COMMONWEALTH OF MASSACHUSETTS
CHILD SUPPORT GUIDELINES
These guidelines shall take effect on January 1, 2009 and shall be applied to all child support orders and judgments entered after the effective date. There shall be a rebuttable presumption that these guidelines apply in all cases establishing or modifying a child support order. Existing orders and judgments less than three years old as of the effective date of these guidelines shall not be modified unless the income of one or both parties has changed or other new circumstance warrants modification.
In recognition of the priority of the interests of the children of the Commonwealth, these 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. 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 given the relative income levels of the parties. In all cases 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:
1) to minimize the economic impact on the child’s standard of living;
2) to encourage joint parental responsibility for child support in proportion to, or as a percentage of, income;
3) 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;
4) 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;
5) to recognize the nonmonetary contributions and extent of involvement of both parents;
6) to recognize the monetary and/or in-kind contributions of both parents in addition to the child support order;
7) to promote consistency in the setting of child support orders at all income levels whenever appropriate;
8. to recognize the importance, availability, and cost of health insurance coverage for the child;
9) to allow for orders and wage assignments that can be adjusted as income increases or decreases; and
10) to minimize problems of proof for the parties and to streamline administration for the courts.
I. INCOME DEFINITION
A. Sources of Income
For purposes of these guidelines, income is defined as gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority. Those sources include, but are not limited to, the following:
1) (a) salaries, wages, overtime and tips,
(b) income from self-employment;
3) severance pay;
6) interest and dividends;
7)income derived from businesses/partnerships;
8. social security excluding any benefit due to a child’s own disability;
9) veterans’ benefits;
10) military pay, allowances and allotments;
11) insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;
12) workers’ compensation;
13) unemployment compensation;
16) distributions and income from trusts;
17) capital gains in real and personal property transactions to the extent that they represent a regular source of income;
18) spousal support received from a person not a party to this order;
19) contractual agreements;
20) perquisites or in-kind
compensation to the extent that they represent a regular source of income;
21) unearned income of children, in the Court’s discretion;
22) income from life insurance or endowment contracts;
23) income from interest in an estate, either directly or through a trust;
24) lottery or gambling winnings received either in a lump sum or in the form of an annuity;
25) prizes or awards;
26) net rental income;
27) funds received from earned income credit; and
28) any other form of income or compensation not specifically itemized above.
B. Overtime and Secondary Jobs
If the Court disregards income, in whole or in part, from overtime or a secondary job, due consideration must first be given to certain factors including but not limited to the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime on the parenting plan, and whether the extra work is a requirement of the job. If, after a child support order is entered, a payor or recipient obtains a secondary job or begins to work overtime, neither of which was worked prior to the entry of the order, there shall
be a presumption that the secondary job or overtime income should not be considered in a future support order.
C. Self-Employment or Other Income
Income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, is defined as gross receipts minus ordinary and necessary expenses required to produce income. In general, income and expenses from self-employment
or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases
this amount will differ from a determination of business income for tax purposes.
Expense reimbursements, in kind payments or benefits received by a parent, personal use of business property, payment of personal expenses by a business in the course of employment, self-employment,
or operation of a business may be included as income if such payments are significant and reduce personal living expenses.
1 If a parent receives social security benefits or SSDI benefits and the child(ren) of the parties receives a dependency benefit derived from that parent’s benefit, the amount of the dependency benefit shall be added to the gross income of that parent. This combined amount is that parent’s gross income for purposes of the child support calculation. If the amount of the dependency benefit exceeds the child support obligation calculated under the guidelines, then the Payor shall not have responsibility for payment of current child support in excess of the dependency benefit. However, if the guidelines are higher than the dependency benefit, the Payor must pay the difference between the dependency benefit and the weekly support amount under the guidelines. Rosenberg v. Merida, 428 Mass. 182 (1998).
When the Court finds that either parent’s gross income, in whole or in part, is undocumented or unreported for tax or other governmental purposes, the Court may reasonably impute income to the parent based on all the evidence submitted, including but not limited to evidence of the parent’s ownership and maintenance of assets, and the parent’s lifestyle, expenses and spending patterns.
In circumstances where the Court finds that a party has unreported income, the Court may adjust the amount of income upward by a reasonable percentage to take into account the absence of income taxes that normally would be due and payable on the unreported income.
E. Non-Parent Guardian
The income of a nonparent guardian shall not be considered for purposes of calculating a child support
II. FACTORS TO BE CONSIDERED IN SETTING THE CHILD SUPPORT ORDER
A. Relationship to Alimony or Separate Maintenance Payments
These guidelines have been developed with the understanding that child support is nondeductible
by the Payor and nontaxable to the Recipient. These guidelines do not preclude the Court from deciding that any order be designated in whole or in part as alimony without it being deemed a deviation provided the tax consequences are considered in determining the order and the after tax support received by the Recipient is not diminished. It is the responsibility of 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
These guidelines are also intended to protect a minimum subsistence level for those parents obligated to pay child support 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 per month ($18.46 per week) should enter. This minimum should not be construed as limiting the Court’s discretion to set a higher or lower order, should circumstances warrant, as a deviation from the guidelines. These guidelines are not meant to apply where the combined annual gross income of the parties exceeds $250,000. In cases where income exceeds this limit, the Court should consider the award of support at the $250,000 level as the minimum presumptive order. Additional amounts of child support may be awarded in the Court’s discretion.
D. Parenting Time
These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children’s best interests. These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one third
of the time with the other parent. Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The difference in the calculations shall be paid to the parent with the lower weekly support amount. 2 Where there is more than one child covered by this order and each parent provides a primary residence for one or more of these children, child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient using the number of children in his or her care, and second with the other parent as the Recipient using the number of children in his or her care. The difference in the calculations shall be paid to the parent with the lower
weekly support amount. 3
E. Child Care Costs
Reasonable child care costs for the child(ren) covered by the order and due to gainful employment of either party are to be deducted from the gross income of the party who pays the cost. In appropriate circumstances, child care costs may include those due to training or education reasonably necessary to obtain gainful employment or enhance earning capacity.
F. Age of the Children
These guidelines apply to cases involving children entitled to support from ages 018
and children over 18 who are still attending high school. In establishing support orders for children over age 18, to the extent permitted by law, the Court shall exercise its discretion considering the reason for the continued residence with and dependence on the Recipient, the child’s academic circumstances, living situation, the available resources of the parents, the costs of postsecondary education for the child and the allocation of those costs between the parents, and the availability of financial aid.
G. Health Insurance, Uninsured, and Extraordinary Medical Expenses
1) Health Insurance
Each party may deduct from gross income the reasonable cost of individual or family health insurance actually paid by that party. However, if there is an additional cost to insure a person not covered by this order, and the Court determines that such additional cost would unreasonably reduce the amount of child support, then some or all of such additional cost shall not be deducted.
When the Court makes an order for child support, the Court shall determine whether health insurance is available through an employer or otherwise available at a reasonable cost that may be extended to cover the child. When such insurance is available, the Court shall include in the support order a requirement that such insurance for the child be obtained or maintained. The Payor and Recipient must agree in writing that such insurance will be provided by other means not including MassHealth.
Health care coverage shall be deemed available to the Payor at reasonable cost if it is available through an employer. The Court may determine that the cost of health care coverage is unreasonable if it creates an undue hardship on the Payor. If the Court determines that health care coverage is not available to the Payor at a reasonable cost, then the Court shall enter an order requiring the Payor to obtain and maintain health care coverage for the child if and when the parent has access to such coverage at a reasonable cost. 4
2) Dental/Vision Insurance
Each party may deduct from gross income the reasonable cost actually paid by that party of dental/vision insurance insuring the children covered by this order.
2 For purposes of these calculations, no deductions on line 1e of the Guidelines Worksheet shall be made.
3 For purposes of these calculations, no deductions on line 1e of the Guidelines Worksheet shall be made.
4 Current statutory language permits the Recipient of child support to provide health insurance if there is agreement, but absent agreement the Court lacks authority to require the Recipient to provide health insurance. At such time as the legislature amends the law, the Guidelines should be construed, to the extent possible, consistent with any amendments to Massachusetts law and federal regulations (45 C.F.R. parts 302, 303, 304, 305, and 308).
If there is an additional cost to insure a person not covered by this order, and the Court determines such
additional cost would unreasonably reduce the amount of child support, then some or all of such additional cost shall not be deducted from gross income.
3) Routine Uninsured Medical and Dental Expenses
The Recipient shall be responsible for payment of the first $250 each year in combined routine uninsured health and dental/vision expenses for all the children covered by this order. For amounts above that limit, at the time of entry of establishing or modifying the support order, the Court shall allocate expenses between the parties without adjustment to the child support order.
4) Uninsured Extraordinary Medical and Dental Expenses
The payment of uninsured extraordinary medical and dental expenses incurred for the children, absent agreement
of the parties, shall be treated on a case by case
basis. (Example: orthodontia, psychological/psychiatric counseling, etc.)
Where the Court makes a determination that such medical and dental services are necessary and are in the best interests of the child(ren), the Court shall allocate such expenses between the parties.
H. Attribution of Income
Attribution of income is intended to be applied where a finding has been made that either party is capable of working and is unemployed or underemployed. The Court shall consider all relevant factors including without limitation the education, training, health and past employment history of the party, and the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.
I. Other Orders and Obligations
When an initial order is sought for a child covered by this order, the following amounts actually paid to support a former spouse or a child not covered by this order shall be deducted from gross income for purposes of calculating the child support amount under this order:
1) the amount of prior orders for spousal and child support; or
2) voluntary payments to support a child with whom the Payor does not reside, to the extent the amounts are reasonable; or
3) a hypothetical amount of child support for a child with whom the Payor resides but for whom no child
support order exists, which hypothetical child support amount shall be calculated according to the
Guidelines Worksheet using the gross incomes of both parents of the child.
The party seeking to take such deductions from gross income must have a legal obligation or duty to support the former spouse or child and must provide evidence that such support or voluntary payments are actually being paid. To the extent that prior orders for spousal and child support are actually being paid, the Court should deduct those payments from the party’s gross income before applying the formula to determine the child support order. Voluntary payments for other children a party has a legal obligation to support may be deducted in whole or in part to the extent the amounts are reasonable. It is the party’s obligation to provide evidence of the existence and payment of prior orders or voluntary payments. Obligations to 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 obligations should not be considered a reason to decrease existing orders.
J. Families with More than Five Children
The guidelines formula applies to families with 1-5 children. For more than five children, the order should be at least the amount ordered for five children.
K. Other Child Related Expenses
In such cases where the Court makes a determination that there are additional child related
expenses such as extracurricular activities, private school, postsecondary
education or summer camps, which are in the best interest of the
child and which are affordable by the parties, the Court may allocate costs to the parties on a case by case basis.
A. A child support order may be modified if any of the following circumstances exist:
1) the existing order is at least three years old; or
2) health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or
3) health insurance not previously available to a party at reasonable cost has become available; or
4) any other material change in circumstances has occurred.
B. Upon a request for modification of an order that deviated from the guidelines at the time it was entered, the guidelines shall apply unless:
1) the facts that gave rise to deviation still exist; and
2) deviation continues to be in the child’s best interest; and
3) the guidelines amount would be unjust or inappropriate under the circumstances.
Paragraph B above does not preclude deviations based on other grounds set forth in Section IV or grounds for modification as set forth in Paragraph A above.
The Court, or the parties by agreement approved by the Court, may deviate from the guidelines and overcome the presumptive application of the guidelines provided the Court enters specific written findings stating:
1) the amount of the order that would result from application of the guidelines;
2) that the guidelines amount would be unjust or inappropriate under the circumstances;
3) the specific facts of the case which justify departure from the guidelines; and
4) that such departure is consistent with the best interests of the child.
Circumstances which may support deviation include, but are not limited to, the following:
1) the parties agree and the Court approves their agreement;
2) a child has special needs or aptitudes;
3) a child has extraordinary medical or other expenses;
4) application of the guidelines, particularly in low income cases, leaves a party without the ability to self
5) Payor is incarcerated, is likely to remain incarcerated for an additional 3 years and has insufficient
financial resources to pay support;
6) application of the guidelines would result in a gross disparity in the standard of living between the two
households such that one household is left with an unreasonably low percentage of the combined
7) a parent has extraordinary medical expenses;
8. a parent has extraordinary travel or other expenses related to parenting;
9) application of the guidelines may adversely impact reunification of a parent and child where the child
has been temporarily removed from the household based upon allegations of neglect; or
10) 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.