Child Support Guidelines and You

On August 1, 2013 Massachusetts updated the Child Support Guidelines. If you are currently receiving support through a child support order that was entered prior to August 1, 2013 you may be entitled to a modification of that order. The updated Child Support Guidelines contain a number of new provisions that may not have been considered when your support order was entered, the most common change that I am seeing in my own practice is the following:

"These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent. If parenting time is less than one-third for the parent who is not the residential parent, the Court may consider an upward adjustment to the amount provided under the child support guidelines."

What does this mean in plain English? If your child's other parent (the non-custodial parent) does not have parenting time at least 30% of the time and they are currently paying guideline support, that number may be too low. An example would be that over the course of a typical 31 day month if the non-custodial parent has the child less than 10.23 days than the guidelines (and thus your support award) may be modified up to reflect this lack of parenting time. A "typical" visitation order may reflect alternate weekends with one weekly dinner visit, or 10 days per month (assuming a weekend is Friday - Sunday). If your child is having less visitation with their non-custodial parent then that, you may be entitled to a modification of your child support.

Ensuring the proper level of support for your child is of paramount importance and you should consult with a qualified family law attorney to discuss your rights. As always my office offers free consultations either in person, or on the telephone.

Child Support Modification After Morales

On March 12, 2013 the Supreme Judicial Court of Massachusetts issued a decision in Morales v. Morales which clarified the nature of child support modification in the Commonwealth. In Morales, the lower court (in this case the Worcester Probate & Family Court) denied a Complaint for Modification, finding that there was no "material and substantial change in circumstance and no modification was warranted."

The SJC, in overturning the lower court decision found that the "no material change in circumstance" finding was not warranted as G.L. c. 208 § 28 merely sets out that "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines" a modification is warranted. This standard, typically referred to as the inconsistency standard, stands in place of the material change in circumstance standard and permits a modification, if and when, there is an inconsistency in the amount of support to be paid -- regardless of the amount of time that has passed since the entry of the order.

The timeliness argument and finding is interesting. Under the Child Support Guidelines as they are promulgated in the Commonwealth "any child support order less than three years old may be modified only if there has been either (1) a change in health insurance coverage, or (2) a material change in circumstances." In Morales, the lower court found no change in health insurance, and no material change in circumstances in a child support order that was less than three years old --- and yet the SJC overturned the decision because of the inconsistency.

So, how did the SJC rectify the seeming incongruous Child Support Guidelines and G.L. c. 208 § 28? Judge Botsford, writing for the Court specified that the Child Support Guidelines were promulgated pursuant to Federal law, specifically the Family Support Act of 1988. Following the passage of the Family Support Act of 1988, the Commonwealth passed G.L. c. 208 § 28 "to provide that child support modifications would thereafter be governed by the inconsistency standard." The Court found that though "there have been subsequent amendments to Title IV-D that reflect yet additional changes to the Federal legal standard applicable to support order modifications, the inconsistency standard in § 28 has not been amended to take these Federal statutory amendments into account. Accordingly, we are bound to apply the provisions of § 28 as written."

What does this mean for you?

Well, if you are currently paying or receiving child support and you believe that there is a difference between the amount you are paying or receiving and the amount that you should be paying or receiving then you should be prepared to file a Complaint for Modification, even if every other fact applicable to your case is precisely the same as it was when the previous order was put into place. 

Modification is often difficult and is almost always highly contentious, as a Family Law attorney I would always recommend hiring a Family law attorney to help you address your Modification concerns and presenting your case. If you would like to speak to me about possibly filing a Modification my contact information is included in the bar at the righthand side of this page, please feel free to contact me at any time.

Checklist of Financial Documents for Divorce

One thing that remains true for (almost) all of my Massachusetts divorce clients is that they prefer when I give them the option to retrieve documents as I prepare their case file. When you, as the client, obtain documents to assist your divorce attorney in preparing your file it saves time and money. By avoiding the need of having your divorce attorney send out deposition subpoena's and other discovery requests for items that you, as the client and subject individual could more easily obtain, you will save yourself some billable hours in the long run. Of course there will be times when the documents you provide to your divorce attorney are not sufficient should your case proceed to trial, but evidentiary issues aside, most of my clients ask "what can I get for you?" at one time or another.

After the break I have included a lengthy checklist of documents that I frequently ask for as financial disclosures. If you're preparing, or going through, a divorce in the Commonwealth of Massachusetts these are typically the documents that your divorce attorney is going to be most interested in. This is by no means an exhaustive list, and for the most part I use this list internally only, which means that much of it won't apply. However, in an effort to get as much information "out there" as possible, after the jump you will find my checklist for financial disclosures.

No Double Dip: Beware Alimony and Child Support Payments in Massachusetts

When the Commonwealth of Massachusetts passed the Alimony Reform Act in the first half of 2012 one of the main talking points of act was the duration limitation on alimony awards. However, from my prospective the more influential portion of the Alimony Reform can be found in § 53 of G.L. c. 208. This section, and more specifically subsection (c) prohibits the Court from including "gross income which the court has already considered for setting a child support order" in the calculation of alimony.

What does this mean in practical terms to the Massachusetts divorce client? It means that if you're paying child support, most likely you also won't be paying alimony.  I say "most likely" because the Massachusetts Child Support Guidelines specifically do not apply where the combined gross annual income of the parties exceeds $250,000.00.

For those parties who this exception does not apply to G.L. c. 208 § 53 creates a situation where if you're paying child support, you won't also be obligated to pay alimony. Of course this makes sense. This was not always the way of things though, and there are many people in the Commonwealth who are writing two separate checks to their former spouse for alimony and child support.

In fact, even in cases where it may be appropriate for child support and alimony to be awarded concurrently, the Alimony Reform Act provides limitations. G.L. c. 208 § 53(g) specifies that  "if a court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony or child support duration available at the time of divorce; or (ii) rehabilitative alimony beginning upon the termination of child support." Once again the intent of the Legislature was obviously to provide limitations to alimony to prevent situations where individuals are paying alimony for a significant period of time after their children have all grown and moved on with their lives.

If this is the case in your situation, you may be entitled to a modification of your alimony obligation. It would be wise to consult a Family Law attorney in the Worcester county area to advise you of your rights and discuss with you the possibility of modifying your existing alimony obligation.