Fall 2017: Update to the Massachusetts Child Support Guidelines

By Grace Roessler, Esq.

The new Child Support Guidelines became effective September 15, 2017. To give us some insight into the process and the product, I sat down with one of the Task Force Member, Attorney Fern Frolin of Mirick, O’Connell, DeMallie, and Lougee, LLP for a question and answer session:

1) Q: Why do the Child Support Guidelines change?

A: Federal law requires each state that participates in any federally funded child support programs to review the state’s Child Support Guidelines at least every four years. Massachusetts need not amend its Guidelines; the mandate is only to review them. However, Child Support Guidelines should reflect current economic, and social conditions, as well as public policy, all of which change over time. In each of the last four reviews the Guidelines drafters tried to improve the Guidelines in response to current needs of families.

2) Q: What organizations or individuals are involved in making changes to the guidelines?

A: By statute, the Chief Justice of the Trial Court has responsibility for promulgating guidelines. For the 2016/2017 review, Chief Justice Paula Carey appointed a Task Force with representatives of different interest groups. The Task Force met as a group and sometimes in sub-groups to consider the existing Guidelines and potential amendments. Probate and Family Court Chief Justice Angela Ordoñez chaired the Task Force. Several Probate and Family Court administrative office employees assisted the Task Force. The Task Force included 12 professionals who were aided by two consulting economists.

3) Q: What kind of professionals served on the child support guidelines task force for the 2016/2017?

A: The most recent Task Force was comprised of a community social service agency director, an associate justice of the Probate and Family Court, an assistant judicial case manager, a Probate and Family Court probation officer, a member of the Massachusetts legislature, a representative of the Women’s Bar Association, and four private practice attorneys.

4) Q: How many times have you served on the task force?

A: I previously served on the 2008/2009 task force. This is was my second appointment to a Child Support Guidelines Task Force.

5) Q: When did the Task Force first convene for the 2017 revisions?

A: In the third quarter of 2016.

6) Q: What topics and trends did the Task Force review?

A: The Task Force reviewed the existing Guidelines line-by-line for language and substance. We looked for ambiguities and edited the language for simplicity and clarity. At the early meetings, Task Force Members identified their own concerns as professionals who regularly apply the guidelines in the course of our work. The Task Force then formally asked lawyers practicing family law and members of the general public to identify areas where the Guidelines might be improved.

Not surprisingly, concerns raised in public comments coincided with the concerns the Task Force members had initially identified. Repeated concerns were college expenses, adjustments for medical insurance and day care expenses, and parenting time adjustments and these were the issues we addressed. In addition, new federal regulations required us to amend the Guideline’s attribution income provisions.

7) Q: What considerations did the Task Force give to national trends in child support, and what national trends influence the 2016/2017 revisions?

A: For each identified area of concern, some members of the Task Force and the economists looked at national trends, especially in Massachusetts’s neighboring states. New adjustments for medical insurance costs and child care expenses were partly based on other states’ current management of those expenses. Similarly, new college expense presumptions were based on some states’ college expense guidelines.

8) Q: Was there a specific goal or aim for the 2017 Child Support Guidelines? If so, what was it?

A: The only goal for the 2016/2017 Child Support Guidelines task force was to improve the Guidelines to the best of our ability, consistent with state and federal law.

9) Q: What do you consider the biggest changes from the 2013 Child Support Guidelines?

A: In no particular order:

a) The 2017 Guidelines set the presumptive minimum order at $25 per week.

b) The 2017 Guidelines create a new presumptive maximum obligation for court-ordered payment of college expenses from current income;

c) The 2017 Guidelines include adjustments for medical insurance and child care expenses, which, in some cases, will add a contribution from the parent who may not pay those expenses;

d) The 2017 Guidelines eliminate the so-called hybrid adjustment for parenting time where the payor has less than 50% parenting time and financial responsibility but more than 1/3 parenting time;

e) The 2017 Guidelines distinguish between attributed and imputed income.

10) Q: The format of the Guidelines has changed so that case law, statutes, and commentary are included in the sections rather than a separate report – what was the basis of the change?

A: The new format for the Guidelines incudes Task Force commentary, case-law, and statutes. These items now appear in the guidelines text, rather than a separate report.

11) Q: Why did the task force make that change?

A: The Guideline will now be published as an annotated text that provides fast and easy reference to the drafters’ intent.

12) Q: Why was the September 15, 2017 effective date chosen?

A: The Task Force did not select the effective date. The date was selected by Chief Judge Paula Carey. When Guidelines change, the interim time period between publication and implementation creates tension between avoiding enter of orders that would immediately be inconsistent with Guidelines and allowing time for the courts and other users to become familiar with the new calculations.

13) Q: What is the distinction between attribution income and imputed income?

A: Imputed income applies when a parent actually receives income that may not be reported to governmental authorities. In other words, imputed income may not appear on the party’s financial statement, but it is nevertheless available for Child Support calculation purposes. Business paid auto expenses in excess of business use is a good example. Attributed income is income that the court determines a parent could earn with reasonable effort under the actual conditions in which that parent lives. The Task Force recognized that imputed and attribution are generally synonymous terms; but we wanted to distinguish between income which could be available and income which is available. The standard for including attributed income is much higher than the standard for including dollars a parent actually receives. For attributed income, new federal regulations and Massachusetts case law both require that the job be actually available to the parent in order to be included in the computation. Imputed income should usually be included unless there is a reason to exclude it.

14) Q: Has the definition of income changed in the new guidelines?

A: No.

15) Q: What is the new minimum order?

A: $25 a week.

16) Q: The health care expense adjustment is one of the most significant changes in the new guidelines. Does this change reflect Task Force efforts to provide predictability and uniformity in management of these expenses?

A: Yes, among other concerns. The Task Force received many comments that the existing management of these expenses by deduction from available income did not provide meaningful relief for the parent paying these high costs. We attempted to address this concern by providing proportional sharing of health insurance and child care costs. Proportional sharing cannot impact the unadjusted support amount by more than 15%.

17) Q: What is the purpose of the guidelines worksheet identification of combined party’s income in excess of $250,000?

A: This calculation is carried over from the previous child support guidelines. It is intended for informational purposes. Parties or the court can determine how to allocate this “excess income” based on the arithmetical information that the worksheet provides.

18) Q: Many child support orders will be reduced by the new child support guidelines. What is the basis for that reduction, and what do you tell payees who depend on child support?

A: The Task Force did not intend either an overall reduction or increase in child support guidelines. Rather, we intended to deal with the specific problems of support for children over 18; allocation of high expenses for medical insurance and child care; and college tuition. The Task Force was also concerned about elimination of the hybrid time-sharing adjustment, which, in my personal view unfairly reduced child support to recipients. Some of the revisions may reduce the order; some may raise the order.

For recipients whose demonstrated need exceeds the guidelines calculation, and whose orders are unjust, I would advise the recipient to seek and explain the need for deviation. For a payor whose order is unfair and unduly burdensome, I would advise the payor the same.

19) Q: What should litigants or lawyers bring to court on the day of a child support hearing?

A: A child support guidelines worksheet prepared consistent with the facts that the litigant will argue, and the party’s financial statements as well as a deviation rationale if deviation will be requested. The court has a new three-page deviation form that parties should bring if they seek deviation.

20) Q: Did the public comments and request for change surprise you in any way?

A: No. I was not surprised by either the public comments or the concerns raised by the members of the Task Force. There was much less public comment this time as compared with 2008-2009. That surprised me.

21) Q: What challenges do you see for the next child support guidelines review?

A: It will be interesting to see how the new medical insurance, child care, and out of high school and over age 18 adjustments work in practice. The Probate and Family Court Administrative Office monitors application of the Guidelines including the percentage of cases that deviate from the Guidelines amount. Perhaps the next review will change or refine the adjustments made this year.

One challenge that the 2016/2017 Child Support Guidelines Task Force was unable to address concerned the interplay between alimony and child support. Many groups asked for direction and consistency in cases where both a former spouse and children require support. The Task Force was unable to address the alimony/child support conundrum because, this issue exceeded our authority. In my view, those cases are best addressed by deviation from the presumptive Child Support Guidelines, or the alimony presumptions, or both. I look forward to either the Massachusetts legislature or the Supreme Judicial Court resolving the interplay between child support and alimony.

22) Q: What suggestion would you make to lawyers or interested parents who want to provide input for future revisions to the child support guidelines?

A: There has been a public comment in each of the last four child support guidelines reviews. The next review will occur in 2020. Watch for requests for comment in Lawyers Weekly and on the trial court website. And then, participate by attending hearings or sending written comments.