By Fern L. Frolin, Grindle Robinson, LLP
New Child Support Guidelines became effective August 1, 2013.  These Guidelines follow the general approach of the 2009 Massachusetts Child Support Guidelines revisions, but with many notable substantive changes. This short summary highlights new provisions and differences between the 2009 Guidelines and the 2013 version and also suggests possible methodologies to calculate child support and alimony in cases where both forms of support may be appropriate.
The 2013 Guidelines will generally result in lower child support orders.
The 2009 Guidelines formula set the percentage of combined income available for support (i.e., “Combined Support Percentage”)  at 21% of combined gross income for the very low income range of $5,000 to $10,000 combined annual income. In 2009, Combined Support Percentages increased to a high of 26% for combined marginal income between about $17,000 and $26,000. From that peak, Combined Support Percentages dropped incrementally to a low of 15% on the highest tranche of combined income. The 15% range applied only to combined income above $182,000.
In contrast to the arcing percentages of the 2009 Guidelines, the 2013 Combined Support Percentages begin at 22% on the $7,852 to $39,000 combined income tranche and decline steadily as combined income increases. On combined income above $208,000, the marginal percentage rate is 11%, a decrease of 26% for the highest income range to which the Guidelines presumptively apply. Resulting base calculations on a sample range of cases from relatively low combined income cases to relatively high combined income cases generally yield lower orders for one-child families. Inferentially, this change stems from economic data showing that the 2009 percentages do not reflect actual child-related expenses in the 2013 economic environment. It may also be inferred that the decreased percentages reflect a policy trend toward finer separation of child expenses from adult expenditures for child support purposes.
In contrast to generally reduced Combined Support Percentages in the 2013 Guidelines, the new Guidelines prescribe increased percentage multipliers over the basic order for multiple child families. The 2009 formula included a 20% support add-on for a second child of the same family, and much smaller increases ranging from 7% to 3% for the third through fifth child. The 2013 version increases basic support by 25% for the second child, another 13% for the third child, 7% more for the fourth child and 3% more than the fourth child add-on for a family with five children. However, because the add-ons are usually applied to a lower beginning order, recipients with several children often will not see a material increase over 2009 orders.
An existing child support order may be modified if the existing order is inconsistent with the 2013 Guidelines.
Section III of the 2013 Guidelines generally permits modification of orders that are inconsistent with the new Guidelines, regardless of material change of circumstance or the length of time since the order entered. This new provision derives directly from Morales v. Morales, 464 Mass. 507 (2013), in which the Supreme Judicial Court held that the “plain language of G.L. 208, §28”, which provides that child support orders “shall be modified if there is an inconsistency” between the applicable child support guidelines and the existing order, trumps the 2009 Guidelines requirement that petitioner also show either a three-year-old order or a material change of circumstance. 467 Mass. at 511. The 2009 three-years-old requirement originates in G.L.c. 119A, §3B(g), which governs child support collection services of the Department of Revenue. The new Guidelines suggest that the three-year requirement remains viable for Department of Revenue cases only. 2013 Guidelines III B.
In practice, if a payor wants to modify a recent order due to the downward Combined Income Percentages of the 2013 Guidelines, he or she will be able to do so as soon as the court can hear the case, unless support is paid through the Department of Revenue. Not resolved is whether particular Probate and Family Court judges or the appellate courts will recognize a separate standard for Department of Revenue cases, as the 2013 Guidelines suggest.
Lawyers should notify former clients of the new Guidelines and their rights to modify. They should also warn clients that courthouses may experience a modification stampede.
The 2013 Guidelines set a new, reduced formula for payors who shoulder more than one-third parenting time.
The 2009 Guidelines established a formula for child support where the parents share both parenting time and child expenses approximately equally. The 2009 guidelines mandated parents who equally share parenting time and expenses to calculate two hypothetical support orders, one for each parent as payor. Then the parent with the higher of the two obligations pays to the other parent the difference between the two hypothetical orders. This 2009 cross-calculation formula reflected a step towards linking child support to parenting time. The 2013 Guidelines retain the cross-calculation instruction for equal parenting time and expense cases.
New in 2013 is a hybrid formula for cases where parents share parenting time (and presumably expenses) more equally than two-thirds/one-third, but not fully equally. The payor in those cases will pay the average of his or her hypothetical base obligation and the shared custody cross-calculation. This new instruction furthers the trend toward connecting child support to child scheduling arrangements.
Recipients who have more than 2/3 of parenting time may seek upward deviation.
Echoing the trend toward connecting parenting time and support obligation, the 2013 Guidelines establish a new deviation factor for payors with less than 1/3 parenting time. However, unlike the reverse cases for the payors with more than 1/3 of parenting time, the Guidelines have no formula to clearly compensate a recipient who bears extra parenting duties.  This discrepancy in the Guidelines likely stems from concerns about reasons why a payor may not be able to exercise more parenting responsibility, such as distance between the parents’ residences.
The 2013 Guidelines do not set specific instructions regarding the relationship of child support and alimony but, rather, suggest alternate calculations and deviation. Since 2012, the Massachusetts Alimony Reform Act excludes from the Court’s alimony calculation “gross income which the Court has already considered for setting a child support order.” G.L. 208, §53 (c) (2). When both a party and the children need support, the statutory language suggests that income must be allocated to one form of support or the other before support can be calculated. However, neither the Alimony Reform Act nor the 2013 Guidelines provide a formula for determining when one or the other form of support is appropriate.
The 2013 Guidelines instruct parents to consider the circumstances and prepare alternate calculations in order to determine an equitable result for parents and the child. Let us consider some alternatives. It may be equitable to calculate child support first on some portion of the available income and then calculate alimony on the remaining income. The reverse may be fairer. The 2013 Guidelines permit either approach.
It is often most sensible to simply order alimony on all of the available income, with no child support at all. One reason for this methodology would be the parties’ unequal tax rates and an overall benefit to the family if all support can be taxed at the recipient’s lower rate. Another reason may be looming emancipation of all children, in which event an all-alimony order will avoid imminent modification of the support orders.
Alternatively, many Probate and Family Court judges apparently avoid the statutorily proscribed “double dipping” by calculating alimony on all available income, awarding alimony on the resulting amount, and then calculating child support on alimony adjusted income. The alimony order is deemed income available for child support, and child support is based on the payor’s gross income minus the alimony order and recipient’s gross income plus alimony received. This method logically follows from the fact that alimony is deemed “income” for tax and other purposes. The process usually results in a higher combined support and alimony order than the recipient would receive if the payor’s income was apportioned before any calculation occurred. The 2013 Guidelines neither endorse not discourage this approach.
Finally, the Guidelines and Massachusetts alimony law allow and encourage needs driven deviation. Lawyers and parties will continue to focus heavily on need as the central analytic tool in setting orders.
The Court may not order a recipient to provide medical insurance.
Paragraph II G (1) of the 2013 Guidelines provides that the Court shall order a payor (but not a recipient) to insure the child if the payor has medical insurance available at reasonable cost. The Guidelines clarify that the mandate’s one-sidedness stems entirely from “Massachusetts and federal regulations,” stating that “absent agreement the Court lacks authority to require the recipient to provide health insurance.” 2013 Guidelines, note 5. Further, if federal or state law changes, Guidelines health insurance requirements should be construed in accordance with any amendments.
The Court must consider availability of employment before attributing income to a party.
The 2013 Guidelines retain the 2009 list of mandatory findings and considerations and add availability of employment at the attributed income level as a mandatory consideration for income attribution. That is, in order to attribute income the Court must now find that “a party is capable of working and is unemployed or underemployed” after considering “the education, training, health and past employment history of the party” along with availability of employment. 2013 Guidelines, I E. Upon proper findings and consideration, the court’s discretion to attribute income stands.
Overall, the 2013 Child Support Guidelines amount to much more than mere tweaking or technical correction of the 2009 version. These Guidelines further the movement toward separating child support from family, household, or spousal support. They advance the trend of linking parenting plans to financial orders. When the 2013 Guidelines are fully implemented, most child support orders will be lower. In the meantime, lawyers and courts should prepare for an increased modification and recalculation caseload.
Fern L. Frolin is a partner with the Wellesley firm of Grindle, Robinson, Goodhue & Frolin. She represents individuals and provides neutral services as a mediator, arbitrator, conciliator, parent coordinator or guardian ad Litem in family law and probate matters. Ms. Frolin is a past president of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers (AAML), a fellow of the International Academy of Matrimonial Lawyers, and past Massachusetts Bar Association Family Law Section Chair.
Ms. Frolin served on the trial court task force that drafted the 2009 Massachusetts Child Support Guidelines and the Joint Judiciary Committee task force that drafted the 2011 Bill to Reform and Improve Alimony. She taught Law for Social Workers at Boston College Graduate School of Social Work for 10 years. She is recognized as a Massachusetts and New England Super Lawyer and is listed in Best Lawyers in America.
 An internal Probate and Family Court committee consisting of two judges, one probation officer and a family law facilitator and deputy assistant register drafted the 2013 Guidelines in consultation with two economists. The group focused on “differences between current cost data and that used for the Guidelines promulgated in 2009. “ Massachusetts Court System Press Release, p. 1, June 20, 2013.
 Actual payment under both the 2009 and 2013 formula is the combined available income times Combined Support Percentage times the payor’s relative share of total combined income.
 Historically, formula changes apply almost mechanically to most cases; deviation factors must be known, argued, and accepted. Thus the 2013 Guidelines disparately treat a payor with more than 1/3 parenting time, who will easily obtain a reduced order, and a recipient who bears more than 2/3 parenting responsibility, who must seek and receive a deviation in order to obtain additional support. It therefore appears that the trending linkage of support obligation to parenting time mainly benefits payors.
 Because §53 (c ) (2) is imprecise it is not completely obvious whether G.L. c. 208, §53 (c) (2) prohibits this approach. The statute should probably be amended in order to avoid consequences that the legislature did not intend.
 The method assumes that alimony from a party to the order is an income source appropriately included in the child support calculation. The Guidelines’ sources of income list includes “spousal support received from a person not a party to this order.” Guidelines IA (18). One might interpret this provision to mean that alimony from a party to the order is not income. However, the Guidelines’ sources of income list is non-exclusive, which may justify treating alimony from a party as an unlisted income source.