Under What Circumstances is the Preference of the Child Considered in Custody Disputes?

Tim is twelve. His parents are getting a divorce, and while Tim is coping well with the changes in his life, he is concerned about the possibility of living with his mother. Tim has expressed a clear preference for staying with his father, who lives in the town where Tim goes to school. While Tim loves his mother and wants to see her as much as possible, he prefers not to stay with her every day. Will Tim’s preferences be considered during the divorce?

Legal and physical custody of Tim is at issue here. While the term physical custody refers to the child living or staying with one or both parents, the term legal custody denotes the parent’s ability to make lasting legal decisions on the child’s behalf. Physical custody refers to the child’s primary residence and the parent’s ability to make day-to-day decisions. Legal custody, on the other hand, refers to the parent’s involvement in “decisions regarding the child’s welfare in matters of education, medical care, emotional, moral and religious development.”[1]

In order to resolve issues of custody, the court will determine what is in the best interests of the child. The court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child. In determining what is in the best interests of the child, the court considers many factors. One of those factors, in some cases, is the expressed preferences of the child.

In Massachusetts, the territory of children’s preferences as a consideration in custody disputes must be tread carefully. The concern, of course, lies in reliability: the courts are concerned that the expression of a child’s preference (particularly when the child is small) may be unreliable, based on clouded judgment, or perhaps even manipulated, whether by one of the parties or others present in the child’s life. It is not difficult to imagine that statements such as “Kids belong with their mothers,” or “Your father’s house is so much cooler than your mother’s” might work to sway the judgment of an impressionable child in expressing a preference for living with one parent over the other.

Typically, the Court will pay more attention to the child’s preferences in the case of older children, in context of the age and maturity of the child. In one case, the Court considered the preferences of a ten-year-old boy to live with his father in Germany;[2] in another, it considered the preferences of an eleven-year old to stay with his father.[3] It is important to note that the preferences of the child will not necessarily be the decisive factor, particularly if other factors indicate that it is not in the best interests of the child to order custody according to what the child prefers.

If you have any questions about division custody issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.


[1] Mass. Gen. Laws ch. 208 s. 31

[2] Bak v. Bak, 24 Mass. App. Ct. 608 (1987).

[3] Custody of Vaughn, 422 Mass. 590 (1996).

Case of the Week: Deviating from the Child Support Guidelines

It is pretty well-established in Massachusetts that the Massachusetts Uniform Child Support Guidelines govern the amount of child support to be ordered in most cases. Deviation from the guidelines is not taken lightly and not ordered without justification. To what extent might deviation be ordered when the payor of child support is incarcerated? A recent decision of the Appeals Court answered that question.

In P.F. v. Department of Revenue,[1] an incarcerated father filed a complaint for modification of his child support payment, asking the court for a reduction. The father cited his inability to pay child support while he was incarcerated. The father’s conviction resulted from his indecent assault and battery on his daughter, for whom he was paying child support. At the time of the appellate arguments, the father was undergoing evaluation for commitment as a sexually dangerous person.

The Probate and Family Court denied the modification request, holding that father’s loss of employment and loss of income were foreseeable consequences of his conviction. The judge specifically considered the father’s crime in that decision, essentially reasoning that the father acted voluntarily when he abused his daughter, and that he should have foreseen the consequences, including his loss of income. The trial judge chose to attribute income to the father, even though no such income existed.

The Appeals Court disagreed and held that the trial judge abused his discretion. In order for a deviation from the amount of support dictated by the guidelines, the Court explained, there must be a clear finding that the guidelines amount is unjust or inappropriate; the facts of the case must justify departure from the guidelines; and the departure must be consistent with the “best interests of the child” standard. In regards to attribution of income, the Court noted that such attribution is appropriate where the payor either has substantial assets or where the payor is capable of working yet is unemployed or underemployed. Those situations did not occur here, the Appeals Court said: “a payor serving a criminal sentence cannot obtain gainful employment through ‘reasonable efforts’ while he is incarcerated. Accordingly, it was not a proper exercise of the judge’s discretion to attribute income to the incarcerated father based on his prior earning capacity.”[2]

The Appeals Court then discussed the trial judge’s consideration of the crime committed by the father as another reason not to modify child support payments. “The guidelines identify thirteen specific circumstances that a judge may consider when determining whether deviation is appropriate,” the Court noted. “Although the list is not exhaustive, there is nothing in the guidelines to suggest that the judge may consider the nature of an incarcerated payor’s crime as a factor warranting upward deviation.” [3] In fact, the Court pointed out, the guidelines specifically provide that a downward deviation may be made in the case of an incarcerated payor. The Court vacated the order and remanded it to the trial court for further proceedings.

[1] P.F. v. Department of Revenue, No. 15-P-771 (May  12, 2016-December 6, 2016).

[2] Id., at 8.

[3] Id., at 9-10.

What are the Tax Implications of a Divorce, Specifically Child Support and Alimony?

For most of us, taxes are generally unavoidable.  Many events in life impact what taxes we pay and divorce is one of them.  In fact, there are various issues in a divorce with potential tax implications and today we’ll focus on one of the main categories:  support, meaning child support and alimony. Just as people benefit to a greater degree with tax planning, people who don’t consider tax implications when resolving their divorce are more likely to pay higher taxes. The best practice is to have a solid understanding of the taxes associated with the various elements of a divorce, prior to settling for divorce case.

Overview of Divorce Issues Impacting Tax Liability?  Tax issues fall into three main categories in a divorce. The first is the issue of support, including alimony and child support, which we’ll cover more below.  The second relates to property transfers, which ordinarily occur through equitable distribution. The third issue includes the various filing statuses, credits and exemptions that one or both parties may claim when filing their taxes.

Support Taxation: Alimony and Child Support.  Alimony and child support are two types of support that one former spouse may pay the other. Logically, child-support is only available when there are dependent children. Conceptually, the child-support is actually paid by both parents for the benefit of the children, with one party paying some support through the other parent so that the children’s needs our comparably met in each household.  Consider that that “child support” is the money used to pay the expenses of the children.  You pay much of these expenses yourself when the children are with you.  But, when we discuss child support, we are usually referring to the portion that’s paid by one parent to the other.  Because child-support is viewed as a benefit to the children and not to the parents, child-support is post-tax money. Meaning, there is no income tax deduction for paying child support and the parent who receives the support does not consider it income for income tax purposes.

Alimony, on the other hand, is for a different purpose altogether. The purpose of alimony is for one former supposed to pay the other money on an ongoing basis so that the spouse receiving the support may live a lifestyle comparable to that which was enjoyed during the marriage. The idea is that both parties can live a lifestyle comparable to that which was enjoyed during the marriage because the former spouse paying the alimony still has the ability to pay the support without sacrificing his or her lifestyle.  Because alimony is viewed more as an augmentation to income, the person paying alimony may deduct it from his or her income tax and the person receiving alimony will treat it as ordinary income for tax purposes.  There is ordinarily a net tax benefit when alimony is paid in a case because the party paying the alimony is typically in a higher tax bracket than the party receiving alimony. Accordingly, between the two former spouses, there is ordinarily less tax paid overall.

Now, in many cases, particularly on a temporary basis, an award of support may be “unallocated”.  That is, there may be one total support order, obligating one spouse to pay unallocated, sometimes called undifferentiated, support. In those orders, it may not be clear which portion of the support order accounts for child support and which portion of the order accounts for alimony.  Is in on allocated support order deductible like alimony or is it after-tax dollars as is the case with child support? The answer is that when there is an unallocated award of support, the entire amount maybe deductible to the party paying it and taxable to the recipient. However, if the portion that accounts for child support or alimony can be identified and separated out, the different tax treatment should be applied to each portion.

Clearly the tax implications of a support order, or in a case generally, are relevant and important to settlement.  A party doing the math to determine if he or she will be able to survive with a proposed support figure can’t accurately come to a conclusion without considering the resulting income taxes.  Accordingly, it’s really crucial to do the math and even better to have a divorce lawyer who understands how this works and can do the calculations.  The first step in any such analysis is to schedule an attorney consultation.  To schedule your free attorney consultation, call our office today at 978-225-9030 during regular business hours or complete a contact form here and we’ll reach out to you at our first opportunity.

Can Income of a Significant Other be Considered when Calculating Child Support?

The probate and Family Court are very busy places. Each judge has about 1,000 cases and it only takes sitting in a court room and observing the various cases, with their arguments and emails and text messages and emotional outcry, to see that in what might be complex situations with various complicated legal issues, judges have little time to consider the facts and render a fair and equitable decision.  Like all of us, judges are only human and make mistakes too.  Fortunately, when a mistake is appealed, we all learn something about this area of divorce law.

Today we are talking about the recent decision of Frost-Stuart v. Stuart.  The court discusses two main issues, but the first is an alimony issue that’s been resolved several times over and only missed by this judge due to the timing of the controlling decisions.  So, first, we’ll deal with that alimony issue and then move on to the child support issue that is the subject of this article.  Here, the appeals court revisited the issue of alimony modification and which standard applies, when the original order was issued before the enactment of the Alimony Reform Act of 2011. The second issue relates to attribution of income to a parent and a child support calculation. The court then goes on to deal with multiple contempt issues, all of which they send back to the trial court based on the additional work the trial judge must complete, in order to resolve issues one and two above.

What standard applies in a Massachusetts alimony modification when the original order issued in 2010?  Massachusetts alimony law changed dramatically upon the enactment of the Alimony Reform Act of 2011.  Among other things, the act established cohabitation as a basis to terminate palimony.  Essentially, the act provides that when the recipient spouse resides with another individual for three months or longer, such cohabitation maybe grounds to modify, reduce, or terminate alimony.

After the act became effective, there was a flurry of filings of actions to terminate alimony for cases that had been on the books for years and years.  The basis of those cases was similar, brought by the payers of alimony who wanted their obligations to stop based on the new law.

Three pivotal cases were then decided, clarifying the law.  We have discussed each of those cases including the one cited in this case, the Chin case, so we won’t go into great detail again here. The resulting law is, if your alimony case was originally decided before the new law came into effect, the old standard of proving there has been a substantial, material change in circumstances justifying modification down or termination of the alimony order is the standard which applies.  Unfortunately, as the appeals court noted in this opinion, because of the timing of this decision on the trial court level, the judge did not have the benefit of the Chin opinion when issuing his ruling. Accordingly, the judge made the same mistake as in the other cases, terminating alimony based on the new statute.  Of course, as in the other cases, this court reversed and remanded to the trial court to fix it’s error.

Can the Court consider the income of the recipient’s cohabitant, such as boyfriend/girlfriend or new spouse, in determining the recipient’s income for the purpose of calculating child support?  The second issue presented in escape has to do with the attribution of income in a child support determination. To give you a sense of the background of this case, the father is very well off, employed as a portfolio manager at an investment management company, making over $600,000 a year. Mother is unemployed and has been for a long time. In determining child support in that case, the father argued that the mother should be attributed income. Attribution of income means that the court essentially pretends that a party has a greater income than he or she truly has. Under Massachusetts law, if a parent earning less than he or she could through reasonable effort, the court can consider what the person could make when it calculates child support.

In this case, the judge attributed to her annual earnings of $16,682, based on the minimum wage, considering that she is unemployed. Interestingly, the judge also attributed an additional annual contribution of $27,000 which represented the entirety of her boyfriend’s annual Social Security Disability Income (SSDI) benefits. Basically, mother moved in with her boyfriend whose only income was SSDI.  The court counted all of the boyfriend’s income as though it where income of the mother. The appeals court reversed.

While the appeals Court found the trial judge’s analysis as it relates to the minimum wage attribution as acceptable, the Court found that without other findings, it would be improper to attribute the income of the boyfriend to the Mother. This is really interesting though, because the Court really left open the door as to whether the boyfriend’s SSDI could be attributed to the Mother as income in certain circumstances.

The Court went on to list several facts which would help in the analysis in such a situation including the lack of an obligation of the mother’s boyfriend to support the children, the manner in which the mother’s and children’s lifestyles are altered by the SSDI, discretion of the mother’s boyfriend in paying those funds, and the manner in which the mother would support her household if she did not receive those funds. That portion of the judgment was reversed, but it gave us the framework by which to use in analyzing such a situation in future cases.

Yet another case on the Alimony Reform Act and an interesting consideration of what income should be considered attributable in a child-support calculation, including specifically the benefit of income received from a new significant other. These issues can be complicated and I recommend if you’re dealing with them, to consult with an experienced divorce lawyer. To schedule a free consultation with our office, call 978-225-9030 during regular business hours for complete a contact form here and we will get back to you at our earliest opportunity.

Am I Required to Continue to Pay Child Support When my Child Heads off to College?

In the state of Massachusetts, the short answer is probably but not necessarily. Under Massachusetts General Laws Chapter 208, Section 28, parents have an ongoing duty to support a child who is at least 18 but not yet 21 if the child maintains a legal domicile with a parent and is principally dependent upon that parent for support.  Even after a child turns 21, if the child has a legal domicile with a parent, remains principally dependent upon a parent for support and is enrolled in an educational program, a parent may be ordered to pay support until the age of 23.  Of note, an educational program does not include graduate work.

This may seem counter-intuitive given that the child is no longer physically present in the home of the custodial parent once he or she heads off to college.  The state of Massachusetts has decided, however, that a child is still in need of support when they are away at college and a custodial parent still requires support in order to maintain a home for the child to return during school breaks as well as provide the support that a child of this age may require.

To break this down a bit further, a child can be “primarily domiciled” with a parent even if a child is living on campus away from home during the school year and possibly even in the summer.  In Massachusetts, “domicile” is similar to a person’s legal residence and is defined by a number of factors including but not limited to, driver’s license address, address on tax returns, address for purpose of voter registration, location of legal mailing address, and where he or she intends to return while school is not in session or while on breaks.  So even if your child is not living with a custodial parent for the majority of the time while he or she is in college, domicile for purposes of child support most likely will be with the parent who had primary physical custody when the child left for college.

In determining whether a child is principally dependent on a parent with whom they maintain a legal domicile, the court looks to economic as well as non-economic support.  Support is defined not only in terms of direct financial support, but also in less concrete terms such as emotional support, assistance with decision making, and a parent’s involvement with the child’s well-being.

While it is true that the custodial parent may still be entitled to child support, the amount of support may be amended based on each parent’s contribution to college costs.  Courts can order parents to contribute towards college costs as well as modify the amount of child support if a parent is contributing towards college costs.  Court’s also have more discretion as to the amount of support once the children have reached the age of 18, so making equitable and “fairness” arguments become more effective.  The new child support guidelines promulgated August 1, 2013 now require that a judge take into consideration each parent’s contributions and ability to contribute to college costs when making an award of child support.  So while a parent may be required to continue to pay child support for their college age child, it may be worthwhile for the non-custodial parent to seek a modification as to the amount of child support they are required to pay if they are contributing a significant amount to a child’s college education and expenses.

If you are paying child support for a child who has gone off the college and the child is either not domiciled with the recipient of the support or not getting the same level of emotional or financial support from that parent, or if you’re contributing to college expenses, you may have a good case to modify child support or eliminate it altogether.  To get a sense of your legal rights, I recommend you speak with an experienced divorce lawyer.  To schedule a free consultation today, during which we’d do a free initial assessment of your child support case, call 978-225-9030 during regular business hours.  Or, complete and submit the contact form found here and we’ll contact you back at our earliest opportunity.

Can I Lower My child Support if I deviated from the Guidelines (Agreed to Pay More or Less)?

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 whether to deviate. 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 would be that the children have special needs. Imagine 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 IEP 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 but the child support should be higher to help pay for the added cost of raising that particular child.

Another example would be 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, must 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 party simply agree that child support will be above guidelines for another reason all together. Say, for instance, 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.

Well, 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 and 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 in the financial resources of the recipient parent have improved so that the parent no longer needs additional support and getting the support would essentially be 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 and 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… Clearly another factor that provides great discretion to the court. The argument here is very fact specific. Reasonable arguments about justice inappropriateness can likely be made on both sides of the table. However, this is a good time to point out that it is the recipients 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.