People settle their divorce and child custody cases, resolving many issues in the process. Child support must be calculated whenever there are minor children involved, or emancipated children up to the age of 23. This applies if they are dependent on the child support recipient and reside with that parent. One issue that must be resolved is whether to adhere to the child support guidelines or deviate from them. It’s common for parties to deviate from the guidelines. Later, the payor may want to reduce child support. Similarly, the recipient may seek to increase it back to the guidelines amount.
In nearly every case, the parties follow the Massachusetts child support guidelines. Parties may agree, or a court may order a deviation from child support guidelines. This is typically based on reasons that the court would otherwise rely upon when deciding on a deviation.
The deviation from the guidelines applies when something unusual justifies adjusting child support, either higher or lower. 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, a child with autism requires frequent doctor visits. These visits focus on both physical and mental health care 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. The child is likely to incur greater expenses and require more time from the primary parent. As a result, it makes sense for the child support amount to be higher to help cover these additional costs and ensure the child’s well-being.
Another example is when one parent has extraordinary travel expenses related to seeing the child. The parent with primary custody relocates to Western Massachusetts. Previously, the family resided together in Essex County. The parent who remained behind now must travel two hours and 40 minutes each way to see his child. The parent must give up employment opportunities and cover extra travel costs. They may also need to arrange a hotel in Western Massachusetts to enjoy 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 modifying the support back to the specified amount. This change is necessary unless all three factors remain 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. The best argument here supports an equal standard of living for the child in both households. If the child enjoys similar living situations and resources in both homes, and will continue to do so with support paid according to the guidelines, the deviation is no longer appropriate under 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. Both sides can likely present reasonable arguments about justice and inappropriateness. Each side has valid points that can be discussed. However, it is important to note that the burden falls on the recipient. The recipient must prove that ordering the guideline amount would lead to some form of injustice. 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.