Divorce Law Blog

Posts Tagged ‘Child support’

Most states have child support guidelines. These are formulas that the courts of a particular state will use to determine a child support amount. While the elements of the formula will vary by state, the most important factors are the incomes of the parties and number of children. The formulas will usually also include some type of adjustment for health insurance, child care costs and sometimes other expenses.

Judges are usually empowered with discretion to vary from these formulas. Depending upon the particular judge and jurisdiction, this may or may not happen. If you think that your particular situation merits a variance from the formula amount, you should thoroughly discuss the matter with your attorney and decide whether it is worthwhile to present your arguments to the Court. While the Court may not grant your entire request, the Judge may make some type of favorable adjustment to the amount indicated by the formula.

Common arguments to vary child support from state child support guidelines include tax issues, unreported income, large and unusual business expenses, prior child support orders, large and unusual personal expenses of a parent, children’s educational expenses, time spent at college, health and medical issues, other ways in which the non-custodial parent is supporting the child(ren), the amount of time the child(ren) are in the care of a particular parent, unusual travel expenses for visitation with the children, imputation of income; and the interplay of alimony and child support. Judges also usually have the discretion to determine who can claim any income tax exemptions and/or tax credits associated with the children (or at least adjust the child support amount to compensate for these exemptions and/or tax credits).

An experienced divorce attorney will be able to evaluate your particular situation, tell you the particular tendenices of an individual judge and determine what types of arguments might be favorably received by the Court.

Since the economic downturn of 2008, many have reported that the divorce rate is slightly down because of the economy. This is true. However, the Courts and attorneys that practice family law are busier than ever because people are reopening old support orders and filing for contempts as jobs are lost, incomes decrease, and asset values decline. Additionally, cases are being fought and litigated much harder and more aggressively as parties fight over an ever decreasing pie. One of the effects of the changing economy was the Massachusetts 2011 Act Reforming Alimony in the Commonwealth (read more).

For some people (usually men), this is a great time to file for divorce. If you are already paying alimony or child support you might even consider filing for a modification. Alimony and child support orders are almost always based on current income. If you are unemployed or your income has decreased substantially, alimony and/or child support should reflect this and you should be paying less. Many people fail to have the Courts reduce their support obligation when they lose their jobs or their income decreases (it doesn’t automatically go down – you must go back to Court!) and end up with large arrearages. If your income subsequently increases, the party receiving the support will have to refile and bring you back to court to increase the support. Many (if not most) support recipients fail to do this. They usually don’t even know that the income of the payor has increased! I have seen many cases where support orders are based on incomes that are a fraction of the payor’s current income.

This becomes especially important in alimony cases. Depending upon the judge, alimony may be particularly difficult to change. If the alimony order was based on a period during which the payor’s income was low, it may be very difficult for the recipient spouse to obtain an increase.

Lastly, the value of assets that are usually retained by men in property settlements (such as a family business or stock options) may be temporarily depressed in a slow economy and therefore the wife would receive a smaller share of other assets to accomplish property division.

As marriage equality continues to proceed in the USA, and especially here in Massachusetts, the first state to legalize same sex in the nation, many issues previously considered only as mother/father, heterosexual in nature now must be considered from the perspective of same sex couples. This came to light as regards the custody of a non-biological, same sex parent in the case of Della Corte v. Ramirez a little over two years ago. In this case, the biological mother, Gabriella Della Corte, argued that her ex-spouse had no parental or custodial rights because she was not the father of the child, who was born through artificial insemination. Angelica Ramirez, her spouse, argued that she indeed was the parent of the child and should be granted custody.

The court found in favor of Ramirez, granting her joint custody of the child, stating in their ruling that Ramirez was the legal parent of the minor child. This sets a precedent in Massachusetts, establishing that as regards paternity, custody, and visitation, there is and should be no difference between heterosexual and same sex parents. This follows Massachusetts law that, regardless of gender, marriage carries the same rights for both parties. Therefore all laws which reference “husbands” or “wives” to be interpreted simply as “spouses,” and that Massachusetts family court proceedings should make no distinction based upon the gender of the parties, but rather paternity, custodial, and visitation rulings should solely reflect the best interests of the children involved.

We all know the expression, nothing is inevitable but death and taxes. Federal and state income taxes are not only inevitable, but complicated by a divorce proceeding. If you and your spouse are in the process of getting divorced, the question arises, how should you file your taxes? According to the IRS, so long as you are married, you must file as married. The choice is whether to file jointly or separately. One spouse cannot force the other to file jointly.

But the situation is trickier once the divorce has been granted. Assume that you were divorced in December. Can you then file jointly for the year, during most of which you were married? No, you must file an individual return for the entire year. The IRS is clear on this, stating in Publication 504 that one is considered to be single or unmarried for the entire year even if divorce was granted on December 31. What are the implications of this rule? When a married couple files a joint return, both spouses are held jointly and individually liable for all interest and/or penalties due on that joint return. It does not matter who earned the income; a spouse who did not earn any income may still be held liable for all due taxes on the other spouse’s earned income. Your Separation Agreement may even specify that your former spouse will be liable for any taxes or penalties due on your joint return, but the IRS under Publication 504 may still hold both parties jointly and individually liable for any amount owed.

What about claiming your child(ren) as dependent(s) on your return after the divorce becomes effective? Only one parent may claim dependency of a child, and there are any number of factors which play into this determination. Child dependency is normally declared in the Separation Agreement. If you and your spouse have more than one child, they may be divided between the households. Your Separation Agreement may specify alternating years as the custodial parent, so that one year you may claim your child, and the next year your ex can claim that child. According to the IRS definition, the custodial parent is the parent with whom the child lived with for a longer period of time during the year, counted by number of nights spent in that parent’s care. What if a child lived an equal length of time with both parents? In such a case, the IRS guidelines state that the parent with the higher adjusted gross income can claim the child as an exemption.

There are many other factors, including the language of the Separation Agreement, as for instance if the Separation Agreement declares that the “noncustodial” parent is supposed to claim the child on his or her tax return? In order to satisfy such an arrangement, the child dependency exemption has to be transferred from the “custodial” parent to the “noncustodial” parent, requiring that several conditions be met for the IRS to accept the change. Obviously, such details need to be worked out in advance with the advice and guidance of an experienced divorce attorney.

Federal IV-D regulations require uniform child support guidelines of every state, and 45 C.F.R. § 302.56 further requires that each state review those guidelines every four years. The Massachusetts Trial Court’s revised Massachusetts Child Support Guidelines, effective August 1, 2013, were recently announced and are available online at the Massachusetts Department of Revenue’s website, as well as the Child Support Guidelines Worksheet. They are also available on my website: Guidelines and Worksheet.

According to the Massachusetts Trial Court’s press release dated June 20, 2013, Chief Justice of the Trial Court Robert A. Mulligan stated that the revised Child Support Guidelines were based on the comprehensive review by the Child Support Guidelines Task Force he appointed in 2012. Probate and Family Court Chief Justice Paula M. Carey chaired the Task Force that conducted the review. Trial Court judges use the Child Support Guidelines “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.”

Summary of Key Changes to the Existing Guidelines

The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes. Some are minor, while others represent new or modified provisions. The most significant include:
While the 2012 Child Support Guidelines Task Force recommended a number of both minor and new or modified provisions, the most significant changes include the following items (list quoted from the Trail Court press release):

• Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
• Availability of employment at the attributed income level must be considered in attribution of income cases.
• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.
• Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
• Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
• A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.
• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate. While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).
• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

Questions concerning these changes or any provisions of the Massachusetts Child Support Guidelines should be discussed with an experience divorce attorney.

After a divorce, there are often stresses in a child’s life which an adult may overlook. One of the chief stresses can be the transition from your home to your ex-spouse’s home, whatever the time interval (every few days, weekends, several weeks). This is a constant disruption to a child’s life, and a persistent reminder of the family breakup. So how to best assist your children during these moves?

We can split these transitions into two broad areas: When your child is dropped off, and when your child is picked up. You and your ex should agree upon these basic guidelines to help your child adjust to the changes.

As we see played out in TV and movie dramas over and over, parents may have a difficult time in letting go at the appointed hour. But remember this is about the child, not the parents. So ease this time by adhering to the schedule, departing and delivering your child on time as agreed. Remind your child a day or two before the move so they have time to prepare and be ready for the change. Help them pack, including a favorite toy or game, outfit, or other items that are familiar and comforting. Do not wait until the last minute and rush packing, but be ready well in advance. If at all possibile, drop off your child, rather than having your spouse pick them up, so that you avoid the risk of disrupting some special moment or connection.

When your child comes back from your spouse, again, it’s better that your spouse drop the child off rather than you go to pick the child up. This way your child gets to complete their time with their other parent without interruption. Ask your child what they want to do: spend some intimate time with you doing some favorite activity like reading, cooking or playing; run out to play with friends they’ve missed; or settle into being home with the TV and pets. Give them time and space if they need it, but stay nearby and attentive. Remember that children like routine and patterns, which give them a sense of safety and wellbeing, so establish a “return routine” such as game playing, visiting the playground, or serving a favorite dinner which your child can help prepare.

Watch for signs of stress and anxiety. Some children will adjust to these changes better than others (with much depending on how the parents act and react), so if your child shows any distress or anxious behavior, consider with your ex the benefits of counseling for your child.

We all know that divorce is one of the hardest experiences in life, especially for young children who cannot understand why mommy and daddy are suddenly separated and their family life torn asunder. There are altogether too few resources to help children adjust to these drastic changes, although more are appearing each year. Sesame Street now offers a Divorce Toolkit for Parents and Children which may provide some valuable assistance for you and your young family,entitled Little Children, Big Challenges: Divorce.

The Toolkit includes components for Caregivers and Families, a Storybook, Songs, Downloads, and Videos. You might want to review these components yourself or with your spouse before presenting them to the kids. Simple activities such as a divorce coloring book can help your children adjust in this trying time.

You have divorced and the court has determined child support and visitation/parenting rights and obligations. Subsequently your company relocates your job outside of Massachusetts. If you keep your job and relocated out of state, your available parenting time will be reduced; however, if you quit your job to remain in Massachusetts, you will at least temporarily be unable to fulfill your child support obligations due to the reduction in your income. What options exist and what is your best decision, to move or quit your current job?

First of all, such circumstances require the consultation of an experienced divorce attorney who can weigh the considerations and legal obligations and help you make the best decision. In large part, this will be determined by the exact language of the court’s order regarding your obligations and whether a modification of the divorce order would be appropriate and available to you. Assuming this goes in your favor, you can then decide how important it is to you and to your children to remain nearby for more frequent visitation.

You will need to file a Notice of Intent to Relocate with the court prior to your move if you do decide to keep your job and relocate. You will continue to be entitled to parenting time in accordance with child custody laws under the section when distance is a factor, although distance will limit the actual amount of time you can spend with your children.

Under such circumstances, your notice to relocate will need to include a statement as to the impact of the relocation on your parenting time and any changes you propose for exercising parenting time.

There are generally two types of child custody — legal custody and physical custody. Legal custody refers to whomever makes major life decisions for the child (usually health, educational and religious decisions, although is is important to note that that, without the prior permission of the other parent or court, even a parent with sole legal custody can’t remove the child from Massachusetts permanently). Physical custody refers to whomever has the child “physically” on a day-to-day basis. One issue that frequently arises is that of joint physical custody, where custody of the child is shared by both parents. This involves many aspects, such as visitation vs parenting plans and whether joint physical custody is beneficial or detrimental to the child.

Commonly, both parents will seek sole physical custody during a separation or divorce, and the court must decide what is in the best interest of the children. A compromise solution would be for the parents to settle for joint physical custody, which typically means the child will spend an equal time with each parent, perhaps several weeks or months at a time with each parent. The pro argument goes that this is beneficial for the child because the child gets to spend equal time with each parent, thereby receiving more balanced nurturing. However, the con argument is that this is ultimately detrimental and disruptive to the child’s well-being, as the child never has the opportunity to settle into a single home with either parent, but is constantly shuttled back and forth, thereby having no sense of stability in his or her young life. Thus the court must decide in favor of what is in the best interest of the child.

Generally, the court will seek to keep siblings together and assign sole custody to one “custodial” parent, with visitation rights extended to the other, “noncustodial” parent, or the modern version of “a parently plan.” These rights may include the child spending several hours, weekends or some vacation time with the noncustodial parent. If there is any concern over the child’s safety with the noncustodial parent, supervised visitation may be ordered.

Massachusetts child custody laws allow shared physical custody, or co-parenting if the co-parents can arrive at a mutual agreement outside of court to continue to raise their child together with some type of joint physical custody arrangement. This arrangement must be submitted in detail to the court for review, at which point the court may approve the co-parenting plan as submitted, or modify the plan prior to approval. The details included in the co-parenting plan cover issues such as how custodial time will be split between the co-parents and how expenses will be split. If the co-parents are not able to reach an agreement on a custody the Massachusetts child custody laws and courts will determine issues of custody, visitation, and support in accordance with the best interests of the child.