N.B.
THESE GUIDELINES APPLY TO CURRENT CHILD SUPPORT ONLY. THEY DO NOT APPLY
TO ALIMONY, THE DIVISION OF MARITAL PROPERTY, THE PAYMENT OF ARREARS,
RESTITUTION, OR REIMBURSEMENT, NOR DO THEY APPLY WHERE THE PARTIES HAVE
MADE AN AGREEMENT WHICH IS APPROVED BY THE COURT AND IS FOUND BY THE
COURT TO BE FAIR AND REASONABLE, AND MAKES ADEQUATE PROVISION FOR THE
SUPPORT OF THE CHILD.
THERE SHALL BE A
PRESUMPTION THAT THESE GUIDELINES APPLY, ABSENT AGREEMENT OF THE
PARTIES, IN ALL CASES SEEKING THE ESTABLISHMENT OR MODIFICATION OF A
CHILD SUPPORT ORDER. A SPECIFIC, WRITTEN FINDING THAT THE GUIDELINES
WOULD BE UNJUST OR INAPPROPRIATE AND THAT THE BEST INTERESTS OF THE
CHILD HAVE BEEN CONSIDERED IN A PARTICULAR CASE SHALL BE SUFFICIENT TO
REBUT THE PRESUMPTION IN THAT CASE.
THESE REVISED
GUIDELINES, IN AND OF THEMSELVES, DO NOT CONSTITUTE A SUFFICIENT CHANGE
OF CIRCUMSTANCES TO WARRANT A MODIFICATION OF THE CHILD SUPPORT ORDER.
The
child support guidelines are formulated to be used by the justices of
the Trial Court, whether the parents of the children are married or
unmarried, in setting temporary, permanent or final orders for current
child support, in deciding whether to approve agreements for child
support, and in deciding cases that are before the court to modify
existing orders. A modification may be allowed upon showing a
discrepancy of 20% or more between an established order and a proposed
new order calculated under these guidelines. The presumption
establishing a proposed new order may be rebutted in cases where the
amount of support required under the guidelines is due to the fact that
the amount of the current support order resulted from a rebuttal of the
guideline amount or by an allowance of an agreement of the parties and
there has not been a change in the circumstances which resulted in a
rebuttal of the guideline amount. The guidelines are intended to be of
assistance to members of the bar and to litigants in determining what
level of payment would be expected of them given the relative income
levels of the parties. In all orders where an order for child support is
requested, a guideline worksheet must be filled out, regardless of the
income of the parties.
In
establishing these guidelines, due consideration has been given to the
following principles:
-
To minimize
the economic impact on the child of family breakup;
-
To encourage
joint parental responsibility for child support in proportion to,
or as a percentage of income;
-
To provide
the standard of living the child would have enjoyed had the family
been intact;
-
To meet the
child's survival needs in the first instance, but to the extent
either parent enjoys a higher standard of living to entitle the
child to enjoy that higher standard;
-
To protect a
subsistence level of income of parents at the low end of the
income range whether or not they are on public assistance;
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To take into
account the non-monetary contributions of both the custodial and
non-custodial parents;
-
To minimize
problems of proof for the parties and of administration for the
courts;
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To allow for
orders and wage assignments that can be adjusted as income
increases or decreases.
I.
INCOME DEFINITION
A. For
purposes of these guidelines income is defined as gross income from
whatever source. Those sources include, but are not limited to, the
following:
-
salaries and
wages (including overtime and tips) and income from
self-employment (except in certain instances, see B below)
-
commissions
-
severance
pay
-
royalties
-
bonuses
-
interest and
dividends
-
income
derived from business/partnerships
-
social
security
-
veterans'
benefits
-
insurance
benefits (including those received for disability and personal
injury)
-
workers'
compensation
-
unemployment
compensation
-
pensions
-
annuities
-
income from
trusts
-
capital
gains in real and personal property transactions to the extent
that they represent a regular source of income
-
spousal
support received from a person not a party to the order
-
contractual
agreements
-
perquisites
or in kind compensation to the extent that they represent a
regular source of income
-
unearned
income of children (in the court's discretion)
-
income from
life insurance or endowment contracts
-
income from
interest in an estate (direct or through a trust)
-
lottery or
gambling winnings received either in a lump sum or in the form of
an annuity
-
prizes or
awards
-
net rental
income
-
funds
received from earned income credit
B. In
individual cases, the court may choose to disregard overtime income or
income derived from a second job. However, consideration of such income
may be appropriate in certain instances such as those where such income
constituted a regular source of income when the family was intact.
II.
FACTORS TO BE CONSIDERED IN SETTING THE CHILD SUPPORT ORDER
A. RELATIONSHIP
TO ALIMONY OR SEPARATE MAINTENANCE PAYMENTS
So long as the
standard of living of the children is not diminished, these guidelines
do not preclude the court from deciding that any order be denominated in
whole or in part as alimony or as a separate maintenance payment. It is
the responsibility of counsel representing the parties to present the
tax consequences of proposed orders to the court.
B. CLAIMS
OF
PERSONAL EXEMPTIONS FOR CHILD DEPENDENTS
In
setting a support order, the court may make an order regarding the
claims of personal exemptions for child dependents between the parties
to the extent permitted by law.
C. MINIMUM
AND MAXIMUM LEVELS
The
guidelines recognize the principle that, in many instances, to maintain
a domicile and a reasonable standard of living for the minor children,
the custodial parent will choose to work. In those cases, a disregard of
gross income of the custodial parent is to be applied up to a maximum of
$20,000. The formula in these guidelines is intended to be adjusted
where the income of the custodial parent exceeds the $20,000 disregard
after consideration of day care expenses.
These
guidelines are also intended to ensure a minimum subsistence level for
those non-custodial parents whose income is less than $100 per week.
However, it is the obligation of all parents to contribute to the
support of their children. To that end, in all cases, a minimum order of
$80.00 ($18.46 per week) per month should enter. This minimum
should not be construed as limiting the court's ability to set a higher
order, should circumstances permit.
Where
the court makes a determination that either or both of the parties is
either purposely unemployed or underemployed, the section of this
guideline entitled ATTRIBUTION OF INCOME should be consulted.
These
guidelines are not meant to apply where the combined gross income of the
parties exceeds $135,000 or where the gross income of the non-custodial
parent exceeds $100,000. In cases where income exceeds these limits, the
court should consider the award of support at the $100,000/$135,000
level as a minimum presumptive level of support to be awarded.
Additional amounts of child support may be awarded at the judge's
discretion.
D. CUSTODY
AND VISITATION
1) Custody
These
guidelines are based upon traditional custody and visitation
arrangements. Where the parties agree to shared physical custody or the
court determines that shared physical custody is in the best interests
of the children, these guidelines are not applicable. The guidelines are
also not meant to apply for cases in which there is split physical
custody, i.e., each parent has physical custody of one or more children.
2) Visitation
These
guidelines recognize that children must be allowed to enjoy the society
and companionship of both parents to the greatest extent possible. The
court may adjust the amount of child support beyond the 2 percent range
(see Basic Order, Section III. A.) after taking into consideration the
parties' actual time sharing with the children and the relative
resources, expenses, and living standards of the two households.
In
some instances the non-custodial parent may incur extraordinary
travel-related expenses in order to exercise court ordered visitation
rights. To foster parental involvement with the children, the court may
wish to consider such extraordinary expenses in determining the support
order.
E. CHILD
CARE CREDIT
The
basic child support obligation set out in the guidelines includes the
non-custodial parent's share of child care expenses. Child care
expenses are not seen as a separate support item and responsibility for
them resides with the custodial parent.
The
reasonable cost of child care (costs as defined by 26 USC 21, Internal
Revenue Service Code Section 21) actually paid is to be
subtracted from the custodial parent's gross income before the disregard
formula is applied.
F.
AGE OF THE
CHILDREN
To
reflect the costs of raising children, age has been broken down into
three groups: 0-12, 13-18, and over 18. A single
adjustment to the basic order should be made based on the age of the
oldest child for whom support is to be ordered. The support order where
the oldest child is 12 or under should be the basic support
order according to the schedule. Where the oldest child is between the
ages of 13 and 18, the order should be increased by 10 percent of the
basic order amount. For cases involving children over the age of 18, to
the extent permitted by the General Laws, the amount of the order, if
any, will be left to the Court's discretion.
Where
the parties file an agreement with the court that allows for private
payment between the parties, it is suggested that the incremental age
issue be addressed in the agreement.
G. HEALTH
INSURANCE, UNINSURED, AND EXTRAORDINARY MEDICAL EXPENSES
1) Health
Insurance
When
the court makes an order for child support, the court shall determine
whether the obligor under the order has health insurance on a group plan
available to him/her through an employer or organization or has health
insurance or other health coverage available to him/her at reasonable
cost that may be extended to cover the child for whom support is
ordered. When the court makes a determination that the obligor has such
coverage, the court shall include in the support order a requirement
that the obligor exercise the option of additional coverage in favor of
such child, unless the obligee has already provided such coverage for
the child at a lesser cost (except for health insurance funded under
public assistance programs), or has and prefers to continue such
coverage irrespective of cost.
If
family health coverage is to be provided by the obligor, the support
order should be reduced by one half the cost of family coverage. It is
the responsibility of the obligor under the support order who is seeking
such a reduction in the order to produce proof satisfactory to the court
of the existence of such family coverage under the plan, or no such
reduction shall be allowed. However, there shall be no reduction if the
obligor has a preexisting family health insurance policy which could be
amended to name the additional dependents to the policy at no cost to
the obligor. Should health insurance not be provided for any period for
which it is ordered, the credit for the premium payment shall be revoked
and the order shall be increased by the amount of the credit during the
period of noncompliance.
If
family health coverage is provided by the obligee, the support order
should be increased by one half the cost of the coverage. It is the
responsibility of the obligee who is seeking an increase in the order to
produce proof satisfactory to the court of the existence of such family
coverage under the plan, or no such increase shall be allowed. However,
there shall be no increase if the obligee has a preexisting family
health insurance policy which could be amended to name the additional
dependents at no cost to the obligee. Should health insurance not be
provided for any period for which it is ordered, the increase allowed
for the premium payment shall be revoked and the order shall be
decreased during the period when health insurance is not provided.
2) Routine
Uninsured Medical and Dental Expenses
The
custodial parent shall be responsible for the payment of the first $100
per child per year for routine medical and dental expenses. For amounts
above that limit, the court shall allocate costs on a case by case
basis. No reduction in the child support order should be allowed.
3) Uninsured
Extraordinary Medical and Dental Expenses
The
payment of uninsured extraordinary medical and dental expenses incurred
by the minor children, absent agreement of the parties, shall be treated
on a case by case basis. (Example: orthodontia,
psychological/psychiatric counseling, etc.) In such cases, where the
court makes a determination that such medical and dental services are
necessary and are in the best interests of the child, consideration
toward a reduction in the child support order should be given.
H. ATTRIBUTION
OF INCOME
If
the court makes a determination that either or both parties is earning
substantially less than he or she could through reasonable effort, the
court may consider potential earning capacity rather than actual
earnings. In making this determination, the court shall take into
consideration the education, training, and past employment history of
the party. These standards are intended to be applied where a finding
has been made that the party is capable of working and is unemployed,
working part-time or is working a job, trade, or profession other than
that for which he/she has been trained.
This
determination is not intended to apply to a custodial parent with
children who are under the age of six living in the home.
I.
PRIOR
ORDERS FOR SUPPORT
To
the extent that prior orders for spousal and child support are actually
being paid, the court should deduct those payments from the gross income
before applying the formula to determine the child support order. This
section applies only to orders for child support for children other
than those who are the subject of the pending action.
J. EXPENSES
OF SUBSEQUENT FAMILIES
In
instances where the non-custodial parent has remarried and has children
by a subsequent marriage, the court should examine such circumstances
closely to determine in the allocation of available resources whether
consideration beyond Part II Section I (Prior Orders of Support) should
be given when the custodial parent of children borne of the first
marriage, or subsequent marriages appears before the court seeking a
modification of the existing child support order. Expenses of a
subsequent family may be used as a defense to a request to modify an
order seeking an increase in the existing order, but such expenses
should not be considered a reason to decrease existing prior orders. In
actions pursuant to G.L. c.209C, this paragraph shall be construed to
apply equally to children born out of wedlock.
This CHILD SUPPORT
GUIDELINES supersede any previous Guidelines and are effective February
15, 2002.
-Barbara A.
Dortch-Okara, Chief Justice for Administration and Management
CLICK BELOW FOR:
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- New
Form for Child Support Obligation Schedule - Basic Order -
Effective February 15, 2002. Page 1
and Page 2. Page 2 MUST be
printed on the back of Page 1 AND this new form MUST be printed on
CANARY YELLOW paper. See the color
graphics (link provided) for color of new form. (This is
also be available within our Court forms - interactive!)
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