The anticipated revision to the Massachusetts Child Support Guidelines was recently released, which brings about some big changes but also leaves some of the same questions hanging around that the prior guidelines did not clearly address. The initiation of new guidelines always brings about an advanced level of confusion as the written word gets put into action within court orders, so here’s our attempt to help clarify some of the changes.
First, if you’re walking into court BEFORE September 15, 2017, the new guidelines do NOT apply. However, I suspect that they will be taken into consideration when entering into a child support order if some of the new provisions apply to your case so you’re not having to run in on a modification after September 15, 2017. That being said, the old worksheet will still need to be used and the presumptive amount of child support will be according to the 2013 guidelines up until that date. You can find a draft copy of the 2017 work sheet HERE, which will need to be submitted in ALL cases where a child support order is established or modified.
Another clarification that could potentially be important is Principle 5 when it comes to requesting deviations from the presumptive child support amount. The Court has generally been hesitant in granting deviations from the guideline amount unless the Parties agree otherwise. Principle 5 states that “deviations should be used when appropriate to tailor a child support order to the unique circumstances of a particular family.” The commentary states that, “where appropriate, the Court should deviate from the presumptive child support order amount and that attorneys and litigants should offer reasons as to why a deviation may be warranted.” This was added because of the concern that the Court may otherwise hesitate to deviate from the presumptive amount of the calculation. We will see how this actually plays out in court and whether judges begin using their discretion more often than they have in setting higher or lower child support orders, but moral of the story seems to be if you do not ask, you will not get. See the paragraph below where I discuss deviation in more detail.
Child Support for Kids 18 and Over:
Now let’s talk about the bigger changes – The first thing you will probably notice when you look at the new worksheet is that first heading breaks apart your children who are under the age of 18 and those who are 18 and older. They are no longer being all lumped together within one calculation and kids over the age of 18 are being looked at as needing to put on their big kid panties and head out to work to help with household expenses or that, if they are in school, that they are not around as much (and therefore not as expensive – although as a parent of a child over the age of 18, I know this is not necessarily true). Scrolling down to the bottom of the page to Table B shows how the combination of over/under the age of 18 that you have in your household will affect child support. Pursuant to the prior guidelines, you would multiply the base support order by the number of kids in the household (having 2 kids means you’d get/pay 25% more support, 3 kids = 38% more support, 4 kids = 45% more support, etc.). Now, if you have one child and that child is 18 or over, you get/pay 25% LESS child support. If you have one child under 18 and one child over 18, you will get/pay 9% more than the base order for one child. The chart lays out the percentages to be used. But it’s definitely something to pay attention to.
If you’re wondering about those kids who are 18 but haven’t graduated high school yet, Paragraph F(2) states that they should be counted in the calculation as a child under the age of 18, absent deviation.
Paragraph F(3), however, makes all child support for kids age 18 or older completely discretionary – in other words, you’re not automatically going to get child support for that child. The factors laid out for the Court to consider “[i]n determining whether to order child support for a child age 18 or older” include the following: (i) the reason for the child’s continued residence with and principal dependence on the recipient, (ii) the child’s academic circumstances, (iii) the child’s living situation, (iv) the available resources of the parents, (v) each parent’s contribution to the costs of post-secondary education for the child and/or other children of the family, and (vi) any other relevant factor (the catch-all factor).
As before, the Court can require a parent to contribute to the support of an adult child who has a mental or physical disability which causes costs that cannot be met. These actions, however, need to be addressed within a complaint in equity and NOT in a child support order.
College Expenses (and how that plays into child support):
Now let’s talk about the fact that in Massachusetts, if you’re married you cannot be obligated to pay for your child’s college expenses, but if you’re divorced, you could suddenly be on the hook for up to half of the costs. Currently, college expenses have generally ranged from judge to judge with how they are divided: some judges divide it between the parents, some judges break it up into thirds and require the child to be partly responsible, some judges actually look to see what the parents can afford. There has been a trend to limit the amount parents are responsible for to the costs/expenses related to in-state tuition at UMass Amherst. The new guidelines clarify this hefty expense divorced or separated parents can be required to pay.
Importantly, the guidelines state that contribution to college expenses are NOT presumptive! This is a big change from the fact that if your kid was going to college, you would generally be contributing toward the cost. The new guidelines give judges the complete discretion whether to order or decline to order a parent to contribute. The factors that the Court will need to consider are: (i) total cost, (ii) child’s aptitudes, (iii) child’s living situation, (iv) available resources of the parents AND the child, (v) availability of financial aid, and (vi) any other relevant factors. There is clarification that neither parent can be ordered to pay more than 50% of the UMass Amherst in-state resident cost (however, if the Court enters written findings that a parent has the ability to pay a higher amount there can be an exception to the general rule).
There has usually been a fight in determining what “college costs” are to be defined as. I’ve seen requests for airfare at least six times per year, dorm room furnishings, and $50 per week for spending money being included within the definition of college costs. If you want to agree to those extra things, feel free, but the guidelines have defined “college costs” only to include “mandatory fees, tuition, and room and board for [UMass Amherst].” Interestingly, the guidelines state that these costs apply to all orders “regardless of where the child resides or attends school.” This leaves the question open for how does it play into finances if a child commutes to college from home. My guess is that is being addressed by the factors relating to whether child support should be ordered for a child over the age of 18, but it’s still a question that I’m sure will need to be answered as the Court will have to consider “the combined amount of both [college expenses and child support] orders” when it is determining whether “to order child support for a child over age 18 and contribution to the child’s post-secondary educational expenses.”
Health Care Coverage and Child Care Cost Deductions:
Each parent can deduct the “reasonable” cost of individual or family health care coverage actually paid by that parent (dental/vision insurance costs fall under this as well). That means both parents can deduct what they pay for health insurance – not just the parent who covers the child(ren). This also seems to eliminate the argument that you should still be able to claim a deduction for health care if your new spouse is providing you and/or your children health care that you’re not directly paying for. (If you’re reimbursing your new spouse for all or any percent of the health care costs, make sure you document it clearly.) Also, let’s say you have a family plan that covers you, your one child, and your new spouse but you have a single plus one plan available to you – this seems to imply that you could only deduct the costs that would be associated with the plus one plan; however, this would only be when the additional cost would “unreasonably” impact the child support order and it’s very unlikely that the additional amount would significantly impact the child support order. It’s something you should be aware of, but, in reality, probably will not mean much.
If there is going to be a child support order, the Court must include an order for health care for the child (unless the parents agree in writing that the child will be covered by other means). If you have health care coverage available to you through an employer, the presumption is that it is available to you at reasonable cost. If you have insurance available to you but at sky-high prices, make sure you have documents to show the cost is unreasonable and create an undue hardship. The factors the Court will look to are: (i) whether the cost of coverage would prevent payment of some or all of the child support order, (ii) whether the coverage lacks the ability to meet the child’s health care needs due to significant uninsured medical expenses (in the case of very high deductibles or non-coverage of care the child requires), (iii) whether the person paying child support has a gross income of less than 300% of the federal poverty level for his/her household, and (iv) any other relevant factors. If the Court determines that coverage is not available at reasonable cost or would create an undue burden, the Court will order that the payor is required to notify the Department of Revenue (DOR) or the recipient of the child support if access to reasonable health care coverage becomes available.
A new change though that will likely have a real impact on the child support order is that there is now going to be a two-step calculation so that parents have to share the health care and child care burden of the costs proportionately to their income. The combined adjustment for child care and health care costs is now going to be capped at 15% of the child support order.
Child Support Payments for Other Children:
If a prior child support order is actually being paid, then that amount will be deducted from the gross income of the parent paying the support provided the parent provides sufficient proof of the order and payments made. This means the parent who wants to deduct the other child support amount has the burden to prove there is an order and that he or she is actually paying the order before it can be deducted. If there are payments being made on past due amounts, that additional amount being paid cannot be deducted.
If there is no actual child support order but a parent is making voluntary payments to help support another child who does not reside with that parent, the amount being paid can be deducted from the gross income, but only after the Court determines the payments are reasonable. This will probably be determined by looking to the amount a guideline figure would likely produce for another child if an order was entered. The burden is with the parent seeking the reduction in income to prove “the legal obligation to support the child” and “of actual payments made to the other parent or guardian.” In other words, you don’t get to reduce your income because you’re helping your live-out girlfriend/boyfriend with the expenses for her/his child that isn’t yours.
If a parent is living with another biological or adopted child, a “hypothetical amount of child support” may be deducted from his/her gross income. Again, that parent has the burden to prove the legal obligation to provide support but also must provide proof of the gross income of that child’s other parent in order for a child support worksheet to be completed. Where they are living together, I would assume the calculation would be run as though there is 50/50 custody (cross-calculations) but the guidelines do not say that specifically.
As before, obligations to subsequent children may be used as a defense to a request to increase the child support order, but cannot be considered a reason to decrease an existing order.
A negotiation point has always been whether extracurricular activities include private schools or summer camp programs. The guidelines now clearly state that the Court may allocate costs for these expenses if the Court finds they are (i) in the best interest of the child, and (ii) affordable by the parties. This will help in the cases where one parent goes and signs a child up for numerous activities or activities the child doesn’t even want to participate in and where a parent really cannot afford the additional costs – however, the Court will look to the reasonableness of the costs in comparison with the available income. Don’t think that you can just say, “I can’t afford it,” and you’ll get out of paying for it.
Child Support and Alimony Orders:
By now, everyone is aware that in cases where the cumulative income of the parents is less than $250,000, you’re generally only looking at a child support order. There are exceptions where one parent’s income is substantially disparate from the others though. G.L. c. 208, § 53 (c)(2) mandates that any income which the court has already considered for setting a child support order must be excluded from the calculation in setting an alimony payment, but does not state the reverse. In cases where the income between the divorcing couple is disparate, this has led to alimony calculations being conducted first with the alimony amount being added/subtracted from each party’s income accordingly and then a child support order being calculated based on the new figures. There is no change to this within the new guidelines, which is disappointing because it doesn’t seem to remain in line with what is in the best interest of the child, especially if the child is living with the higher-income parent. This remains open for argument before the court.
Pursuant to the new guidelines, you may be seeing an increase in “unallocated support” orders where some or all of a payor’s support obligation may be tax deductible to the payor and considered taxable to the recipient because of the tax benefit that may be achieved. Make sure you’re brining your tax accountant into your discussion of how to award support to see how it plays into your taxes. It is the burden of the parties and attorneys to bring the tax implications to the Court’s attention. Be careful to familiarize yourself with I.R.C. § 71 to ensure an unallocated support order will be deemed tax-deductible pursuant to its requirements.
Minimum Child Support Amounts:
Previously, every parent had an obligation to pay at least $18 per week for child support. This is now going up to a whopping $25 per week based on the combined available income up to $115 per week. Yes, that was use of sarcasm as no child can have his/her basic needs met on $25 per week.
Increased Parenting Time and Child Support Amount:
The underlying idea of the current guidelines was that the more time a non-custodial parent spent with his/her child, the more that parent would have to cover for child-related expenses in his/her household and the less the other parent would have to cover. There were three basic calculations: one for when a parent spends 30% of the time with their child (typical every other weekend schedule); one for when a parent spends more than 30% but less than 50% of the time with their child (approximately 5-6 overnights during the course of two weeks); and then another for when the parents shared 50% of the time.
The new guidelines eliminate the middle calculation claiming it increased litigation and hostility between parents because the focus shifted from a parenting plan that was in the best interests of the child to arguments about a parent only wanting more time to decrease his/her child support payments.
It is recommended that, before child support is calculated, a parenting plan that is best for the children needs to be created (with the recognition that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests – not the best guidance there, but okay.). Only after the parenting plan is established should the child support calculation occur. And here is a slight conundrum where the two issues are usually motioned for, argued about, and decided at the same time.
Modification of Child Support Orders:
The burden that needs to be met to bring a complaint to modify a child support order has expanded to include any of the following: (i) there’s an inconsistency between the existing order and the amount that would result pursuant to the guidelines; (ii) previously ordered health care is no longer available or is still available but the cost is unreasonable or causes an undue hardship; (iii); access to health care coverage has become available to a parent; or (iv) any other “material and substantial change in circumstances” has occurred. As with above, it can be a little “what comes first – the chicken or the egg type of analysis if you do not know what the other parent is making and what the support order would be if the guidelines are run.
Modification of a Prior Child Support Order that Deviated from the Guidelines
How to modify a previous child support order that deviated from the guidelines has been one of those gray areas. Some judges had the opinion that if there was an agreement to deviate from the guideline amount previously, the parties could be held to that. Some judges had the opinion that the guidelines always overrule a prior deviation. Some judges required a showing of a material and substantial change in circumstances before considering modifying a prior child support amount that deviated from the guidelines. Now we have some guidance:
The Court will apply the same deviation to a modification request after finding all three of these factors exist: (i) the underlying reason the deviation was granted still is at issue (the facts are still the same); AND (ii) the deviated figure continues to be in the child’s best interest; AND (iii) the guidelines amount would be unjust or inappropriate under the circumstances.
This means there are still a lot of arguments to be made as to why a previously child support order that deviated from the guidelines should or should not still apply.
Grounds for Deviation from the Guideline Presumption:
Most people paying child support want to pay less than the presumptive amount, and most people receiving support want to get paid more than the presumptive amount. In order for the Court to deviate from the guideline presumptive amount it must enter specific written findings (use the deviation form to make sure this process if followed) that provide all of the following: (i) the presumptive amount pursuant to the guidelines; (ii) a finding that the guideline amount would be unjust or inappropriate under the circumstances; (iii) specific facts justifying the deviation; AND (iv) the deviation is in the child’s best interests.
Rather than leave it vague as to what facts justify a deviation, the following can be used (check the correct box on the deviation form):
- Parties agree to the deviation and the Court believes the agreement is fair and reasonable;
- The child (or a parent) has ongoing extraordinary mental, physical, or developmental needs with financial consequences;
- A parent has extraordinary expenses related to health insurance;
- A parent has extraordinary travel or other expenses related to parenting;
- A parent has a disproportional child care cost to their income;
- The payor is providing “substantially less” than 1/3 of the parenting time (1/3 of parenting time = approximately 10 overnights per month);
- The payor is incarcerated and doesn’t have the money/resources to pay the support;
- Application of the guidelines creates a situation where one of the parents would not be able to support themselves;
- Application of the guidelines would result in a great disparity in the standard of living between the households;
- Application of the guidelines may adversely impact reunification of a parent and child when the child has been temporarily removed from the home by DCF;
- The guidelines would lead to an order that is unjust, inappropriate, or not in the best interests of the child;
- Findings are made that a prior deviation order should still continue; OR
- Any other reason that is put into writing.
What will be interesting is to see whether prior child support orders that were calculated using the hybrid calculation based on parenting time between 30-50% will be upheld now that the calculation for the increased parenting time is no more. There is an argument to be made that the hybrid amount, although different from the current guideline amount, should be upheld by considering the lower amount to be a deviation from the current guidelines if all other facts that supported the amount previously are still the same. There is also an argument to be made that the guidelines changed, which produces a new presumptive amount, so a modification should take place if you can show the prior amount is not in the child’s best interest or produces an unjust or inappropriate amount. If the Court begins to allow for a modification based simply on the changes in the current guidelines only because that calculation is no longer available within the guidelines, there may be a ton of modifications coming the Court’s way.
Calculating Gross Income:
Imputation vs. Attribution of Income:
I know what you’re thinking – what’s the difference between an imputation of income and an attribution of income? Regardless of which word is used, the end result is the same – the gross income used to calculate child support is higher than what was reported on the financial statement. To know which word to use, you can distinguish the two where “imputation” is including an amount that you’re actually getting even if it’s not in the form of cash whereas “attribution” is including a higher amount that the court determines you should be getting but you’re not for one reason or another.
Imputation of Income:
Although I’ve seen some articles that imply the guidelines provide new methods for imputing unreported or undocumented income (such as under-the-table income, expense reimbursements, in-kind payments or benefits received by a parent, personal use of business property, payment of personal expenses by a business, self-employment or operation of a business where those payments are significant and reduce personal living expenses) has significantly changed, I don’t see such a big change in the guidelines. The new guidelines simply takes the same language from the self-employment section and moves it to the imputation of income section; that’s all. Perhaps in the reality of how this plays out, the Court may end up imputing more income to people who are self-employed or receiving benefits from their employment, but I saw this play out pretty often in court before regardless. Please note the case law, specifically P.F. v. Dept. of Rev., 90 Mass. App. Ct. 707, 710-11 (2016), that states that there cannot be an attribution of income based on prior earning capacity if there is “no income or assets from which to pay child support” (even in the case where the payor is in jail because a crime was committed against the child whom the support payment benefited).
Attribution of Income:
Attribution of income happens where the Court finds that a parent is either unemployed or underemployed and is not making reasonable efforts to earn more than what is being reported. In these cases, the Court is going to consider that parent’s potential earning capacity to calculate child support.
Although the prior guidelines set forth factors for the Court to consider when determining whether to attribute income, the general knowledge was that to prove someone was unemployed or underemployed and not making reasonable efforts to earn more, you needed a vocational expert to testify. The new guidelines set forth more factors for the court to consider, such as: (i) the age, number, needs and care of the children covered by the order; (ii) the specific circumstances of the parent (to the extent known and presented to the Court) including, but not limited to, the assets, residence, education, training, job skills, literacy, criminal record and other employment barriers, age, health, past employment and earnings history, as well as the parent’s record of seeking work; (iii) the availability of employers willing to hire the parent; and (iv) the relevant prevailing earnings level in the local community.
This definitely sets forth much more for the Court to consider, but doesn’t clarify whether or not the Court will still need a vocational expert to testify to such things as the availability of work based on the parent’s experience and training, the average earnings for someone with the parent’s experience and training, or whether employers willing to hire the parent are available. This seems to imply, based on the wording that is included in parenthesis above, that the Court can use its discretion in attributing income based on evidence presented relating to the above factors without requiring an expert. That shall remain to be seen how it plays out in court.
Overtime and Second Jobs:
It remains in the Court’s discretion whether to include any, some, or all of income received from overtime or a second job at the time an initial child support order is entered (after considering (i) the history of the income; (ii) the expectation that the income will be consistent and available in the future; (iii) the economic needs of the parties and children; (iv) the impact of the overtime or second job on the parenting plan; and (v) whether overtime is required by the job. If overtime or a second job has been picked up after the initial child support order was entered, the presumption is that it should not be considered as income in a modification of that order.
Duty of Court to Report Misrepresentation of Income:
Everyone knows lying on your taxes is bad and can get you into trouble. When the Court obtains evidence that one or both Parties to a case lied or misrepresented their taxes to the federal and/or state government, the Court has a duty to report the fraudulent activity. The guidelines point this out in black and white and also clarify that lying about or misrepresenting your income on your financial statement (that short or long form you love filing out) may also lead to the Court reporting you to the appropriate authority. Moral of the Story – it’s better NOT to commit fraud to save a couple dollars, so just don’t do it.
So that’s it – a length (but shorter than the actual guidelines) summary of the changes that were made to the child support guidelines that start on September 15, 2017. If you’re reading this and you’re wondering how it may affect your child support order, go talk with an attorney to discuss whether you can or should bring a modification.