Massachusetts divorce lawyer Nicole K. Levy reviews the grounds for child support deviations under the Massachusetts Child Support Guidelines.
In most divorce and family law cases involving the parents of unemancipated children, child support needs to be resolved. In Massachusetts, the Child Support Guidelines are presumptive, and there is little wiggle room for parties to receive more or pay less child support under the Guidelines. However, a standard Guidelines calculation does not take into account every unique family situation. Accordingly, Section IV of the Child Support Guidelines specifically grounds upon which judges may deviate from the standard Guidelines calculation in certain circumstances. Although arguing for a deviation is often an uphill climb for probate court litigants, parties can sometimes persuade a judge that a higher or lower child support order than is provided under the standard calculation is appropriate. In these cases, a judge can exercise his or discretion to order a deviation from the Guidelines.
Table of Contents for this Blog
- How Child Support Deviations Work
- A Sample Deviation: Upward Deviation Where Child Support Recipient Pays Unusually High Medical Insurance Costs
- Other Grounds for Child Support Guidelines Deviations: from Incarceration to Chronic Illness
- Child Support Deviations: a Function of Judicial Discretion
- Deviations: A Rare but Important Feature of Massachusetts Family Law
The Guidelines specifically provide that a judge entering a deviation must provide written findings in support of the deviation. In practice, a judge’s order for deviation must include four parts: (1.) what a standard Guidelines order would have been, but for the deviation; (2.) the amount of child support the Court is entering as a deviation, along with any additional orders affecting child support; (3.) the rationale/reasoning for the deviation; and (4.) the specific factual basis for the deviation.
It is inaccurate to call any child support deviation “common”. Most judge are truly loathe to deviate from the Guidelines, since doing so opens the door to argument and litigation in place of structure and certainty. However, there are a few factual scenarios in which deviations are more frequently seen. Perhaps the most common grounds for deviation involves one parent paying an unusually high percentage of his or her weekly income towards a medical insurance policy that covers the family. As covered in last year’s blog on medical insurance under the Child Support Guidelines, the method used for deducting medical insurance costs under the Child Support Guidelines can result in blatantly unfair child support orders. Moreover, Section IV (11) of the Guidelines provides that a deviation may be warranted if “a parent has extraordinary health insurance expenses.” As a result, some of the more frequent deviations from the Guidelines involve a reallocation of medical insurance cost away from the standard Guidelines model. Below is a typical example of a deviation based on medical insurance costs.
A Sample Deviation: Upward Deviation Where Child Support Recipient Pays Unusually High Medical Insurance Costs
As discussed above, a typical child support deviation requires the judge to an issue an order address four topics. Below, we walk through a typical order for deviation. Under the hypothetical, a standard Child Support Guideline calculation would have left one party (in this case, the Mother) forced to pay an extraordinarily high proportion of her income towards the medical insurance coverage for the family. The four steps would be as follows:
- Identifying the Standard Guideline Calculation. In making a deviation, a judge must start by acknowledging the amount of child support that would have resulted from a standard Guidelines calculation. Sample Order: “An application of the Guidelines to the respective gross incomes of the parties, with a deduction for Mother’s medical insurance cost, would result in a child support order to Mother of $218.”
- The Amount of the Deviation. Sample Order: “The Court finds that a deviation from the Child Support Guidelines is appropriate as follows: Father shall pay child support to Mother of $344 per week.“
- The Rationale for the Deviation. Sample Order: “The Court finds that a standard guideline order of $218 per week would place an undue burden on Mother, where the weekly cost for Mother to cover the parties and two children under Mother’s employer-based medical insurance plan is $350 per week. Absent a deviation, a standard Guidelines order would result in Mother’s extraordinary medical insurance costs ($350/week) exceeding her weekly child support received ($218/week) by $132 per week. Accordingly, a deviation is warranted. The Court arrived at its child support order of $344 per week as follows: the Court has assigned 50% of the cost of Mother’s weekly weekly medical insurance [$175 per week] to each party, with each party credited with a weekly expense of $175 deducted from their respective gross incomes under the Guidelines. With each party responsible for $175 per week in medical insurance costs, a revised child support calculation under the Guidelines results in child support to Mother of $169 per week. In the interest of efficiency, Father shall make a single weekly child support payment to Mother of $344 per week, consisting of $169 in child support and $175 in contribution to the medical insurance expense. The Court notes that even with Father paying 50% of the weekly medical insurance cost, a child support order to Mother of $169 per week is less than Mother’s share of the medical insurance of $175 per week. If either party can obtain less costly medical insurance, this order shall be recalculated.
- Factual Findings in Support of the Deviation. Sample Order: “The parties have two children, who reside primarily with Mother. Father earns gross income of $800 per week. Mother earns gross income of $750 per week, and has a medical insurance cost of $350 per week covering the parties and children. A standard Child Support Guidelines order results in child support to Mother of $218 per week, leaving a $132 per week shortfall that Mother must cover alone to maintain the medical insurance plan. Under the Court’s revised order, Father shall be responsible for $175 per week in medical insurance costs and Mother will continue to be responsible for $175 per week in medical insurance costs. Mother’s share of said cost will be partially offset by her receipt of $169 per week in child support from Father. Even under the Court’s revised order, Mother’s net weekly medical insurance costs ($175/week) will exceed her net weekly child support ($169/week).“
One immediate take away from the above hypothetical scenario is just how much work judges must put into crafting findings and orders for deviations under the Child Support Guidelines. Massachusetts Probate and Family Courts are the busiest, most overburdened and most underfunded courts in the Commonwealth. Judges with limited time and resources must pick and choose which cases on which they will expend the precious time required to draft a thoughtful and time-consuming order and findings for deviation. (If such rationing of time and attention by judges strikes you as unfair, ask your representatives in the Massachusetts legislature to increase funding for probate and family courts.) This, among many reasons, makes deviations from the child support guidelines rare.
In some circumstances, deviations under the guidelines can seem arbitrary. Take, for example, a party who is incarcerated in jail and lacks sufficient funds to pay child support. In other contexts, Judges often indicate that they “will not set a party up for contempt” by ordering a person with no means of earning income to pay child support. However, the 2013 Guidelines only provide for a reduction in child support if an incarcerated person has been sentenced to at least three years in prison. Invariably, this results in massive arrears upon the inmate’s release. Now, it is certainly true that would argue criminals shouldn’t be entitled to a reduction in child support. This argument has merit, without question. However, this does not change the fact that the Guidelines are based on each party’s current income, which is something an incarcerated person lacks, making the three-year requirement somewhat arbitrary.
The 2013 edition of the Massachusetts Child Support Guidelines provides thirteen (13) separate grounds for deviation, ranging from the simple fact that the parties have agreed on a deviation to increasingly specific scenarios, such as the special needs or aptitudes of a child; the health of either parent or child; or the particularized financial distress of either parent. Indeed, the grounds for deviation even include surprisingly specific factual scenarios, such as when a deviation is warranted because an “application of the guidelines may adversely impact re-unification of a parent and child where the child has been temporarily removed from the household based upon allegations of neglect.” (This could apply to a scenario in which a child is temporarily removed from a home by the Department of Children and Families, but a judge feels that terminating the parent’s child support would undermine his or her ability ability to maintain a home for the child to return to.)
Some of the grounds for deviation are fairly predictable. For example, deviations based on the health of the child or a parent is easily understandable, particularly if either includes extraordinary medical expenses. A deviation on behalf of a parent who is spending an inordinate percentage of his or her income on medical insurance or child care is also understandable. Similarly, if a child has special needs and requires full-time care or supervision, the resulting limitations on parent’s ability to work may warrant an understandable deviation.
The Guidelines also have a “catch-all” exception, which allows for a deviation if, “absent deviation, application of the guidelines would lead to an order that is unjust, inappropriate or not in the best interests of the child, considering the Principles of these guidelines.” This provision of the Guidelines permits judges to fashion deviation orders based on unusual or unpredictable circumstances. While these cases tend to be rare, it is not hard to imagine situations in which the standard Guidelines calculation simply does not make sense.
Although the Guidelines presumptively apply in every Massachusetts case, it must be emphasized that no judge is obligated to enter a deviation, even when that judge is faced with one of the 13 deviation scenarios set forth in the Section IV of the Guidelines. Indeed, it is fair to say that some grounds for deviation under Section IV tend to be less persuasive to judges than others. For example, Section IV (13) the Guidelines explicitly provides that a deviation may be warranted if “one parent provides less than one-third of the parenting time for a child or children”. Consider, for a moment, that a standard “every other weekend” parent plan results in the non-custodial parent using just 14% of the available parenting time. This is far less than the 33% contemplated under Section IV (13). Indeed, in the real world, it is rare for judges to order non-custodial parents with “every other weekend” visitation to pay extra child support for, even though “every other weekend” equals less than half of the “suggested parenting time” under Section IV (13). (With occasional exceptions, judges will generally only order increased child support under Section IV (13) if a parent uses less than 5% of the available parenting time.)
The rare use of a “parenting time deviation” under Section IV (13) illustrates an important point: just because a judge encounters one of the 13 scenarios described in Section IV does not mean the judge must – or is even likely to – enter a deviation based on that fact pattern. A judge is under no obligation to deviate from the Guidelines in any situation. And while Massachusetts appellate courts can reverse any child support they find to be “plain error”, the SJC and Appeals Court have been very hesitant to second guess probate and family court judges who choose to forego a deviation in a particular case. The lesson: just because a case fits a fact pattern under Section IV (13), an order for child support deviation is not assured.
While deviation may seem like a rich opportunity for a parent receive more child support – or pay less child support – judges scrutinize deviation arguments very seriously. Many judges will not deviate from the Guidelines absent highly compelling evidence. The reason for this is two-fold. First, many parents who receive child support would struggle to provide for their children with a below-Guidelines order, while many parents who pay child support simply cannot afford an above-Guidelines order. Second, judges are acutely aware that each deviation from the Guidelines that he or she allows only serves to encourage more deviation requests in other cases, draining the court’s time and resources, and undermining the predictability of the system that judges operate under.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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