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Wednesday, November 27, 2013

What is the Purpose of Section 3 on the New Child Support Guidelines Worksheet?

Asking why Section 3 is on the new child support guidelines worksheet is like asking why bad things happen to good people.  Everyone has a different theory and none of them are really satisfying.

The 2009 Child Support Guidelines Worksheet had two sections which broke the worksheet down into an Income Section and a Calculation Section, with a resulting recommended child support amount.  The new 2013 Child Support Guidelines worksheet changes these two sections and the calculations, which he have discussed previously.

In addition, the 2013 guidelines added a new section, Section 3 titled: AVAILABLE INCOME ABOVE $4,808 (If applicable.)

In cases where the combined household income is less than $4,808 per week ($250,000 per year), Section 3 will show all zeros.  However, if the family income exceeds this figure, Section 3 displays the proportional amount that each party has left-over in gross income after using the first $4808 per week in combined income to calculate the minimum presumptive child support order.

For example, if the payor has $7,692 in income per week ($400,000 per year) and the recipient has $1,923 per week ($100,000 per year), then the child support guidelines would use only the first $4,808 per week and assign 80% of the child support figure to be paid by the payor because the payor has 80% of the household income.  This means that the child support calculation in Section 2 of the worksheet only used the first $3,846 from the payor and $962 from the recipient (totaling $4,808 per week).

This leaves $3,846 and $962 left-over, unused for this calculation. Section 3 would then display these unused funds.

While the language of the Guidelines changed slightly relating to how the court should calculate child support in these high income cases, it really only clarified how to calculate the minimum presumptive order using a proportion of each parties income to the total income.  The Guidelines make no mention of Section 3 and what the court is meant to do with this information.

The worksheet itself indicates below the title of Section 3 that this section should be "(Considered at the discretion of the Court.)"  Without any guidance as to how this information should be used we are all struggling to know what to tell clients and how to prepare presentations for the court on this issue.

One Judge who was on the Task Force has indicated that Section 3 was for mostly informational purposes.  By providing the information directly on the worksheet it gives Judges the ability to decide whether there should be alimony (in appropriate cases) or additional child support.  Of course this information was available before, but the worksheet now saves the Judges from doing additional math.

In addition, there is a "suggestion" on page 68 of the Final Report of the 2012 Task Force regarding how we might uses this information:

"The Task Force was urged by the bar to provide guidance on how to calculate child support when the combined available income exceeds $250,000. Public input suggests that a lack of guidance leads to inconsistency in results throughout Massachusetts. In an efort to alleviate any inconsistency, the Task Force suggests that in cases where combined available income exceeds $250,000, the guidelines support amount should be applied on the first $250,000 and then applied to the combined available income above $250,000 ($4,808 weekly) in the same proportion for both the recipient’s and payor’s income as provided on line 1h of the Child Support Guidelines Worksheet." 
Essentially this recommends using the figures provided in section 3 and entering them back into the guidelines worksheet as Income in Section 1 to see what additional child support might be recommended.  In the example above, ($3,846 and $962 respectively left-over)  these figures would be plugged back into a new worksheet in the income section and yield a second child support amount.  Because I have conveniently used exactly $500,000 of total income in this example, the results will be double the minimum presumptive order (because the second worksheet will result in the same award as the first worksheet).

In cases where the total income exceeds $500,000 this could mean preparing even more guidelines worksheets, because there would still be additional income in Section 3 even on the second worksheet.

While informative, this is non-binding since this "suggestion" didn't end up in the final Guidelines.  The obvious practice tip for attorneys, though, is to include this additional calculation in their presentation to the court, along with this quote from the Task Force Report.  Even in mediation and collaborative divorce cases, I would suggest providing this information to the parties as it may assist them in reaching a reasonable settlement figure.



Wednesday, November 6, 2013

Is it Easier to Remove a Child of Unmarried Parents from the Commonwealth?

This past summer we posted a full blog series on issues facing Unmarried Parents in Massachusetts.  While many issues that unmarried parents face may be different than those faced by married parents, most of the issues will be the same.  Parenting a child still comes with may of the same worries, financial obligations, affections, and lessons, regardless of the parents' relationship with each other.  However, when legal realities collide with economic or practical realities, there may be significant differences in how unmarried parents are treated.

Removal cases are one example of this disparity in Massachusetts.  Removal is a legal term of art for the simple concept of when one parent wants to move their residence out of state and take their child with them.  In Massachusetts, M.G.L. c. 208 Section 30 covers the removal of minor children in a divorce case, and prohibits removal without consent of both parents or order of the court.  We explore in what circumstances the court will grant such an order in this previous post.  The determination of the court in such cases turns on the custody arrangement of the parents and the benefits and disadvantages of the child to moving.

However, in the case of unmarried parents, the custody situation starts out much differently than in divorce cases.

If the father is not on the birth certificate, then the mother is by default the only legal parent and until and unless the father seeks a determination of parentage, the mother can remove the child to a different state.  If this happens and the father doesn't act immediately to seek a determination by the court, jurisdiction over custody could soon change to the other state, which would make it very difficult (if not impossible) to force her return.

If the father is on the birth certificate, but the parties have not been to court yet, there is still a different standard for determining joint legal custody in the case of unmarried parents.  In a divorce case, there is a presumption that the parties start with joint legal custody.  However, under the paternity statute, M.G.L. c. 209c Section 10 the court must make a finding of joint parenting to order joint legal custody to unmarried parents.

The process for applying this standard and making a determination relative to removal in the case of unmarried parents is outlined in the Smith v. McDonald case, a case where the Massachusetts Supreme Judicial Court overturned the trial court's ruling that a mother was required to return the child from New York to Massachusetts.

Visit our site for more information about the law relating to unmarried parents in Massachusetts.

How often do Collaborative Divorces Succeed?

One of the downsides of Collaborative Law, as with any alternative dispute resolution process, is that if you do not settle your case outside of court, there is still the risk that you will end up in court litigating your dispute.  Many people still choose to give amicable settlement a fair chance, but a common question when trying to make this choice is "how often do these cases succeed in settling outside of court?"  While every case is different and will present unique issues, there is now some available data to answer this question.

The International Academy of Collaborative Professionals (IACP) has collected data on Collaborative cases from the professionals involved in those cases through the use of an IACP Professional Practice Survey and reported some of their findings in The Collaborative Review Spring 2012 issue.

Based on a a total of nine hundred and thirty–three cases, which were reported from October 16, 2006 through July 6, 2010, they found that:

 "86% of all reported Collaborative cases settled with an agreement on all issues."  

In addition, 14% of the cases that terminated without a full agreement had reached a partial agreement.

These percentages confirm that most Collaborative cases will settle, and that is no surprise when clients are well informed beforehand about the process and choose to enter a process aimed at working together.  Hopefully, this information will lead to more people choosing to utilize the Collaborative process.  Especially given the amount of control over your own life that the Collaborative process provides, and the positive feedback we typically receive from our collaborative clients.


Are Complaints for Contempt getting Harder to Win?

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment.  Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration.

To succeed on a Complaint for Contempt you must prove two things: first, you must prove that there has been a "clear and unambiguous" order or judgment and second, you must prove that the other party "knowingly violated" the order.

If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers may also now require that you prove an "ability to pay."  Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration).  This wouldn't excuse the debt, but allow a Defendant to postpone payment or make payments over time.

In Turner, the SJC seems to have moved the burden of proving an "ability to pay" to the Plaintiff, if the Plaintiff is requesting incarceration as enforcement.  In addition, Turner suggests that when a Plaintiff has assistance (from counsel or DOR), the state may need to provide the Defendant with counsel if incarceration is possible.

While the ruling does not require that the Defendant have counsel when Plaintiff doesn't have counsel, " the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order."

In Massachusetts, some Judges have expanded on this case and expressed that to find a person in Contempt now requires an express finding of ability to pay, which may need more than just a showing that Defendant's financial statement is incomplete.

We, therefore, offer the following practice tips when seeking to prosecute a Complaint for Contempt in Massachusetts:

  • Request a Financial Statement (and possibly further discovery) from the Defendant in advance of the Contempt hearing.
  • Bring a Proposed Judgment and Proposed Findings of Fact to the Contempt hearing.
  • When necessary, subpeona information regarding bank accounts or employment to assist in proving a Defendant's "ability to pay."



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