The New Massachusetts Child Support Guidelines

1. The New Massachusetts Child Support Guidelines Presented by: Attorney/Mediator Stephen F. McDonough Attorney Laurie R. Martucci

2. The New Massachusetts Child Support Guidelines Effective January 1, 2009

3. Massachusetts Child Support Guidelines The Guidelines are used: By attorneys and the courts to calculate child support when the parents of a child are no longer living together, regardless of whether the parents of the children are married or unmarried. By the court to set temporary and final orders of child support. By the court to modify existing orders.

4. Background of Changes • The Task Force: • Court appointed a task force in 2006 to review the guidelines. • Task force members included judges, family lawyers, father’s rights advocates, the Department of Revenue, and legal service providers. • Task force review included analyses of economic models, and guidelines from other states. • The Minority Report: • Prepared by a member of the task force to suggest areas that should be considered further, including: • Excessive amounts (especially in low-income households). • Second family and stepfamily income should be considered in decreasing orders. • Child Support should be pro-rated by parenting time.

5. Significant ChangesOverview • New Income Shares Model • Minimum and Maximum Levels • Criteria for Modification • Health Care Costs • Secondary Jobs and Overtime • Adjustments • Attribution of Income

6. New Income Shares Model • The income of both parents is considered. • Allows the child to share in the financial resources of both parents.

7. Minimum and Maximum Levels • Maximum Income for Guidelines to Apply: • New: $250,000 per year in combined gross income. • Old: $100,000 per year for payor’s income or $135,000 per year for combined income. • Minimum order: Remains at $80.00 per month ($18.46 per week). • No Offset: $20,000 disregard eliminated for the recipient’s income.

8. Criteria for Modification New: • Existing court order that is at least 3 years old regardless of change in circumstances; or • Existing court order that is less than 3 years with a change in health insurance or a material change in circumstances. Old: • 20% or more discrepancy between established order and proposed new order.

9. Health Care Costs Cost of Health Insurance: • New: Entire cost of health insurance is deducted from the salary of payor or recipient, regardless of who is covering the children. • Old: Payor is credited for one-half of health insurance if covering the children.

10. Health Care Costs Uninsured Costs: • New: Recipient is responsible for first $250 per year of uninsured medical/dental/vision expenses combined for all children covered under the order. The court allocates any amount above that. • Old: The custodial parent is responsible for the first $100 per child per year of uninsured medical expenses and anything above that is decided on a case-by-case basis. 

11. Secondary Jobs and Overtime Income With regard to modification of existing orders: Income from second jobs and overtime of either parent that is received after an order is entered is presumptively excluded from income, provided it was not worked in the past. Previously, income from second jobs or overtime was included regardless of whether it was worked in the past.

12. Adjustments Ages of the Children: New: • No adjustment for children over age 13. • Child support for children over 18 should be determined on a case-by-case basis. The factors to be considered are specified. • Attribution of income can apply to custodial parents with children under 6 years of age. Old: • Child support increased once child reaches 13 years old. • Support for children over 18 is at the court's discretion. This lack of guidance resulted in wide inconsistency across the state.    • Attribution of income does not apply to custodial parents with children under 6 years of age.

13. Adjustments Other Orders and Obligations: New: • Court ordered spousal and child support are deducted, along with voluntary support payments (as long as they are reasonable) and a hypothetical amount of child support for a child that resides with the payor will be considered.  Old: • Only court ordered spousal and child support may be deducted from the payor’s gross income.

14. Attribution of Income New: • Court should consider setting an order using potential income rather than actual income if the court determines that a parent is unemployed or underemployed. A non-exclusive list of factors shall be considered, including education, past employment and needs and care of the children. Old: • Court may consider potential earning capacity if a parent is unemployed or underemployed. No specific factors were suggested and attribution of income did not apply if there were children under age 6.

15. Areas Previously Not AddressedOverview Shared Custody (50/50) Arrangements Other Child Related Expenses

16. Shared (50/50) Custody Arrangements The Guidelines are calculated twice, first with one parent as the recipient, and then with the other parent as the recipient. The difference in the calculations is paid to the parent with the lower weekly support obligation. Previously, this common arrangement was not addressed.

17. Other Child Related Expenses Specific expenses may be allocated on a case-by-case basis. These expenses include extracurricular activities, private school, post-secondary education and summer camp. Previously, these expenses were not addressed.

18. Areas ClarifiedOverview • Social Security Benefits(SSI/SSDI) • Relationship to Alimony • Child Care Costs • Deviations

19. Social Security Benefits(SSI/SSDI) A child’s disability benefit is excluded from income, but dependency allotments from the parent’s disability or the parent’s social security benefits are included in income. This distinction has been clarified.

20. Relationship to Alimony Some or all of a child support award may be paid as alimony as long as the net after-tax amount of child support characterized as alimony is no less than the amount of child support that the court would have ordered. This clarifies the previous language that the standard of living of the child may not be diminished by characterization of support as alimony. Why is this important? Child support is non-deductible by the payor and non-taxable to the recipient. Alimony is tax deductible by the payor and taxable to the recipient. By designating some or all of the payor’s as alimony, a greater portion of the family’s income may be shifted to a lower tax bracket and provide a significant tax benefit for the family.

21. Child Care Costs Each parent may deduct child care expenses from gross income. It has been clarified that these expenses may include child care needed for training or education necessary to obtain employment or increase earning capacity.

22. Deviations The Court, or the parties by agreement approved by the Court, may deviate from the guidelines provided the Court enters specific written findings. Circumstances that support deviation have been clarified and include: • Child has special needs, aptitudes or extraordinary expenses. • Payor is left without the ability to self support. • Payor is incarcerated, likely to remain incarcerated for 3 more years and has insufficient financial resources to pay support. • Application of the guidelines would result in a gross disparity in the standard of living between the two households. • Parent has extraordinary medical, travel or other expenses related to parenting.

23. Enforcement Wage Assignment: The court can order an employer to deduct child support from the payor’s paycheck and send the money directly to the recipient. Writ of Execution: If the payor has assets such as real property, bank accounts, stocks, or other property, the property may be seized by the court. Contempt: The Recipient can file an action against the payor for contempt of court. The Payor may be ordered to pay or be jailed. Criminal Prosecution: The district attorney's office can seek an indictment against the payor under the criminal laws regarding non-support. The payor may be ordered to pay or be jailed.

24. Guidelines Worksheet Old New

25. Hypothetical #1 • Facts: • Recipient earns $73,788 annually. • Recipient pays $68.00 per week for child care. • Payor earns $39,416 annually. • Payor pays $1,500 annually for family health insurance. • The parents have two children under age 13.

26. Hypothetical #1 Old New

27. Hypothetical #2 • Facts: • Recipient now earns $2,600 annually. • Recipient pays $68.00 per week for child care. • Recipient earned $42,000 annually for the past two years. • Payor earns $96,200 annually. • Payor pays $5,720 annually for family health and dental insurance. • The parents have two children, ages 10 and 16.

28. Hypothetical #2 Old New

29. Common Areas of DisputeOverview Attribution of Income. Enforcement and Modification. Post-Majority Support. Characterization of Alimony. Deviations from Calculation. Interstate Child Support.

30. Questions and Answers Disclaimer: All information in this presentation is for general educational purposes only and should not be considered specific legal advice.  There is no attorney/client relationship created between you and Wagner McDonough LLP.  If you have a legal issue, you should consult with an attorney.