Child Support & Custody

 

 

The child support guidelines are formulated to be used by the justices of the Trial Court, whether the parents of the children are married or unmarried, in setting temporary, permanent or final orders for current child support, in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.

 

 

A modification may be allowed upon showing a discrepancy of 20% or more between an established order and a proposed new order calculated under these guidelines. The presumption establishing a proposed new order may be rebutted in cases where the amount of support required under the guidelines is due to the fact that the amount of the current support order resulted from a rebuttal of the guideline amount and there has not been a change in the circumstances which resulted in a rebuttal of the guideline amount. In all orders where an order for child support is requested, a guideline worksheet must be filled out, regardless of the income of the parties.

 

 

Alimony and property division also relate to the issues of child support. In determining the ideal result for you in a divorce situation, you need to decide how each factor will help or hurt you. For example, you may decide to ask for a larger child support award to help with extra child-related expenses rather than ask for alimony. Or you may want extra alimony rather than child support because your children are almost finished with school. You should sit down with pen and paper and make calculations based on the different factors given the facts of your case.

 

 

Practice Note

 

Child support, alimony, and property division are somewhat related in a divorce. In any divorce, there is a limited amount of money and property to divide between the parents and to support the children. You need to decide, based on the facts of your case, what combination of child support, alimony, and property division makes sense. If you have assets, you may consider meeting with a financial planner to help you decide what course of action to take.

 

 

Child Support Guidlines

  

 

GROSS WEEKLY INCOME
NUMBER OF CHILDREN
1
2
3

$0-$100

 

Discretion of the court, but not less than $80 per month

$101-$280

 

21%
24%
27%

$281-$750

$59 + 23%
$67 + 28%
$76 + 31%


(% refers to all dollars over $280)
$751-max
$167 + 25%
$199 + 30%
$222 + 33%


(% refers to all dollars over $750)


 

For children in excess of 3 covered by the order, the support shall be no less than that for 3 children; should a judge order support at the 3 child level, written findings shall describe the circumstances of the particular case which warrant the minimum order.

 

 

Within the discretion of the court, and in consideration of the totality of the circumstances of the parties, the Basic Order may be either increased or decreased by 2%. An adjustment of 2% shall not be considered a deviation.

 

 

 

AGE DIFFERENTIAL

 

The above orders are to be increased to reflect the cost of raising older children. The following is intended to be applied to the age of the oldest child in the household for whom support is sought under the pending action.



 

AGE OF OLDEST CHILD
PERCENTAGE INCREASE

0-12
Basic Order Applies
13-18
Basic Order + 10% of Basic Order
Over 18
Discretion of the court (and if statute permits)

 

 

CUSTODIAL PARENT INCOME ADJUSTMENT

 

Where the custodial parent works and earns income in excess of $20,000 after consideration of child care expenses, the support order is to be reduced by the percentage that the excess represents in relation to the combined incomes of both parents minus the custodial parent's disregard.

 

 

 

I. INCOME DEFINITION


 

A. For purposes of these guidelines income is defined as gross income from whatever source. Those sources include, but are not limited to, the following:



 

1) salaries and wages, including overtime and tips, and income from self-employment, except in certain instances, see B below;
2) commissions;
3) severance pay;
4) royalties;
5) bonuses;
6) interest and dividends;
7) income derived from business/partnerships;
8) social security;
9) veterans' benefits;
10) insurance benefits, including those received for disability and personal injury;
11) workers' compensation;
12) unemployment compensation;
13) pensions;
14) annuities;
15) income from trusts;
16) capital gains in real and personal property transactions to the extent that they represent a regular source of income;
17) spousal support received from a person not a party to the order;
18) contractual agreements;
19) perquisites or in kind compensation to the extent that they represent a regular source of income;
20) unearned income of children, in the court's discretion;
21) income from life insurance or endowment contracts;
22) income from interest in an estate, either directly or through a trust;
23) lottery or gambling winnings received either in a lump sum or in the form of an annuity;
24) prizes or awards;
25) net rental income; and
26) funds received from earned income credit

 

 

B. In individual cases, the court may choose to disregard overtime income or income derived from a second job. However, consideration of such income may be appropriate in certain instances such as those where such income constituted a regular source of income when the family was intact.

 


 

 

 

II. FACTORS TO BE CONSIDERED FOR CHILD SUPPORT


 

 

 

A. RELATIONSHIP TO ALIMONY OR SEPARATE MAINTENANCE PAYMENTS

 

So long as the standard of living of the children is not diminished, these guidelines do not preclude the court from deciding that any order be denominated in whole or in part as alimony or as a separate maintenance payment. It is the responsibility of counsel representing the parties to present the tax consequences of proposed orders to the court.

 


 

B. CLAIMS OF PERSONAL EXEMPTIONS FOR CHILD DEPENDENTS


 

In setting a support order, the court may make an order regarding the claims of personal exemptions for child dependents between the parties to the extent permitted by law.

 


 

C. MINIMUM AND MAXIMUM LEVELS

 


The guidelines recognize the principle that, in many instances, to maintain a domicile and a reasonable standard of living for the minor children, the custodial parent will choose to work. In those cases, a disregard of gross income of the custodial parent is to be applied up to a maximum of $20,000. The formula in these guidelines is intended to be adjusted where the income of the custodial parent exceeds the $20,000 disregard after consideration of day care expenses.

 


 

These guidelines are also intended to ensure a minimum subsistence level for those non-custodial parents whose income is less than $100 per week. However, it is the obligation of all parents to contribute to the support of their children. To that end, in all cases, a minimum order of $80.00 per month ($18.46 per week) should enter. This minimum should not be construed as limiting the court's ability to set a higher order, should circumstances permit.

 


 

Where the court makes a determination that either or both of the parties is either purposely unemployed or underemployed, the section of these guidelines entitled ATTRIBUTION OF INCOME should be consulted.

 


 

These guidelines are not meant to apply where the combined gross income of the parties exceeds $135,000 or where the gross income of the non-custodial parent exceeds $100,000. In cases where income exceeds these limits, the court should consider the award of support at the $100,000/$135,000 level as a minimum presumptive level of support to be awarded. Additional amounts of child support may be awarded at the judge's discretion.

 


 

D. CUSTODY AND VISITATION

 

 

Custody - These guidelines are based upon traditional custody and visitation arrangements. Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable. The guidelines also are not meant to apply to cases in which there is split physical custody, i.e., each parent has physical custody of one or more children.

 


 

Visitation - These guidelines recognize that children must be allowed to enjoy the society and companionship of both parents to the greatest extent possible. The court may adjust the amount of child support beyond the 2 percent range (see SECTION III (A), BASIC ORDER) after taking into consideration the parties' actual time sharing with the children and the relative resources, expenses, and living standards of the two households.

 


 

In some instances the non-custodial parent may incur extraordinary travel related expenses in order to exercise court ordered visitation rights. To foster parental involvement with the children, the court may wish to consider such extraordinary expenses in determining the support order.

 


 

E. CHILD CARE CREDIT

 

 

The basic child support obligation set out in the guidelines includes the non-custodial parent's share of child care expenses. Child care expenses are not seen as a separate support item and responsibility for them resides with the custodial parent.

 

The reasonable cost of child care (costs as defined by 26 U.S.C. § 21, I.R.C. § 21) actually paid is to be subtracted from the custodial parent's gross income before the disregard formula is applied.

 


 

F. AGE OF THE CHILDREN

 

To reflect the costs of raising children, age has been broken down into three groups: 0-12, 13-18, and over 18. A single adjustment to the basic order should be made based on the age of the oldest child for whom support is to be ordered. The support order where the oldest child is 12 or under should be the basic support order according to the schedule. Where the oldest child is between the ages of 13 and 18, the order should be increased by 10 percent of the basic order amount. For cases involving children over the age of 18, to the extent permitted by the General Laws, the amount of the order, if any, will be left to the court's discretion.

 

 

Where the parties file an agreement with the court that allows for private payment between the parties, it is suggested that the incremental age issue be addressed in the agreement.

 


 

G. HEALTH INSURANCE, UNINSURED, AND EXTRAORDINARY MEDICAL EXPENSES

 

 

Health Insurance

 

 

When the court makes an order for child support, the court shall determine whether the obligor under the order has health insurance on a group plan available to him/her through an employer or organization or has health insurance or other health coverage available to him/her at a reasonable cost that may be extended to cover the child for whom support is ordered. When the court makes a determination that the obligor has such coverage, the court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of such child, unless the obligee already has provided such coverage for the child at a lesser cost (except for health insurance funded under public assistance programs), or has and prefers to continue such coverage irrespective of cost.

 


 

If family health coverage is to be provided by the obligor, the support order should be reduced by one half the cost of family coverage. It is the responsibility of the obligor under the support order who is seeking such a reduction in the order to produce proof satisfactory to the court of the existence of such family coverage under the plan, or no such reduction shall be allowed. However, there shall be no reduction if the obligor has a preexisting family health insurance policy which could be amended to name the additional dependents to the policy at no cost to the obligor. Should health insurance not be provided for any period for which it is ordered, the credit for the premium payment shall be revoked and the order shall be increased by the amount of the credit during the period of noncompliance.

 


 

If family health coverage is provided by the obligee, the support order should be increased by one half the cost of the coverage. It is the responsibility of the obligee who is seeking an increase in the order to produce proof satisfactory to the court of the existence of such family coverage under the plan, or no such increase shall be allowed. However, there shall be no increase if the obligee has a preexisting family health insurance policy which could be amended to name the additional dependents at no cost to the obligee. Should health insurance not be provided for any period for which it is ordered, the increase allowed for the premium payment shall be revoked and the order shall be decreased during the period when health insurance is not provided.

 


 

 Routine Uninsured Medical and Dental Expenses

 

The custodial parent shall be responsible for the payment of the first $100 per child per year for routine uninsured medical and dental expenses. For amounts above that limit, the court shall allocate costs on a case by case basis. No reduction in the child support order should be allowed.

 


 

Uninsured Extraordinary Medical and Dental Expenses

 

The payment of uninsured extraordinary medical and dental expenses incurred by the minor children, absent agreement of the parties, shall be treated on a case by case basis. (Example: orthodontia, psychological/psychiatric counseling, etc.) In such cases, where the court makes a determination that such medical and dental services are necessary and are in the best interests of the child, consideration toward a reduction in the child support order should be given.

 


 

H. ATTRIBUTION OF INCOME

 


 

If the court makes a determination that a party is earning substantially less than he or she could through reasonable effort, the court may consider potential earning capacity rather than actual earnings. In making this determination, the court shall take into consideration the education, training, and past employment history of the party. These standards are intended to be applied where a finding has been made that the party is capable of working and is unemployed, working part-time or is working a job, trade, or profession other than that for which he/she has been trained.

 

This determination is not intended to apply to a custodial parent with children who are under the age of six living in the home.

 


 

I. PRIOR ORDERS FOR SUPPORT

 


 

To the extent that prior orders for spousal and child support are actually being paid, the court should deduct those payments from the gross income before applying the formula to determine the child support order. This section applies only to orders for child support for children other than those who are the subject of the pending action.

 


 

J. EXPENSES OF SUBSEQUENT FAMILIES

 


 

In instances where the non-custodial parent has remarried and has children by a subsequent marriage, the court should examine such circumstances closely to determine in the allocation of available resources whether consideration beyond Part II, Section I (Prior Orders for Support) should be given when the custodial parent of children borne of the first marriage, or subsequent marriages appears before the court seeking a modification of the existing child support order. Expenses of a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order, but such expenses should not be considered a reason to decrease existing prior orders. In actions pursuant to G.L. c. 209C, this paragraph shall be construed to apply equally to children born out of wedlock.

 

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Contact an expert divorce attorney
 

 

At the Law Offices of Michael R. St. Louis, we are fully prepared to handle your divorce case. As a leading Boston divorce law firm, we can provide you with the direction and legal counsel you need in your divorce. Call our Law Offices today for your free consultation at 781-816-3950 or contact us online.

 


 

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