and simplify the implementation of an appropriate presumptive order that would insure the smallest economic impact on the child's standard of living and help to encourage joint parental financial responsibility.3

Income Share

In November of 2006, during the second meeting of the Child Support Guidelines Task Force, Dr. Jane Venohr, an economist with PSI, presented an overview of the various methods that other states use in calculating child support. According to Ms. Venhor, the majority of states use a method referred to as "income share" whereby all child-related expenditures are estimated based on both parents combined incomes. The payor is then ordered to pay support based on his or her proportion of income to the combined income of the parties.4 Alternatively, a few states use a percentage of income approach calculating child support orders based solely on a percentage of the payor's income, without ever considering the income of the recipient.

Massachusetts has long been considered a "hybrid state" when calculating support orders. Until the 2009 revisions, child support orders in Massachusetts were calculated by first using a percentage of the payor's gross income, less prior orders of child support and then reducing that order based on percentage of the recipient's income to the parties combined income. The recipient's income was arrived at by disregarding a portion of their income and the cost of child care. Massachusetts will now for the first time join the majority of states to use an "income shares" approach rather than a straight percentage of income when calculating child support. The new guidelines eliminated the calculation of the initial support order based solely on a percentage of the gross income of the payor. Now, the initial support order considers the gross income of both the payor and the recipient, less the cost of child care, health, dental and vision costs and other support obligation.

Elimination of Income Disregard

The Task Force also eliminated the income disregard from the recipient's income. The support order is then calculating based on the combined available income of both the recipient and the payor. Once the initial order is established based on the amount of combined income of both parties, the recipient's percentage of the combined income is then deducted from the initial order and the remaining order represents the payor's child support obligation.5 This methodology is consistent with the "income share" approach rather than a straight "percentage of income" method of calculating child support. These revisions support the need for and encourage joint responsibility for child support in proportion to, or as a percentage of income.6

Attribution of Income

Prior to the 2009 revisions, the Guidelines specifically indicated that attribution of income was not intended to apply to a custodial parent with children who were under the age of six living in the home. Now, the Guidelines allow for attribution of income for any party where there is a finding that the party is capable of working and is unemployed or underemployed.7 The Task Force was mindful that each family has its own particular set of facts and circumstances that would contribute to the employability of the recipient. For example, it might be easier for the recipient caring for a five year old to return to work than it is for a parent caring for a ten year old with special needs.

A list of non-exclusive factors that the court shall considered where added to the section on Attribution of Income. These non-exclusive factors were without limitation, education, training, health, past employment history of the party and the age, number, needs and care of the children covered by the order. If the Court determines that one of the parties is earning less than he or she could, the Court should then consider potential earning capacity rather than actual earnings in calculating support.8 By removing the prohibition of attribution of income for a caretaker with children under the age of six, the Court must now consider a variety of essential factors and arrive at an order that is far more just and appropriate.

As a practice tip when attribution of income is a relevant factor in setting child support, due consideration should be given to the specific facts of the case. For example, determine the past work history and income of the party. What is the age of the party and will the age of the litigant affect his or her ability to obtain suitable employment. Under the 2009 revisions, the Court is still required to consider the age, number, needs of the children. Will the cost of day care out way the practicality of finding suitable employment. Explore whether or not any of the children have special needs that require a parent to be at home. Remember to bring proposed findings with you to present to the Court, along with a guideline worksheet using the attributed income.

Shared or Split Custodial Arrangements

Another major change in the 2009 revision was the manner in which to calculate child support in those instances where there is a shared or split custodial arrangement. Previously, the Guidelines stated that where the parties agreed to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines do not apply.9 Under Federal and State Law, the Guidelines should apply to all cases and provide a presumptive amount of support required to meet the financial needs of the child. Under the old Guidelines, physical custody of the child was at times made a contested issue since it heavily influenced the amount of support that one party would have to pay or receive from the other parent. As a matter of public policy, the physical custody of children should not be adjudicated primarily on the financial support either paid or received by the parents but rather it should be determined based on the history of the caretaking provided by each of the parents taking the best interests of the child into consideration. The 2009 revisions to this section of the Guidelines were move in that direction.

In order to eliminate the use of support as a reason to request physical custody but still recognize that shared or spit custody must be calculated differently, the Task Force redrafted the Guidelines to read that where two parents share equally or approximately equally the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the recipient, and the second with the other parent as the recipient. The difference in the calculations is paid to the parent with the lower weekly support amount.10 The same methodology for determining support is to be applied in cases where there is more than one child and each parent has a child and in his or her care full time. This arrangement is otherwise known as split custody where both parents have the financial responsibility and parenting time with one of the children. The benefit of this change is to eliminate the protracted custody battles that are highly influenced by monetary support obligations.

As a practical matter, always be prepared for Court by presenting proposed Guideline Worksheets. One worksheet should be with your client as the payor and the other with your client as the recipient. Always check whether or not there are any special circumstances that the Court should take into consideration when making an order for Child Support.

Prior Support Orders and Voluntary Support Payments

Another area of the Guidelines that witnessed substantial changes was the Section on "Other Orders and Obligations". The 2006 Guidelines maintained the reduction of a party's gross income by a previous support order issued by a Court of competent jurisdiction. Similarly, the 2009 Guidelines maintained this reduction but recognized that there were many litigants that were making voluntary support payments to other children who they had a legal obligation to support but where there were no actual support order issued by a Court. In order to insure that all children are able to have there basic needs met, the Task Force implemented the hypothetical guideline to be used to decrease a litigant's gross income when a payor is making voluntary payments for another child who her or she is legally obligated to support.

The idea of creating a hypothetical support order was first addressed by the Massachusetts Supreme Court in the decision of

Department of Revenue v. Mason M.,439 Mass.665 (2003). There, the Court dealt with a child support order where the payor in the paternity action was married and supporting two other marital children. Although the Court endorsed the idea of a hypothetical order, the case was remanded back to the lower court indicating that the litigant's gross income was not correctly used in calculating the support order. In a footnote, the Mason Court indicated that the confusion regarding hypothetical guidelines would be eliminated if the Guidelines were amended to explicitly detail the methodology for drafting a hypothetical guideline for a preexisting family not the subject of a prior order of support.11

The Task Force recognized the need to codify the request of the Court and revised the Guidelines to include the capability of preparing a hypothetical guideline to be used in cases where there is a legal obligation absent a prior Court Order to support children not a party to the case. The Guidelines now provide that to the extent that prior orders for spousal and child support are actually being paid, the Court should deduct those payments from the party's gross income before applying the formula to determine the child support order. Voluntary payments for other children a party has a legal obligation to support may be deducted in whole or in part to the extent the amounts are reasonable. It is the party's obligation to provide evidence and payments of prior orders or voluntary payment.12

The Task Force wanted to promote voluntary payments of child support and recognized that there was a need to accommodate payors who were legally obligated to support their intact family. Notwithstanding this revision, the Task Force made it clear that additional support paid to subsequent families had to be reasonable and they could not be used as a means to modify downward an already existing support order but could only be used to defend against an increase in the existing order. The Task Force maintained the "shield and sword" approach for the meeting the financial needs of subsequent families.

Circuit Breaker

On its face, the calculation as set forth in Lines 2(g) and 2(h) of the Guidelines Worksheet seems to be far more complex and challenging for those of us suffering from math phobias. However, an understanding of the underlying reasoning as to why this circuit breaker was put into place will help to simplify the mechanics of the calculation. The premise of the circuit breaker was to prevent the support order from exceeding a certain percentage of the payor's income.13

The Task Force identified a dilemma with the Guidelines when the payor's income was substantially smaller than the income of the recipient. The problem emerged when the amount of the support order was less than ten (10%) percent of the recipient's income. The amount of the support was so minimal in comparison to the recipient's income that it would have an inconsequential affect of the financial needs of the children. Conversely, the payor with such a high child support order as compared to their limited income would not have sufficient funds available to meet their own basic financial needs. This resulted in the so called "circuit breaker" that would allow for the reduction of support in instances where the support order was less than ten (10%) percent of the recipients income. This would provide the payor with additional funds to insure that he or she could still meet their own financial needs.

Deviation from the Guidelines: A Call for Advocacy

While the Child Support Guidelines have been revised and overhauled, the need for advocacy is still alive and well and living in Massachusetts. A careful practitioner should be cognizant of the individual facts of each case and be prepared to advocate for his or her client. Use the Guidelines to create several different child support scenarios and present the Court with a variety of proposed worksheets that support your theory of the case. Carefully assess whether or not the case merits a deviation from the guidelines. Be familiar with Section IV, of the Guidelines entitled "Deviation" and apply the laundry list of circumstances that the Task Force created that could be used to justify a deviation. Remember to consider whether or not the order, according to the Guidelines, would be unjust or inappropriate. Prepare findings for deviations and present them to Court when necessary.

In drafting arguments on behalf of my clients' I will often go back and reread the principles of the Guidelines. The Task Force spent many hours revising these principles and they serve as a basis for why certain revisions were necessary. These principles always seem to provide me with guidance on how to apply the guidelines to the specific facts of a case. I strongly encourage all practitioners to keep these principles in mind when asking the Court to enter an appropriate and just child support order.

 

Notes

1.  Author Gayle Stone-Turesky had the honor of serving as a member of the Child Support Guidelines Task Force along with Chief Justice Paula M. Carey, Marilynne R. Ryan, Esq., Hon. Anothony R. Nesi, Fern L. Frolin, Esq., Richard Gedeon, Esq., Ned Holstein, M.D., John Johnson, Christina Paradiso, Esq., Robert J. Rivers, Jr. Esq., Mark Sarro, Ph.D., and Marilyn Ray Smith, Esq.

2.  A term artfully created by the Honorable Justice Anthony E. Nesi, a fellow member of the Child Support Guidelines Task Force.

3.  See Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, Preamble, Page 2, January 1, 2009.

4.  See Report of the Child Support Guideline Task Force, Page 19. October 2008.

5.  See Child Support Guidelines Worksheet.

6.  See Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, Principles, Page 2, January 1, 2009.

7.  See Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, Section II H. Attribution of Income, Page 6, January 1, 2009.

8. 

Ibid.

9.  See Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, February 15, 2006.

10.  See, Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, Section II d. Parenting Time, Page 4,, January 1, 2009

11.  See the

12.  See Commonwealth of Massachusetts, Administrative Office of the Trial Court, Child Support Guidelines, Section II I. Other Orders of Support. Page 6, January 1, 2009.

13.  See Report of the Child Support Guideline Task Force, Page 50. October 2008.

Department of Revenue v.Mason M, 439 Mass. 665 (2003), citing Doe v. Roe, (footnote 11)

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