By Gayle Stone-Turesky & Katherine E. Garren
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)