Big Changes, Little Changes, Typos & some Unexpected Results

Whenever application of the guidelines requires a payor to pay a recipient more than 40% of the payor’s available income in Line 3a of the guidelines worksheet for a current child support order, there shall be a rebuttable presumption of a substantial hardship, justifying a deviation from the guidelines.

Multiplier for Families with More than One Child – Table B of the Child Support Guidelines was updated with new rates for multiple children which will likely result in increased support calculations for many families with more than one child.  Here are the two Table Bs side-by-side:

When one child is over 18 the discount rate remains 25% but when some children are over 18 and some are under 18, the discount rates changed slightly reflecting these changes in Table B.  This has less of an impact overall then the rate changes in Table B above.

Child Care Costs Adjustment – The 2018 guidelines reduced the available income of both parties by the child care costs paid, and had an additional section (combining these costs with health insurance costs as further described below) that then further adjusted the child support order in an attempt to have the parties share the burden of this cost proportionally.  In 2018, the proportional cost was capped at 15% of the child support order.  The 2021 guidelines changed this approach with the intent of having parents share the first $355 per week per child proportionally to their available income.  

To accomplish this proportional split, the first reduction against available income was removed (as essentially double-counting this expense), and the cap was made on the amount per week per child rather than as a percentage of the support order.  These changes are all reflected on the updated worksheet and do represent a more clear way of trying to apportion these expenses.  Given this goal, I still wonder why this expense is not simply separated from the worksheet altogether, but at least this adjustment cleans up some of the issues with the 2018 approach.  The one remaining objection I have to this cap is that it fails to recognize that child care costs vary greatly by location in Massachusetts and this cap might make sense in some areas, but not in other parts of the Commonwealth.

Health Care Costs Adjustment – The 2018 guidelines treated health insurance costs the same as child care costs (as described above).  The 2021 guidelines changed this approach to simply include a credit for health insurance costs against available income.  There is no proportional sharing built into the 2021 guidelines.  The guidelines were also updated by amending the language for when the court orders a parent to provide health coverage and what is considered “reasonable in cost” and when it might create an “undue hardship” for a parent to pay health insurance.  

One of the factors for the court determining whether to order a parent to maintain coverage for a child, is whether the health care coverage exceeds “5 per cent of the gross income of the party.”  Unfortunately premiums paid by many families do exceed 5 per cent of the parent’s gross income.  It’s unclear what the guidelines intend the court to do in these cases.  If the court doesn’t order health insurance coverage, but the parties don’t qualify for MassHealth, then the children are going to need coverage from somewhere and this section doesn’t really address the fact that parties may (and often will) still choose to pay health insurance that exceeds this percentage of their gross income.  In so doing, one parent is providing a benefit that the other parent is no longer significantly sharing under these guidelines.  

Notable Changes

“Parties” instead of “Litigants” – The Task Force recommended eliminating the word “litigant” from the Preamble and instead inserting “parties.”  While this is a minor change it is a welcome reminder that many parents relying on these guidelines do not see themselves as adversaries, but rather co-parents with the ability to work together and make agreements in the best interest of their children, even about money!

Updates relating to Social Security (SSR, SSDI & SSI) Benefits – Some changes were made in the Source of Income section to further clarify that Supplemental Security Income (a means-tested financial benefit) is not included as income in calculating child support.  In contrast, Social Security Retirement and Social Security Disability Income are included.  In addition, while the 2018 guidelines contained reference to the Rosenberg v. Merida case (which required also taking into account a dependency benefit received by a parent), the 2021 guidelines further clarify how to account for this and include worksheet directions for this type of income.

Additional Income included in Calculation – The Task Force added two types of income, previously not listed, that can be included in income for calculating child support:

• “income derived from stock options and similar incentives, excluding any income from the coverture portion allocated at the time of the divorce of the parties subject to this child support order” and 
• “alimony consistent with Calvin C. v. Amelia A., 99 Mass. App. Ct. 714 (2021)”.

Both of these additions are due to appeals court rulings.  The first addition, stock options not allocated during the marriage, is an issue that was addressed in Ludwig v. Lamee-Ludwig.  

The second addition includes specific reference to the case (Calvin C. v. Amelia A.) where alimony was being paid by the Husband but child support was being paid by the Wife, and how to handle the alimony in that instance.  The Appeals court approved the lower court’s exclusion of the alimony from the child support calculation, in the Calvin C. v. Amelia A., case, and noted that it’s ruling was specifically limited to cases where there are “two payors whose combined income is less than $250,000, who have reciprocal support obligations to one another, and a materially reduced postmarital lifestyle.”  

In making this supposedly limited ruling for parties with crossing support orders, the court noted 

that where one spouse is the sole payor of both alimony and child support, and alimony is calculated first, it is usually necessary to “us[e] the parties’ adjusted, postalimony incomes when calculating child support to avoid running afoul of G. L. c. 208, § 53 (c) (2) . . . .” Calvin C. v. Amelia A., 99 Mass. App. Ct. 714, 721 (2021).

-excerpt from the commentary to the 2021 Guidelines.

The Appeals court in Calvin C. v. Amelia A. specifically noted that “[t]his language is intended to provide judges with necessary flexibility to address the needs of the parties in a particular case without running afoul of the act”, and including this specific reference in the 2021 Guidelines is obviously reiterating that point.

Overtime and Secondary Income Clarification  – The 2018 Guidelines included a requirement that “due consideration must first be given to the history of the income” (emphasis added) when deciding whether to disregard some or all of overtime or a second job.  The word “first” was removed in the 2021 guidelines, making this factor equal in weigh to the other factors: “the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime or secondary job on the parenting plan, and whether the overtime work is a requirement of the job.”  

Relationship to Alimony Clarification – The 2018 Guidelines included a section indicating that alimony under the Alimony Reform Act could be “calculated first, and in other circumstances child support may be calculated first.”  This opened the door to argue that alimony was possible even when there was a presumptive child support that fit into the guidelines (under $250,000 of combined household income in 2018), by running alimony on that same income instead of child support.  The 2021 Guidelines added clarification that this choice can be made “[a]t any combined income level” and that a factor to consider in making this choice is “the total amount of support that would be available to each household.”  

Uninsured Medical and Dental/Vision Expenses Contribution – The words “out-of-pocket and” were added to the guidelines when referring to uninsured expenses to clarify that the expenses being split could include expenses either because someone is uninsured or because they are insured but there are still out-of-pocket expenses not covered by insurance, e.g. co-pays and deductibles.

Amendments to the Circumstances for Finding Deviation – A few small language changes were made to the deviation factors presumably meant to clarify certain situations:

1. The phrase “minimum support order amount” was replaced with the phrase “setting a child support at $0” in order to emphasize “that in certain circumstances setting a child support order at $0 may be appropriate.”

2. The word “time” was added to the end of the deviation factor: “a parent has extraordinary travel or other expenses’ related to parenting time” to clarify this factor.

3. The factor “a parent is absorbing a child care cost that is disproportionate in relation to his or her income;” was changed to “a parent has extraordinary child care costs for the children covered by this order;” to clarify the emphasis is on the cost not the relation to income.

Typos & Unexpected Results

As with any formula intended to make every situation fit into one size box, there are bound to be unexpected results in some cases, especially the more complicated the formula gets.  The Guidelines Worksheet expanding to 4 pages is a reflection of the rising complication of the calculations and has resulted in a few notable results that might raise some eyebrows;

Typo on Line 8b – On the initial draft court worksheet (released with the Guidelines and likely to be updated) line 8b lists the formula for this line as “8a x 3b”.  Line 8a is the combined additional income above $7,692.  Line 3b is the combined available income (a dollar amount).  Line 3c is the share of combined additional income (a percentage).   In context multiplying the income over $7,692 by the combined available income doesn’t make sense.  The formula for line 8b should read “8a x 3c”.  

Ambiguity on Line 6e – The initial draft court worksheet (released with the Guidelines) line 6e lists the formula for this line when 6d is < 10% as “6c or ((6d + 10%) x 3a) for each parent, whichever is less, but not less than an amount from the shaded area of the Guidelines Chart”.  This formula doesn’t indicate which 3a to use. Only one option makes sense though:

The purpose of this calculation is to lower the support amount when the recipient’s income is sufficiently large compared to the initial support calculation (i.e. 6c ÷ 3a < 10%).  This formula only makes sense if the 3a referenced in the formula is the “other parent’s 3a” in the same way that line 7b references the “Payor 3a”.  If it’s the same parent’s 3a then the comparison formula, ((6d + 10%) x 3a), would never be less than 6c, so this line would be superfluous.  

Thus line 6e, in order to avoid any ambiguity, should be amended to “If 6d is < 10%, enter 6c or ((6d + 10%) x the other parent’s 3a) for each parent, whichever is less, but not less than an amount from the shaded area of the Guidelines Chart”

Unexpected Result related to Disparate Incomes – When a support recipient has significant income, or when parents have significantly disparate incomes and share or split parenting time, small changes in their income can result in big changes in the support order.  This is due to the Section 6 and Section 7 calculations that check to see when a payor’s support amount is less than 10% of the recipient’s income.  Because these figures are rounded to the nearest dollar, and the nearest whole percentile, small changes can have a significant effect.  

Consider the following example: Parents of 2 children under 18; the parent with the children 2/3 of the time has an income of $3,568 per week and the other parent has the children 1/3 of the time and earns $1,500 per week.  The child support amount is $339 per week.  However, if the first parent’s income goes up just $1 to $3,569 per week then the child support drops to $285 per week (a $54 per week difference).  This seems non-sensical but is correct, due to the calculation on line 7a and 7b.  This also can be a very different result depending on whether you choose to round the percentage on 7a to a whole number or allow for decimals. 

Practice Tip: Keep a close eye on the potential for small changes having a large impact whenever line 6c or 7a is close to 10%.

Unexpected Result related to relatively Small Incomes – When a payor has available income of about $250 per week, or when either parent has this amount of income with shared or split parenting time, small changes in their income can result in big changes in the support order.  This is due to the 2021 Child Support Guidelines Chart calculations that check to see when a payor’s available income is less than $250.  There is a jump in the resulting order when the income moves from $249 to $250 causing some odd results

Consider the following example: Parents of 2 children under 18; the parent with the children 2/3 of the time has an income of $0 per week and the other parent has the children 1/3 of the time and earns $249 per week.  The child support amount is $20 per week.  However, if the payor’s income goes up just $1 to $250 per week then the child support jumps to $77 per week (a $57 per week difference).  This seems non-sensical but is correct, due to the calculation on line 3e and 5c.  

Practice Tip: Keep a close eye on the potential for small changes having a large impact whenever line 3a or 3d is close to $250.  

If you have comments about any of these changes, noticed any other typos or unexpected results, or you want to note any other changes we missed, please comment below or reach out to us directly.