People settle their divorce and child custody cases, resolving many issues in the process. Whenever there are minor children involved, or even emancipated children up to the age of 23 who are dependent upon the child support recipient and domiciled with that parent, child support needs to be figured out. One issue that must be resolved is whether to adhere to the child support guidelines or deviate from them. When parties deviate, it’s not uncommon for the payor to later want to modify child support back down to the guidelines amount or the recipient to modify back up.

In nearly every case, the parties follow the Massachusetts child support guidelines. There are, however, reasons that parties might agree or a court may simply order child support deviating from the child support guidelines. When the parties agree to deviate from the guidelines, it is most commonly based on a reason that the court would otherwise rely upon in ordering a deviation.

Essentially, the deviation from the guidelines is utilized when there is something out of the ordinary justifying either more or less child support. To give you a flavor of the factors, I will provide a few do you here and give examples.

One factor would be that the children have special needs. For instance, in a case in which a child has autism, the child requires more frequent trips to the doctors, treating both physical and mental health more closely and consistently. There may be multiple therapists in that child’s life. The child may require an individual educational plan through the school system, potentially requiring additional professionals to stay involved. That child is likely to carry greater expenses and require more time from the parent with whom the child predominately resides. It makes logical sense that the child support should be higher to help pay for the added cost of raising that particular child.

Another example is when one parent has extraordinary travel expenses related to seeing the child. Perhaps the parent with whom the child primarily resides relocates to Western Massachusetts from Essex County, where the parties all resided together as a family unit at one point. The parent who remained behind now must travel two hours and 40 minutes each way to see his child. That parent must give up employment opportunities, pay for additional travel costs, and potentially would need to arrange for a hotel in Western Massachusetts to enjoy his parenting time. Deviating from the guidelines to account for these added expenses would be appropriate under the law.

Sometimes, however, the parties simply agree that child support will be above guidelines for another reason altogether. Say, for instance, that alimony was taken off the table and waived by both parties, and in exchange the father agreed to pay above guidelines child-support due to the financial circumstances of the mother. Agreement of the parties is another basis for deviation and may be appropriate in that situation.

All of this brings us to the issue of modification of child support down the road. Say you are the party who has been paying support above guidelines and you feel a modification down to the guidelines amount is appropriate. Generally speaking, child support orders are required to be modified to the amount required by the child support guidelines if there is inconsistency with the current amount. However, if the parties originally deviated from the guidelines, the court must consider three additional factors. Further, the guidelines require the support to be modified back to the guidelines amount unless all three of these factors are still true.

The first factor is whether the facts that gave rise to the deviation still exist. Clearly, in our first example, the child with autism would still have autism. However, in our second example perhaps the father moved to western Massachusetts and no longer has the travel expenses. Or, in our third example, perhaps the financial circumstances of the parties have significantly changed and the recipient is no longer in a difficult financial situation requiring additional support. In our first example, things haven’t changed, so this factor would not be a basis to adjust child support guidelines. In our second factor, things have in fact changed and an adjustment to guidelines is appropriate. This is also true in the third example, where the financial resources of the recipient parent have improved, so that the parent no longer needs additional support–in fact, getting the support would essentially constitute a windfall.

The next factor is whether the continued deviation is in the child’s best interest. This is one of those factors that provides great discretion to the probate and family judge. I believe the best argument to be made here is one that supports an equal standard of living for the child in both households. If the child benefits from comparable living situations and resources in both homes, and will continue to do so when support is paid pursuant to the guidelines, I believe the deviation is no longer appropriate pursuant to this prong. However, if adjusting to the guidelines amount creates some inequality for the child from one house to the other, the stronger argument on this factor is to continue the deviation.

The third factor to consider is whether the amount resulting from the application of the guidelines would be unjust or inappropriate under the circumstances. Again, this is clearly another factor that provides great discretion to the court. The argument here is very fact-specific. Reasonable arguments about justice and inappropriateness can likely be made on both sides of the table. However, this is a good time to point out that it is the recipient’s burden to prove that there would be some sort of injustice if the guidelines amount was ordered. When almost everyone gets the guidelines amount of child support, winning on this argument is difficult.

All in all, the guidelines and supporting case law define this area of law, and the analysis is very fact-specific. If you are paying child support above guidelines, or if you simply have a case in which you or the other parent are challenging whether a deviation from the child support guidelines should exist, the best thing to do is meet with a competent divorce and family law lawyer to discuss the facts of your case and how this law applies. We offer free consultations which are always confidential. To schedule one today, call 978-225-9030 during normal business hours were complete the contact form on our website and we will contact you when we are back in the office.