Child Support modifications



When there is no independent agreement between the parties and the child support order is different from the amount of support the Guidelines require, the court must modify the order unless it finds:


• that there are circumstances that make the Guidelines amount unjust or inappropriate; or


• that the existing child support order is consistent with the child’s best interest. G.L. c. 208, § 28; G.L. c. 209, § 37; G.L. c. 209C, § 20.







Whether or not a modification in the amount of child support is necessary, the court must modify a child support order to include health insurance coverage for the child if it is necessary and available to a parent at a reasonable cost. G.L. c. 208, § 28; G.L. c. 209, § 37; G.L. c. 209C, § 20. The law concerning children born out of wedlock also states that a court may modify the judgment of support whenever a substantial change in the circumstances of the parties or the child has occurred. G.L. c. 209C, § 20. The Guidelines themselves provide a different modification standard. When there is no independent agreement between the parties, the Guidelines allow a court to modify child support when there is a difference of 20 percent or more between a current order (the order a party seeks to modify) that was calculated using the Guidelines and a proposed new order calculated under the Guidelines.



When a court did not use the Guidelines to set the current order, the Guidelines require that there must be a change in the circumstances that had originally allowed the court to “rebut” (that is, disregard) the Guidelines if the order is to be modified. Preamble to Child Support Guidelines. Crowe v. Fung , 45 Mass. App. Ct. 673 (1998). The court stated that the standard requiring only a discrepancy between a current order and the guidelines applied to children of parents who were not married to each other, but did not apply to children whose parents were divorced. Crowe v. Fung, 45 Mass. App. Ct. at 677–78 & n.3. The case upheld an order increasing weekly child support payments, and held that once a judge finds a change in circumstances, he or she may rely on some of the circumstances that existed both at the time of the current order and at the time of modification in determining ability to pay support.



Practice Note


It is possible that a court may increase a child support order for a child of parents who are not married to each other even without a 20 percent difference or a change in circumstances.



 First, one purpose of the guidelines is “[t]o protect a subsistence level of income at the low end of the income range.” Crowe v. Fung, 45 Mass. App. Ct. at 677–78 (citing Preamble to Child Support Guidelines). Also, Massachusetts law states that children born to parents who are not married to each other are entitled to the same rights and protections of the law as all other children (G.L. c. 209C, § 1),so it might not be fair to allow a child of divorced parents to be entitled to more support than a child of parents who did not marry each other.



 Second, the law relating to modification of child support for children born out of wedlock includes the same language as the law pertaining to children of divorced parents, namely that “[i]n furtherance of the public policy that dependent children be maintained as completely as possible from the resources of their parents,” a court shall modify an order “if there is an inconsistency” between an existing order and the Guidelines amount, though the law pertaining to children born out of wedlock also contains a contradictory requirement of a “substantial change in circumstances.” G.L. c. 209C, § 20. Future law may resolve or clarify these variations in standards.



The court may also modify a child support order if there has been a material change in circumstances that would not be reflected by application of the Guidelines—for example, a child’s development of special needs that require expensive treatment.  However, a court may also consider the changed circumstances of a person defending against an increase in child support—for example, when someone who pays child support has, since the date of the last order, assumed responsibilities through another relationship in addition to his or her children. Child Support Guidelines, II. J. (children of a subsequent marriage); Canning v. Juskalian, 33 Mass. App. Ct. 202 (1992) (in modification action, court had discretion not to apply Guidelines where father had visitation for five weeks in the summer and one week for Christmas, and mother had moved across country so that father had to incur costs to effectuate his visitation). Again, the court will not generally allow a modification on the basis of a voluntary change by the person seeking modification. Child support orders can be modified by agreement of the parties. The agreed-upon amount must be consistent with the Child Support Guidelines. This is done by filing a joint petition for modification of child support judgment. The forms required for the joint petition are available at the Probate and Family Court.  Along with the petition, the parties must file complete and accurate financial statements with W-2s




Child Support Arrearage



Generally speaking, in a modification action, child support arrearage cannot be retroactively modified. G.L. c. 119A, § 13(a). However, in limited circumstances, the language in a separation agreement may be read by the court as conferring an ability to modify child support arrearage. See Hamilton v. Pappalardo , 42 Mass. App. Ct. 471 (1997) (where language in a merged separation agreement stating the parties have intentionally omitted any description of further liability for the education, tuition, room, boarding, and books of their children, with the stipulation that if the parties could not agree, the court shall adjudicate such liability, the Trial Court’s jurisdiction to interpret and enforce the agreement should be determined as much by fairness and equity as by date of filing).




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