Factors
to now be considered by the court in setting child support
orders:
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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.
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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.
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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.
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CUSTODY
AND VISITATION:
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.
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.
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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.
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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.
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HEALTH
INSURANCE, UNINSURED, AND EXTRAORDINARY MEDICAL
EXPENSES:
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.
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.
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.
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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.
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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.
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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.
