2017 Massachusetts Child Support Guidelines

2017 Massachusetts Child Support Guidelines

Every four years, the Massachusetts child support guidelines task force assesses the child support guidelines, makes recommended changes, collects comments from the public, revises further, and then presents them to the Chief Justice of the Trial Court, who signs them into application, typically going into effect on a specific future date. This process has just completed, with the new 2017 Massachusetts Child Support Guidelines going into effect on September 15, 2017. We’ve dived in since they were released yesterday and here is our initial commentary, with links to the guidelines and supporting materials on mass.gov. Enjoy and feel free to submit comments below.

The 2017 Massachusetts Child Support Guidelines & Parenting Time

The 2013 Massachusetts Child Support Guidelines introduced, for the first time, an intermediate calculation for child support, to be used in circumstances where the “parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%.” This intermediate calculation averaged the base child support guidelines calculation as if one parent was with the child or children approximately two-thirds of the time, with the calculation if the child or children spent approximately equal time with both parents.

The 2017 Massachusetts Guidelines, effective September 15, 2017, eliminates that intermediate calculation, and in its commentary, explains why in somewhat scathing terms:

“The Task Force agreed that the provision relating to these circumstances needed to be eliminated. The Task Force considered public comment, attorney and judicial experience, the 2008 Report of the Child Support Guidelines Task Force, and the Final Report of the 2012 Task Force when making this determination. The 2012 change [to create the intermediate calculation] increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.”
(emphasis added).

The 2017 Guidelines leave two methods through which child support should be calculated:

1. Basic Calculation – the basic calculation presumes that the children have a primary residence with one parent and are spending approximately one-third of the time with the other parent. There is a rebuttable presumption that the child support calculation should be the child support order.

2. Cross Guidelines – “[w]here two parents expect to or do share equally, or approximately equally, the financial responsibility and parenting time for the children, the child support order shall be determined by calculating the guidelines worksheet twice, first with one parent as the recipient, and second with the other parent as the recipient.” In short, calculate child support both ways, and the difference is the presumed child support order.
Of note is the retention of the consideration of the financial responsibility in the cross guidelines calculation, and not in the basic calculation. Further, the 2017 Guidelines places an increased emphasis on the ability of a court to deviate from the Guidelines. The amount that the Guidelines calculates is still the presumed order, but the Task Force seemed to place additional emphasis on the ability to deviate from that figure if it is in the best interests of the child. More on the issue of deviating from the 2017 Guidelines in a future post.

The 2017 Massachusetts Child Support Guidelines & Proportional Sharing of Child Care, Health/Vision/Dental Insurance Costs

The 2017 Massachusetts Child Support Guidelines continues with the historical approach of deducting the costs of child care, health insurance, dental insurance, and vision insurance from a parent’s available income for purposes of calculating child support. The Task Force has further added a second step, so that parents are sharing, at least somewhat in proportion to their respective incomes, these costs.

Let’s take an example to illustrate this point. Let’s say that that Pat and Dana have one child. Pat is the primary wage-earner, and earns, $2,000 per week. Pat’s employer-provided health and dental insurance costs $100 per week. Dana earns $1,000 per week. The child lives primarily with Dana, spending approximately one-third of the time with Pat.

Under the 2013 Guidelines, Pat’s presumed child support payment to Dana is $362 per week. Under the 2017 Guidelines, Pat’s presumed child support payment to Dana, which adjusts twice for Pat’s contributions towards health insurance and dental insurance (as well as vision insurance and child care costs), would be $325. So, in this particular example, the payor’s child support payment goes down using the new 2017 calculation.

When the payor in an existing child support order is providing for the cost of health insurance, dental insurance, vision insurance, and/or the cost of child care, it would be beneficial for him or her to speak with an attorney to discuss whether it is advisable to modify his or her child support obligation.

The 2017 Massachusetts Child Support Guidelines & Children between the Ages of 18 and 23, and Contribution towards the Cost of College

In addressing the payment of child support for children that are over the age of eighteen and have graduated from high school, the 2013 Massachusetts Child Support Guidelines provided that a
“Court shall exercise its discretion in ordering support and/or college contribution. The Court shall consider the reason for continued residence with and dependence on the Recipient [of child support], the child’s academic circumstances, living situation, the available resources of the parents, the costs of post-secondary education for the child, the availability of financial aid and the allocation of these costs, if any, between the parents. Contribution to college costs is not presumptive, but is based upon the above factors. If a specific college contribution is ordered, this contribution shall be considered by the Court in setting the weekly support order, if any.”

The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, provides more guidance for parents, judges, and attorneys, in how to address the issue of children that have graduated from high school but are not yet emancipated for purposes of a child support order, or an order for a parent or parents to contribute towards the cost of that child’s college education.

The 2017 Guidelines differentiates between children under 18 and children over 18 in the formula itself. Table B, which is used for adjusting the formula on the number of children in the family, has transformed from two columns to five:

Table B in the 2013 Guidelines

Table B in the 2017 Guidelines

The result is a 25% adjustment downward for children over the age of 18. As explained in the Commentary to the 2017 Guielines, his considers the possibility that children of that age group might not be living full-time at a parent’s residence if living at a post-secondary educational institution, and have the ability to work and contribute towards household expenses.
The 2017 Guidelines explains that courts retain discretion in awarding child support for children between the ages of eighteen and twenty-three. The 2017 Guidelines also eliminate as factors for consideration in setting an order for a child over the age of 18 “the costs of post-secondary education for the child,” and “the availability of financial aid and the allocation of these costs, if any, between the parents.”

On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college.

The Guidelines establishes a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.”

Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.

The revision and update of the child support guidelines is a significant event in Massachusetts divorce and family law and understanding the differences between the guidelines currently in effect and those which will go into effect on September 15, 2017 is critical for any case involving children, up to the age of 23. We’ll continue to post helpful content and commentary on the updated law and will continue to provide free consultations to clients and potential clients who need this issue assessed in their cases. To schedule a free consultation, contact the main office at 978-225-9030 or schedule a consult from our home page.

Retroactive Modification of Child Support Payments

Is the retroactive modification of child support payments a possibility in Massachusetts?

Say, for example, that a payor party’s income increases. The receiving party does not file for modification right away–perhaps because she does not know of the increase in income. Once she does file, may the Court increase the payments retroactively, going back to the date that the payor party’s income changed?

In an interesting recent case, the Massachusetts Appeals Court held that retroactive modification of child support was valid. Specifically, where the parties agreed in their separation agreement that future modifications of support are retroactive to date of change of income, the court has the jurisdiction to modify retroactively to that date. This is true even when the date predates the filing of the complaint for modification. 1

In the case, Calabria v. Calabria, the parties were divorced in 2010. The husband was ordered to pay $416 semimonthly in child support. In their separation agreement, the parties agreed that in the event of a change in income or employment, they would immediately notify the other party, seek modification, and modification would be retroactive to the change of employment or salary date.

In 2013, the wife filed a complaint for contempt, claiming among other things that the husband failed to notify her of a change in his income. As the parties exchanged financial information during that proceeding, the wife found out that the husband was consistently making more by 2012 than he did at the time of divorce. She filed a complaint for modification.

The trial judge applied the Massachusetts Child Support Guidelines dating back to the time period of 2011, 2012, and 2013, and computed a deficit of $9,264 for the prior years. The husband appealed, claiming that the judge was without authority to make any increase retroactive to a date earlier than the date of the complaint for modification. The Appeals Court disagreed.

The court specified two circumstances in this case which particularly allowed for this decision. First, the parties had specifically provided for retroactive adjustment of child support in their separation agreement. Second, the adjustment fostered the best interests of the parties’ child and did not derogate from the purposes of the law on modifications of child support.

“Here, we are presented with a modification judgment that gives effect to a predivorce agreement of the parties concerning retroactive adjustment of child support and that results in an increase rather than a decrease in child support during the period preceding the complaint for modification,” the Court explained. “In such circumstances, the objective of [the law] to furnish finality and clarity to orders for child support in order to facilitate prosecution of an enforcement action based on the support order is not impaired by the possibility that the support obligor might assert claimed defenses to payment.” 2

1 Calabria v. Calabria, No. 16-P-1397, May 31, 2017 – July 13, 2017.

2 Id., at 5.

Recovery of Damages in Cohabitation Cases

May a party recover damages from a former romantic partner with whom the party cohabited, where the party contributed significantly to the improvement of the common home? Say, for example, that two people live together but never marry. One of them happens to be in the home improvement business. As the years pass, that party performs significant home repairs and improvements, paying for materials out of his pocket. When the parties break up, may that party recover for the amount of money and work he put into the home—which is staying with the other half of the couple, who happens to be the title owner?

The Massachusetts Appeals Court recently decided a case which dealt with this issue. Bonina v. Sheppard involved a long-term cohabiting relationship, where the parties never married. 1 The plaintiff was a contractor, and he expended significant funds, resources, and labor on fixing up the home, which was owned solely by the defendant. After the relationship ended, the plaintiff brought suit against the defendant, claiming that she was unjustly enriched by his contributions to the home’s improvement. The trial court ruled that the plaintiff could recover damages in the amount of over $156,000, and the defendant appealed.

The Appeals Court explained that unjust enrichment occurs “where a party retains the property of another ‘against the fundamental principles of justice or equity and good conscience.’” 2 The Court first shot down the defendant’s assertion that she could not have been unjustly enriched, because the parties were in a romantic relationship. “The parties’ romantic relationship does not prevent the plaintiff from recovering from the defendant under an unjust enrichment theory,” the Court explained. “In Massachusetts, there is no presumption that a claimant’s contributions during a romantic relationship are gratuitous.” 3

The Court also agreed with the trial judge in finding that the plaintiff’s contributions were not meant to be gifts. Instead, the court sided with the defendant’s argument that he believed the couple would eventually jointly increase the value of the home, and then jointly buy a bigger home. The plaintiff could recover damages under a restitution theory, the Court noted.

Next, the Court discussed whether the trial judge’s arrival at the damages amount was properly calculated. The Court recognized that the way to measure restitution damages is by reviewing not the defendant’s gains, rather than the plaintiff’s losses. However, the Court noted, the plaintiff’s costs may be used as evidence of and relevant to the value of the benefit the defendant received.

“The correlation of costs with benefits is especially valid where, as here, the costs that the plaintiff incurred were for construction materials and fixtures for the defendant’s home. In these circumstances, there is a direct dollar-for-dollar correlation between the costs incurred by the plaintiff and the benefit conferred on the defendant,” the Court explained. “Moreover, in the present case, neither the plaintiff nor the defendant presented evidence regarding other possible measures of unjust enrichment, such as the increased value of the home resulting from the materials and the services. As such, the trial judge had no other reliable, measurable basis on which to calculate the award.” 4 The Appeals Court affirmed the trial court’s award of damages.

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

1 Bonina v. Sheppard, No. 16-P-771 (March 2, 2017-June 1, 2017).
2 Id., at 6.
3 Id.
4. Id., at 11.

What Constitutes Domestic Abuse in Massachusetts?

According to the applicable statute, domestic abuse is defined in Massachusetts to include three different types of actions. 1

First, attempting to cause or causing physical harm constitutes domestic abuse. Actions such as punching, hitting, or kicking another family or household member may be examples of this part of the definition.

Second, placing another in fear of imminent serious physical harm also constitutes domestic abuse. Threatening to hurt another family or household member is an example of this part of the definition.

Third, causing another to engage involuntarily in sexual relations by force, threat of force or duress also constitutes domestic abuse.

Who is Covered Under the Statute?

The Massachusetts domestic abuse statute applies to family or household members. The definition of “family and household members” is fairly broad. It is defined by the statute as persons who:

“(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless or whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts in consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.” 2

What Remedies are Available?

Under the statute, there are many different remedies that a judge may order once a victim of domestic violence files a complaint against the abuser in the appropriate court. For example:

• The court may issue a restraining order against abusing and/or contacting the victim;
• The court may compel the defendant to leave the household;
• The court may grant temporary custody of minor children to the plaintiff, and may also order payment of child support or spousal support by the defendant;
• The court may order the defendant to pay the victim monetary compensation for the losses suffered as a direct result of the abuse;
• The court may order the defendant to attend a recognized batterers’ training program.

Need More Information About Domestic Violence?

Consult our Abuse FAQ and Harassment FAQ pages. Also, the Massachusetts Courts’ web page on domestic abuse has many helpful resources. http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/domviolence.html

1 Mass. Gen. Laws c. 209A, s. 1.
2 Id., definitions.

Income Imputed Where a Party Left a Well-Paying Position Due to Unfortunate Circumstances

Under some circumstances, there may be income imputed to a party for purposes of calculating alimony and child support. For example, if a party voluntarily changes careers to a less lucrative or takes an early retirement, the court may impute income to that party to reflect his or her potential and demonstrated earning capacity. But what if the party left his or her job – though voluntarily – reluctantly and due to unfortunate circumstances? Should the court impute income? The Massachusetts Appeals Court recently addressed this issue.

In the case, 1 the husband had a high-paying position as head of a private school: including his base salary, bonuses, and other benefits, his compensation package equaled approximately $450,000 annually. However, after engaging in an affair with one of his subordinates, the husband resigned from his position. The parties separated, and the husband engaged in an extensive job search—he applied for dozens of comparable positions, traveled frequently to meetings and interviews, worked with recruiters, and honed his professional skills to increase his marketability. After eleven months, the husband received one job offer, which he accepted. However, his new position paid him considerably less. In fact, he was making about a third of his previous salary.

Meanwhile, the parties divorced. The trial judge ordered the husband to pay child support and alimony and based the respective calculations on the husband’s previous income, with income imputed to the husband. After accepting his new offer of employment, the husband petitioned the court for a modification of his child support and alimony payments. He noted that his income was substantially less than it had been at the time of divorce. The wife, meanwhile, filed several complaints for contempt, alleging that the husband owed her back alimony and child support.

During the trial proceedings, the divorce judge concluded “that no material change in circumstances had occurred because the husband’s ‘actual earnings…are less than his potential and demonstrated earning capacity,’ and the reduction in the husband’s income was caused by ‘his voluntary decision to resign from [his job.]’” 2

On appeal, the Appeals Court disagreed with the divorce judge’s decision. “The facts of this case are distinguishable from the voluntary career change line of cases. The husband did not take an early retirement, nor did he resign from [his job] to pursue a less lucrative career in a completely unrelated field. Moreover, while the judge found that ‘[t]he [h]usband’s position…remained available to him, but for his resignation.’ there was no evidence demonstrating that the husband’s employment with [his previous employer] would continue indefinitely,” the Appeals Court stated. 3

The Appeals Court also noted that the trial judge failed to give proper consideration to the efforts of the husband to find higher-paying employment. “not only did the judge fail to make a specific finding that the husband could earn more with reasonable effort, it is apparent that such a finding cannot be made on this record.” 4

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

1 Emery v. Sturtevant, No. 16-P-443 (December 2, 2016 – May 12, 2017).
2 Id., at 6.
3 Id., at 15-16.
4 Id., at 19.

Intellectual Property Counts As Marital Property During Divorce

In what ways is intellectual property important during a divorce? Is it something that may be divided by the court between the parties?

Intellectual property and domestic relations

Intellectual property includes patents, trademarks, copyrights, trade secrets, and trade dress. Each of those categories may present property to be considered by the court as part of a couple’s marital estate. Therefore, during a divorce, it is important to consider any intellectual property holdings in property assignment.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. Intellectual property, like all other property, will be divided in this manner.

Future income from intellectual property

In addition to present property values, future income must also be considered. For example, royalties from copyrighted work or licensing fees from patents and trademarks may present considerable future income opportunities.

In one 2015 case, 1 the Appeals Court held that future royalties derived from a wife’s tremendously successful novel should be divided equitably between the parties. In that case, the trial judge noted that the husband supported his wife financially and emotionally while she wrote the novel. The judge also noted that the wife’s earnings from the novel neared $3,000,000 at the time of the divorce, and he ordered that she pay the husband a lump sum of $570,000. As for future royalties, the trial judge held that because they were too speculative, the husband was not entitled to them.
The husband appealed, seeking equitable distribution of future royalties obtained by the wife.

The Appeals Court agreed with the husband, holding that the wife’s “contractual rights to future royalty and other payments do not, in our view, involve mere expectancies as described in the foregoing cases. While the amount of the royalty and other payments to be received by [the wife] in the future cannot yet be ascertained, the right to receive those royalties and other payments was contractually established at the time of the divorce. Indeed, [her] interests in the present case are, in certain respects, analogous to a party’s interest in the payment of pension rights which has been recognized as marital property subject to division.” 2

The Court suggested that future royalties were particularly suited to “division on an “if and when received” basis, with the judge determining the percentages of any future payments to be assigned to [wife and husband.]” 3

Valuing intellectual property during a divorce

In many cases, it may be possible (whether through past royalties or payments or expert valuation) to establish the value of intellectual property. In those cases, the court may use those reasonable values in calculating marital property division.

If the value of intellectual property is too speculative to consider, however, the judge may opt to exclude the property from marital property calculations. In one case, for example, 4 the court considered the invention of the husband, who held patents on artificial skin. The trial judge held that future income from those patents was so speculative that they did not need to be included as part of property assignment. The Supreme Judicial Court agreed that the judge did not abuse his discretion in his division of the marital assets.

“He was not obliged to place a value on the husband’s royalties, patents, or copyrights. He was warranted in declaring uncertain the value of the husband’s patents on artificial skin,” the high Court noted. “The judge could have concluded on the evidence that the present value of the husband’s future income from this source was too speculative to consider. The asset was not one which obviously has current value but is difficult to appraise (such as a close corporation).” 5

1 Canisius v. Morgenstern, 87 Mass. App. Ct. 759 (2015).
2 Id., at 767.
3 Id., at 771.
4 Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985).
5 Id., at 714.