Massachusetts Child Support Guidelines and Shared Parenting: Skewed Results with a Literal "Average" (Part Seven of Ten)

As I began to explore in Part Six, the 2013 Massachusetts Child Support Guidelines formula for the intermediate, shared parenting category, of 33-50 percent of parenting time, is quite poorly conceived and drafted, in that it does not specify the use of a negative number in computing the "average" where it is an average of transfers by different parents one to the other.  Literally interpreted, the formula works well, and as designed, in all cases in which the parent with less parenting time also has a higher income.

Where it doesn't work, and the results skew in the wrong direction, in a manner contrary to the rationale of the guidelines, is in the case where the parent with less parenting time also has a lower income. This was an oversight by the guidelines committee, who probably failed even to consider that situation, and most certainly failed to test the formula for that situation.  Such an oversight is unfortunate, as the lesser-time parent who most needs the "break" or "credit" for extra time is the parent who makes less income than the primary custodial parent.  But under a literal interpretation of the guidelines (and particularly the term "average"), the literal results obtained for such a parent are absurd as the effect could be to punish rather than reward the extra time.

In many cases, results under the literal average approach would be laughably ridiculous. Take this example: A couple with one child mediate their divorce, and decide Mother will have 40 percent of the parenting time and Father 60 percent. The available weekly income, after deductions, is $4500 for Father and $200 for Mother. Mother would pay $22/week to Father if he had sole custody (one third/two thirds split), Father would pay Mother $730/week if she had sole custody, and Father would pay Mother $708/week if they had equal time. With their actual 40/60 split, the literal average calculation would be $365. If the parent with less time must pay, that would mean Mother would need to pay Father $365 per week, nearly double her available income of $200! If instead we used my proposed negative sign (which should have been explicitly included in the formula) to compute the average and allowed the parent with more time to pay, we would get a much more reasonable payment from Father to Mother of $343, the perfect compromise between putative transfers in opposite directions.

It is not only in such extreme examples, but in all cases involving a parent with both less parenting time and less income, that use of the second cross-calculation with a literal average will skew in the wrong direction, as will be demonstrated in charts in the next blog in this series. Under a literal interpretation of average and a requirement that the parent with less time always pays, parents with both less time and less income would actually have a disincentive to gain more than 33 but less than 50 percent of the parenting time, as they could pay more that way, sometimes way more. In fact, they would do well to have exactly 33 percent, as they could pay more both if their time were one percent less (through upward deviation) and if it were one percent more!

One solution to this problem is to interpret the guidelines to allow the person with less time and income to receive child support from the richer, primary custodial parent, as would automatically occur if we used the negative sign as I propose to compute the average of putative transfers from different payors to each other. Guidelines calculations flow logically from the rationale of the shared-income model. The method is to add together the parents’ available incomes, then deem a portion as shared support, and finally allocate from one parent to the other relative to income. That basic approach suggests such an outcome is possible, fair and logical; furthermore, it comports with the preamble’s goal that “to the extent either parent enjoys a higher standard of living” the child should be “entitled to enjoy that higher standard.”

A second solution would be instead to deviate from, and effectively ignore, all calculations where payments from different payors are to be averaged. Effectively ignoring the literal average, perhaps by deviating in all these cases using the explicit disproportionality provision, might be the more reasonable course, as the real problem is that the guidelines failed to account for this particular situation.  There were economists who advised the guidelines committee, but they appeared to have done so only before the guidelines committee deliberated and wrote the new guidelines (this time, the committee was a small group of a few judges and lawyers who work in the system, and there were no economists or accountants serving directly on the committee, as there had been for the previous guidelines committee that created the 2009 Guidelines), and so this glaring mistake was not caught before the guidelines were completed and became final and effective.

However we interpret the new provisions, problematic policy implications will persist. There may be unwelcome incentives to manipulate the dependent variables of child support and parenting time to influence the other, especially while these new provisions remain murky. Perverse incentives and consequences may always exist to some degree in any child support scheme. Our goal should then be to give direction that is as clear, predictable and fair as possible, to guide parents to a result in their children’s best interests.   This unfortunate provision for the "average" is just one of a number of provisions in the 2013 Guidelines - as discussed in the last several blogs in this series - whose lack of clarity and predictability may cause more problems than they solve.

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 In Part Eight, I will further analyze and explore effects of the 2013 Guidelines through the use of charts.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines and Shared Parenting: Wrestling With Those Puzzling Provisions of the 2013 Guidelines (Part Six of Ten)

In Part Five, I began to discuss the puzzling new provisions of our current 2013 Guidelines and ended with the presentation of what I see as seven inter-related and overlapping issues, which I will further examine in this part using a recent court case as an example.  First, a short restatement of those basic seven issues (for a more detailed description of these issues themselves, see Part Five again):

1. How do we count parenting time to arrive at percentages?
2. When and how should we deviate when the noncustodial parent has less than 33 percent?
3. What does "approximately equally" mean?
4. What does "approximately one-third of the time" mean?
5. Do we want dramatic changes at the 33 percent line?
6. What does “average” mean here?
7. Must the “recipient” always be the parent with more parenting time? 

Nearly all of these issues arose in a recent post-divorce case. In it, I represented a father with less parenting time and less income than the mother. Father believed he had his children 36-38 percent of the time, while Mother claimed he had 33 percent or even less. How to calculate time – days, nights, school days, weekends, holidays – is an open question that threatened to be a big one for us before we managed to settle right before trial, although without resolving that issue.

The 2013 Guidelines unfortunately made percentage of time important without also stating how to calculate it. Before the 2013 Guidelines, there was rarely a need to calculate parenting time with precision. Case law pre-dating the new guidelines suggests night time and sleeping hours cannot be discounted in favor of “quality time” during the day. Katzman v. Healy, 77 Mass.App.Ct. 589, 594 (2010) (" The law has not…neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it.”) But that 2010 case by itself is insufficient to answer the questions posed by the 2013 Guidelines, and there is almost no help from other cases or statutes. Had we gone to trial, Father and Mother would have advanced evidence and arguments for very different ways to count time and it is uncertain how the judge would have ruled.

Another question was how to calculate support for the new 33-50 percent parenting time category. Father’s income was slightly under $100,000, and Mother’s was about $200,000. If the parenting share was an approximately one third/two thirds split, Father would pay $290/week to Mother. I argued Father was in the new 33-50 percent zone and should benefit from the second cross-calculation.

Here’s where it gets interesting. If Father was in that new zone, we needed to “average” the $290/week sole custodial support award from Father to Mother with the joint custodial award, a $308/week support award from Mother to Father. The literal “average” of $308 and $290 is $299. I argued the “average” should require the use of a negative number for the smaller number, to indicate the difference in direction, following mathematical logic and a belief the intent of the averaging was to effect a perfect compromise. The numbers to be averaged were nearly equal, but in opposite directions, and so I reasoned we should take the average of $308 and -$290, or $9, thus requiring a payment of $9 from Mother to Father.

I contended we should treat the “average” in all cases in a mathematically consistent way, as the true midpoint. When numbers to be averaged are going in the same direction, that is, when the parent with less time also makes more money, and would be the payor under both a joint custody calculation and a sole custodial calculation, the “average” would properly yield a number exactly between those two numbers, a perfect compromise. But in our very different case, a mathematically consistent compromise between my client’s paying $290 and his receiving $308 would be an award to him of $9. That $9 number would be the precise midpoint between the numbers to be averaged if graphed as a positive and a negative number to reflect their opposite directions.

Opposing counsel countered that language in the guidelines suggests the “recipient” is always the parent with more time; furthermore, there is no support at all for my crazy idea ever to use a negative number when calculating the average. The Guidelines state: “The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.” They speak of averaging the base child support paid to the recipient and the shared custody cross calculation paid to the recipient.

Still, if the recipient is always the parent with more time, and we must always use the literal average, then how could we justify using this literal average $299? Furthermore, if someone had to pay $299 and it had to be Father, why would Father then have to pay $9 more than the $290 he would have paid with less parenting time, that is, under a straight one third/two thirds split?

Imagine if the variables had been only slightly different – a real possibility – with numbers to average being exactly equal, $300 to him and $300 to her. The average would then also be $300. So who pays whom? The literal average will properly function in all cases where the putative support numbers go in the same direction, as it would be the exact compromise, equidistant between the two positive numbers. However, it is logical to require use of a negative number for one of the numbers when they represent transfers in opposite directions, to get the number that is similarly the real compromise, the true midpoint between those numbers to be averaged, here (-$300 +300)/2 = 0, and in my actual case, (-$290 + 308)/2 = $9.

In many cases, results would be even more skewed than in my real-life example and the slightly modified hypothetical I just posed, if we merely insisted upon using the literal average without the negative sign, and always required the parent with less time to pay the other. In fact it is in all cases where the parent with less time also has less income that results skew in the wrong direction with such an approach. In the most extreme examples, this literal approach yields the absurd result that the payor would pay more than his/her actual available income! I will demonstrate that next.

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 In Part Seven, I will show those most absurd results of the new formula using a literal "average".

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines and Shared Parenting: Puzzling Provisions in the 2013 Guidelines (Part Five of Ten)

The 2013 Massachusetts Child Support Guidelines introduced some interesting but puzzling provisions. As I said earlier, the 2013 Guidelines represented the next awkward step, after that first, giant leap of the 2009 Guidelines, to incorporate evolving principles of shared income and shared parenting. Now I will begin to discuss, in this and the following several parts of this series, that next awkward step. The 2013 Guidelines created a new category between sole and joint custody for parents who have their children between 33 and 50 percent of the time. For them, support is to be the “average” of the amounts that would be paid under joint custody (equal or "approximately" equal parenting time) and sole custody (the "approximately" one third/two thirds split).

It remains unclear how and when this new cross-calculation should apply, however, and where the boundaries lie among the new categories of parenting time. I have found several inter-related and overlapping problems with the new shared parenting and other provisions of the 2013 Guidelines, which together create these new, vague categories of parenting time.  To see directly for yourself what I will be discussing, read the 2013 Guidelines here, particularly the "Parenting Time" provision on pages 6-7 and the "Deviation" provisions on pages 11-12, specifically paragraph 13.

Others have already written about some of the problems these new provisions present. Justin Kelsey observed that use of the term “approximately” is vague, and that calculating the average “sounds simple, but in application this will be the most difficult new section because it is not entirely clear when to apply the new formula and because at times the results will be counterintuitive.” Justin Kelsey, "A Mediator’s Guide For Understanding the 2013 Child Support Guidelines Changes," Family Mediation Quarterly, Vol. 12, No. 3, pp. 9-19 (Summer 2013). William and Chouteau Levine complained that while the provision for upwards deviation for parenting time under 33 percent is vague, the “greater but not equal shared parenting” provisions, by contrast, appear “way specific.” William and Chouteau Levine, 2013 Child Support Guidelines Preview, Part 5 Slicing the Parenting Plan?, Levine Dispute Resolution Center: Divorce Mediation Blog (Aug. 28, 2013). 

In those early articles on the 2013 Guidelines, commentators had only begun to scratch the surface of a big problem, or several inter-related and overlapping ones actually, which I have organized for descriptive purposes into the following seven issues:

1. How do we count parenting time to arrive at percentages? Do we count nights? Days?Actual hours? If so, do we include sleeping hours and do we count them differently? Do we count school time, and if so how, and who gets credit: the parent who drops off the child, who picks up the child, who picks up the child when sick, who has primary custody? What about weekends and holidays? Do we count them the same as school time, or more because they constitute “quality time”?

2. When and how should we deviate when the noncustodial parent has less than 33 percent? A provision allows upward deviation if the noncustodial parent has less than 33 percent of parenting time. When should we deviate? At 32 percent? At 25 percent? By how much?

3. What does "approximately equally" mean? What is “approximately” half or equal time? Is it 46 percent? 48 percent? 49.5 percent?

4. What does "approximately one-third of the time" mean? What is an “approximately” one third/two thirds split? When does “approximately 33 percent” cease to be that and become “between 33 and 50 percent”? Is 34%/66% approximately one third/two thirds? How about 37%/63%? But don’t the guidelines suggest the second cross-calculation applies to any number between 33 and 50 percent?

5. Do we want dramatic changes at the 33 percent line? If we can deviate upwards at 32 percent and use the second cross-calculation at 34 percent, the changes at that line could be extreme, especially if the parent with less time also has a much smaller income.

6. What does “average” mean here? Is the “average” always the literal average of the two numbers, both when it would be of putative amounts paid by the same payor, and when it would be of putative amounts paid by different payors to each other? Should we use a negative sign when taking the average of numbers representing transfers in opposite directions, to find the true compromise? Without the negative sign, averages in cases where the parent has both less time and income skew in the wrong direction, contrary to the guidelines’ rationale. Instead of benefitting parents when they have more than 33 (but less than 50) percent of the parenting time, it would punish them. In extreme cases, support computed that way would exceed the payor’s actual available income!

7. Must the “recipient” always be the parent with more parenting time? Is the parent with more time the only one who can receive a child support payment? Can we shift the presumed payor and recipient?

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 In Part Six, I will begin to explore these problems through discussion of a recent court case.

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Unintended Consequences? (Part Four of Ten)

The 2009 Guidelines may well have been higher but better, as they appeared to "get the policy right," as I discussed in Part Three of this series. However, appearing to get the policy right should not be enough to satisfy us. The proof is in the pudding. The Guidelines should be examined and tested, in various scenarios, to make sure that the actual outputs comport with our view of a fair allocation of parental resources. We should not be satisfied just because the policy is “right,” if despite that, the numbers we get as outputs do not seem fair. Indeed, family law litigants will never let us ignore the results. Outputs deemed unfair are what lead to criticism that in turn results in reforms at the next guidelines review cycle. The latest changes of the 2013 Guidelines certainly reflect much expressed dissatisfaction with child support outcomes, that is, primarily with the historically high awards, in most categories, of the 2009 Guidelines. 

The record-high awards of the 2009 Guidelines themselves are not likely to have been unintended consequences, as there was dissent on the guidelines task force, even a written dissent in fact, pointing to the realization that these guidelines would produce higher, and arguably too high, awards.  The higher awards probably reflected two things, the first of which I am fairly certain, and the second less so, as it is based more on speculation and intuition: 1) the new shared-income model, in adding together income from both parents first, before deeming a portion of that shared income as child support, and then allocating according to relative income, naturally puts upward pressure on the total child support amount ultimately awarded, in absolute value terms, as joint incomes increase, and 2) the awards, in most categories, may have been allowed to go higher for the benefit of those on the task force who have traditionally favored relatively high awards, as a concession for, or in exchange for, the big shared-income and shared-parenting paradigm shifts about to be made.

Those paradigm shifts surely would have been favored by the new voice on the task force, lead by Ned Holstein, from the organization then called Fathers and Families, and now re-named the National Parents Organization, whose raison d'etre has been advocacy of their view of equal rights for fathers to parent their children and specifically for shared parenting policies and gender equity as they see them. On the other hand, in the dissent, Ned Holstein broadly criticizes the guidelines for, among other things, not having a proper rationale.  I cannot help but think, however, that he would have welcomed generally not only the new shared parenting formula but also the new shared income paradigm itself.

My strong suspicion is that the more traditional forces insisted on the relatively high awards in some implicit exchange for the big paradigm shift that paved the way for the new shared parenting provisions and the shared income model.   The task force members - an unusually large, and most diverse group, in contrast to prior task forces, and in contrast to the latest, smaller task force for 2013 as well - had to be aware that they were creating guidelines that would lead to higher awards for most categories of payors.  That is apparent from the fact that a Minority Report issued - by  Ned Holstein, with partial concurrence from two other individuals on the task force, including economist Mark Sarro, Ph.D. (whose comments appeared in the last part of this series) - which strongly protested what it deemed the "generally excessive" nature of the awards about to be instituted. (To see the conflict yourself, compare that minority report with the Task Force Report (Majority Report).

After the 2009 Guidelines issued, Fathers and Families went beyond Ned Holstein's mere words of dissent, and went to federal court, and then state court as well, in an unsuccessful effort to try to block use of the child support guidelines on that same basis.  Later in this series of blogs, I will more specifically discuss the politics of child support, ever present though often cloaked in niceties and banal platitudes about the "best interests of the children," that all-important and vague legal principle that is a buzzword easily tossed about by advocates of all stripes.

In any case, the relatively high, and arguably too high, awards that resulted from the 2009 Guidelines, were consequences well anticipated and understood, if not fully intended, by the task force, well before implementation of the 2009 Guidelines. But there were other consequences that more likely were neither foreseen nor intended, as in fact they appeared to operate at odds with the new shared-income rationale.  What am I talking about? Well, these high awards of the 2009 Guidelines - relative both to the guidelines of other states and to previous Massachusetts guidelines - relate to the fact that the new formula, though designed as a shared income model, actually in practice often functioned more like a percentage of income model. The 2009 Guidelines, according to financial planner James McCusker, in practice made child support more of a “fixed cost (as a percentage of income) rather than a variable cost.” In particular, upon comparing results under the 2005 and 2009 guidelines, McCusker found:

In all the calculations performed, the “new” guidelines produced child support amounts that approximated 25% of payor gross income. Under the “old” guidelines that percentage went down to approximately 14% when payor and recipient income reached parity.

It should come as no surprise, then, that the 2013 Guidelines, while continuing, and adding to, the new shared parenting provisions, also managed to reduce the child support awards, even by as much as 10 to 15 percent, for many categories of payors (link is to Justin Kelsey's article on the 2013 Guidelines in Family Mediation Quarterly).  Nevertheless, even after these significant reductions from the highs of the 2009 Guidelines, the Massachusetts Child Support Guidelines of 2013 remain quite high relative to other states, as detailed in a most recent, comprehensive comparison of the guidelines of all states in late 2013, by child support expert and economist Jane Venohr (article previously cited in Part One).  Her research as reported in that article reveals the remarkable fact that Massachusetts’ 2013 Guidelines still yield either the very highest or second highest awards, among all 50 states and the District of Columbia, in all three of the varied case scenarios she examined.

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In Part Five, I will begin to discuss that next, awkward step: the 2013 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: 2009 Guidelines - Higher But Better? (Part Three of Ten)

The 2009 Guidelines brought many changes as part of the move to a shared income model, all consistent with the growing recognition that the needs, income, and contributions of both parents should be considered in determining appropriate levels of support. The 2009 Guidelines provided, for the first time, a cross-calculation to be used, both in cases of joint custody, where parenting time was “approximately equal,” and split custody, where parents had primary custody of different children. These cross-calculations, which “split the difference” between the putative amounts each parent would be obligated to pay for the other’s custodial parenting, had already been used informally by many judges and practitioners, as one of the more popular methods for determining child support in these situations in the years before the 2009 Guidelines. 

Beyond this explicit treatment of joint custody and split custody situations, the 2009 Guidelines did many other things to move away from the old tendency to unduly focus primarily on the needs of the recipient/custodial parent on the one hand, and to unduly focus primarily on the ability to pay of the payor/noncustodial parent, on the other. For example, the 2009 Guidelines eliminated the “income disregard” (of the first $20,000 of custodial income), which had always only applied to the custodial parent/recipient; this had been justified as the provision of an effective exemption from consideration of what was needed for basic living expenses (“a roof over the head”) for the custodial parent, but was hard to sustain in the face of criticism that the noncustodial parent also had basic needs, including a roof over his or her head as well. 

Other provisions of the 2009 Guidelines, as very thoroughly described by Gayle Stone-Turesky and Katherine Garren in their 2009 article, such as the “circuit breaker” and the new hypothetical guideline used to account for legal obligations to support additional children though done without a court order, all reflected a new, more comprehensive, big-picture, shared-parenting kind of thinking. The new approach was to treat child support as something that springs not from the child support payor or noncustodial parent alone, but from both parents, apportioned and transferred from one party to the other, through use of a shared income formula that first calculates a deemed total shared support amount based on shared financial responsibility. 

Many of us who have been early and consistent champions of shared income and shared parenting, both as models for determining child support and as models for thinking more broadly about parenting and support issues, saw these 2009 Guidelines as a substantial improvement. We saw them as better in many ways, perhaps even for those parents, most often the fathers, who were not the recipients but instead the payors of child support, and even though the 2009 Guidelines raised the obligations for these noncustodial parents, in most if not all categories of payors, to their highest levels ever. As Mark Sarro, economist and former member of the Child Support Task Force, said at the time: “child support amounts under the new guidelines are higher almost across the board (in all but the highest-income cases).” Yet he went on to say that the 2009 Guidelines were better even though higher, because they got the policy right: 

The most notable economic improvement is that the new guidelines symmetrically account for both parents’ financial and non-financial contributions to their children. The guidelines are entirely even-handed; the same rules now apply to both payors and recipients. For example, the ad-hoc income disregard is gone. All of the income definitions and cost deductions apply equally to payors and recipients. So do the amounts in Tables A and B, in proportion to each person’s share of combined income. Conditioning support amounts on the relative contributions of both households in the same way assures that each parent pays child costs in proportion to their relative ability to pay and under the same policy constraints.

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 In Part Four, I will address some possible unintended consequences of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: The National Trend Toward Shared Income and Shared Parenting Models (Part Two of Ten)

Beginning with the 2009 overhaul, Massachusetts has been part of a national trend toward a shared income model as the favored child support guidelines model, and specifically away from models that focus primarily or solely on the obligor’s income. The first child support guidelines for the 50 states and the District of Columbia began about 25 years ago (ours was in 1987).

By 1990, there were already 31 states with shared income models, but also 15 states with percentage of obligor’s income shares models, known simply as percentage of income models, two jurisdictions with guidelines based primarily on percentage of income models, but with modifications and thus called hybrid models (Massachusetts and DC), and three states with Melson formula models.  For more detailed information about the guidelines models in use throughout the U.S., see economist and child support expert Jane Venohr's recent article in the Family Law Quarterly, Vol. 47, No. 3 (Fall 2013), "Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues" available here to ABA members.

By the end of 2013, both of the hybrid model jurisdictions, Massachusetts and DC, had moved to shared income models, and six states with straight percentage of income models had also moved to shared income models. Consequently, the new totals, as of the end of 2013, according to Venohr, are now as follows: 39 jurisdictions with shared income models, 9 with percentage of income models, and 3 with Melson formula models (hybrid models are gone altogether).

Massachusetts has also been part of the trend toward more recognition, and accounting for, “non-traditional” (to use the old language) cases of joint custody and split custody. Massachusetts is one of four states that in 1999 had no shared parenting formulas but now do, bringing the total of jurisdictions with shared parenting formulas from 30, in 1999, to 34 today, again according to Venohr.

Massachusetts, which adopted its first shared parenting formula, as well as its similar split custody formula, in the 2009 Guidelines, is one of the two states that adopted this new shared parenting formula as part of a simultaneous move to a shared income model for child support. Massachusetts thus provides a good illustration of both of these national trends, the one toward shared income as the favored child support guidelines model, and the other toward greater recognition and explicit treatment of shared parenting situations.

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In Part Three, I will discuss that giant leap of the 2009 Guidelines.

Massachusetts Child Support Guidelines and Shared Parenting: Introduction (Part One of Ten)

Recently I have been researching the Massachusetts Child Support Guidelines and their history since the first Massachusetts support guidelines of 1987, and have been comparing them with child support guidelines in other states. That is mainly because I have a journal article or two in the works and will be presenting a workshop "Shared Parenting and Child Support: Formulas, Incentives and Consequences" at the annual conference of the Association of Family and Conciliation Courts (AFCC) in Toronto, May 28-31. The theme of this year's conference is shared parenting, and my particular workshop, at the last session on the last day of the conference, is entitled "Shared Parenting and Child Support: Formulas, Incentives and Consequences." Here's the brochure's description:

The workshop will explore the range of child support models being used across the country, including income share models, percentage of income models, and Melson Formula models, and how they affect, and are affected by, decisions about shared parenting. The workshop will explore the relationship between child support guidelines and child custody determinations, and the often attendant challenges related to the inevitable incentives to increase or decrease either of the dependent variables of child support and child parenting time in order to influence the other.

Through my recent research, I have learned a lot about the Massachusetts Child Support Guidelines and how they compare to the guidelines of other states. I already knew quite a bit about the Massachusetts guidelines, of course, as I regularly use them in my practice as a Massachusetts family law attorney. But now I have a broader perspective, after having examined the guidelines and practices of other jurisdictions in some detail. Aided by that new perspective, I am beginning with this blog a ten-part series about the Massachusetts Child Support guidelines, their history, and particularly their recent evolution in response to the national trend in favor of shared income models for child support guidelines, and the national trend in development of specific provisions and policies to recognize and foster shared parenting. 

The latest Massachusetts Child Support Guidelines, effective August 1, 2013, continue a trend toward greater emphasis on shared income and shared parenting, begun with the last quadrennial child support guidelines revision of 2009, which was, in contrast to prior guidelines, the first “extensive overhaul” of the guidelines’ principles and formulas, following the mere “tinkering” of earlier guidelines revisions, as William and Chouteau Levine have put it. The early guidelines, from 1987 through 2005, only considered what was then called the “traditional” case, where there was a custodial parent and a noncustodial parent. 

Any shared parenting or split parenting situations, as they were not specifically addressed in the guidelines, were then commonly referred to as “outside the guidelines” and thus their treatment, for purposes of child support determinations, was left in the complete discretion of the court. The primary purpose of this ten-part series of blogs is to focus on our own recent history, particularly our evolving principles of shared income and shared parenting, and ultimately to critically examine the 2013 Guidelines as they represent the latest awkward step our Commonwealth has taken, after the first, giant leap of the 2009 Guidelines, to incorporate our evolving principles of shared income and shared parenting into our child support determinations.

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In Part Two, I will discuss the evolution of our guidelines in relation to national trends.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Statute Construed: No Credit For Time Served!

Today the Massachusetts Supreme Judicial Court just decided, in Holmes v. Holmes (see and view the oral arguments here) that temporary alimony, awarded before final judgment in a divorce action, does not have to be credited toward a calculation of the maximum term of general term alimony.   This means that if temporary alimony is awarded, as it often is, during the pendency of a divorce action, there does not have to be "credit for time served" (to use my own, admittedly imperfect analogy to criminal sentencing) in determining the ultimate award of general term alimony when the divorce is finalized.

I just read the decision, as it was released online today.  I had expected, like my colleague Jonathan Eaton, for the Court to rule differently, or for at least some of the justices to offer a dissenting opinion. I also expected better and more thoughtful analysis in the opinion, and am not at all sure I agree with the conclusions made.

The relevant alimony statutes, as amended by the 2011 alimony reform law that went into effect in 2012, do not make clear the relationship between temporary alimony and general term alimony awards.  The appellant in this case is certainly not the only one who assumed he would get credit for his ¨time served¨paying temporary alimony.   Like it or not, the Court at least answered the question pretty decisively, and now if folks don´t like it -  in the alimony reform movement, for example - they can gather forces to try to amend the statutory provisions yet again.

A big reason why I am not sure I like this decision is the arguably unfair results I am imagining in cases of short-term marriages where the maximum general term alimony would be much shorter in duration than in this case, say two or three years, for example, and so tacking on temporary alimony, during litigation of a year or two or even longer, could very substantially increase the effective length of alimony commitment relative to the length of the marriage. There are also the obvious problems that flow from the incentive this decision may give to alimony recipients to prolong divorce proceedings to increase the total alimony payout period.

For an excellent and much more detailed explanation of the decision, and what it means for family law litigants, see Justin Kelsey´s blog of today.

Meanwhile, at least for now, all you guys and gals who may have to pay alimony, you should know that until the statute is changed again, there's no guaranteed "credit for time served."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Child Support Guidelines Revised Again

The Massachusetts Trial Court has just announced the new Massachusetts Child Support Guidelines to be in effect for the next four years, beginning August 1 of this year.  Federal IV-D regulations require each state to have uniform child support guidelines that are presumptively correct, and 45 C.F.R. § 302.56 specifically requires each state to review its guidelines at least once every four years.  The new Massachusetts guidelines effective August 1, 2013, are here (prose) and a corresponding worksheet may be found here. The current (still in effect) guidelines worksheet remains at the Massachusetts Department of Revenue's website and should be replaced with the newly revised worksheet when the new guidelines go into effect on August 1.

Following is a summary of the key revisions, as provided in the trial court's press release:

Summary of Key Changes to the Existing Guidelines
The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes.  Some are minor, while others represent new or modified provisions.  The most significant include:

• Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.

• Availability of employment at the attributed income level must be considered in attribution of income cases.

• The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.

• Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.

• Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.

• A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.

• Guidance and clarification is given in the area of child support over the age of eighteen where appropriate.  While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.

• The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).

• Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Second Circuit Joins First in Striking DOMA

The Second Circuit Court of Appeals in New York just became the second of the intermediate-level federal appeals courts (circuit courts) to find the Defense of Marriage Act (DOMA) unconstitutional.   The first was our First Circuit Court of Appeals here in Boston back in May of this year.   The Second Circuit decision, which found the federal statute to be an unconstitutional violation of equal protection under heightened scrutiny (the "intermediate level scrutiny" for "quasi-suspect" classifications), is the most likely case on gay marriage to reach the US Supreme Court.  

Two other same-sex marriage cases likely to reach the Supreme Court are the First Circuit decision in Boston also striking down DOMA, and the Ninth Circuit decision overturning California's ban on gay marriage out there. 

For a short explanation of this Second Circuit case, with some discussion of related federal court decisions, see David Kemp's The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review.  Also see the New York Times article for an overview.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Goldman Sachs Is Too Big to Jail

Here's the latest news from yesterday that you didn't see on page one but should have: Goldman Sachs is too big to jail.   Well, on the other hand, there's nothing new about that.

Some related posts on Wall Street's control of the federal government:

Too Big to Jail
The President We Really Need
Nationalize the Banks Already
Washington Gives Huge Holiday Bonus to Bank of America
More on the Big Heist
A Shameful Suckup
Just Say No to the Bailout

Mommy Wars, Daddy Wars, and Having it All

From the time I heard Anne-Marie Slaughter's interview on NPR, back in late June, and found my Atlantic Magazine copy waiting for me in my office later the same day, there with the by now much-ballyhooed article, Why Women Still Can't Have It All, which she had just discussed with Terry Gross on air, I have been thinking quite a bit about the issues raised.

I thank her for her provocative contribution to the dialogue among the chattering classes on issues of gender roles, feminism, motherhood, and fatherhood.   I must say, however, that I reacted to her article much as I did to the seminal work of Betty Friedan upon my first encounter with it back in college: I appreciated its historical contribution, but its focus seemed too bourgeois for someone with my more radical sensibilities.

I have since enjoyed reading and learning from many of the varied reactions to that Atlantic Magazine article.  Two of my favorites, which I will pass on without comment, are The Daddy Wars, by Jessica Valenti, and Why Can't All Parents Have More, by KJ Dell'Antonia.

Too Big to Jail

Here's the amazon.com link to a great read I recently downloaded for my kindle: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, by Glenn Greenwald.  You can read a sample chapter there for free.  A former litigator and now journalist with salon.com, Glenn Greenwald tells the recent story of how many of the biggest criminals on Wall Street are too powerful to be prosecuted.  

The book itself is the latest chapter in the ongoing class warfare saga of these United States, or what I like to call generally Justice for the Rich (one of my topics/labels for blog posts here).  Glenn Greenwald's book is mainly about the recent failure of our government to prosecute the biggest criminals on Wall Street, or the problem of - to use a title of one of the actual chapters of this book -  "Too Big To Jail."  That is to say, while big financial institutions are deemed "too big to fail," the leading banksters in charge of them are similarly just too big and powerful to be jailed. 

I heard Glenn Greenwald on NPR today, but the Democracy Now! interview, "Zero Accountability": Glenn Greenwald on Obama's Refusal to Prosecute Wall Street Crimes, is more informative.  Glenn is one of at least two Greenwalds active in the political and journalistic arena and in it for the right reasons, to seek truth and justice.  The other is Robert Greenwald, whose documentaries I have often mentioned here on my blog.  I wonder if these two Greenwalds are related.   In any case, I have no personal connections to either and get nothing for this plug other than the satisfaction of passing on a good read.

The President We Really Need

Dr. Jill Stein, Green Party Presidential Candidate, from Massachusetts, is the only Presidential candidate who is speaking the truth about Obamneycare and is talking about a real solution to the health care crisis: a single-payer system: Romneycare and Obamacare are class warfare and failures, says Stein; calls for "real solution" of Medicare for All.


She is the President we really need.  I am, however, about 100 percent sure we will instead get the one named Obamney.

Last election, my vote, and my campaign contribution, went to Obama.  This year, my contribution has already gone to Dr. Jill Stein and my vote will follow.   This year, I cannot bring myself to vote for the Demopublican over the Republicrat.   Each principal party candidate has now proven by his actions - despite what he may have said, or may now say, to get elected - that he is steadfastly in support of unnecessary and immoral wars, that he is shamelessly in favor of lavish corporate welfare and bailouts to the rich elite who regularly and legally steal from the rest of us, and that he will obsequiously kowtow to Wall Street and big corporations and continuously pretend to serve the public interest without actually doing so.

In this year, as in all national political election years, I am especially mindful of the eternal truth in George Orwell's statement that political language is "designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind."

Obamneycare Upheld by SCOTUS Today

Obamneycare was upheld by the US Supreme Court today. While many of my fellow "liberals" applaud this result, I am mostly just sorry that this Heritage Foundation idea, first brought to fruition here in Massachusetts by Romney to protect the usual suspects, will continue to be viewed, due to Obama's unfortunate support of this, as a Democratic idea.

Thanks especially to the horrible mandate - already proven to be a disastrous failure here in Massachusetts - middle income people will be screwed by this terrible regressive law which will protect the interests of the bloated medical and pharmaceutical industries and the medical insurance racket at the expense of 99 percent of us.

Yes, some will benefit from the few good provisions such as that which prohibits denials for pre-existing conditions. But as Howard Dean has rightly said, it would have been better not to pass this law at all, as overall it is worse than the horrible system we had before it.


Meanwhile, true progressives, and conscientious physicians, await the only real solution: a single-payer system.  Yet the cynic in me thinks that more likely we will see Obamneycare morph instead into an even more regressive disaster for the vast majority of us, both poor and middle income.  I hope I am wrong.

First Circuit Finds DOMA Unconstitutional

The First Circuit Court of Appeals in Boston found DOMA unconstitutional today.  But enforcement of this federal court of appeals ruling - which would extend the federal economic benefits denied by DOMA to gay couples - will have to await a decision by the US Supreme Court.   The First Circuit's decision is here.  For a good summary, see Ruthann Robson's blog.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Stevie B, Owing $420K in Child Support, Arrested At Springfield Concert

Stevie B, singer of "Because I Love You" (The Postman Song) and other hits from the 80s and 90s, was arrested in Springfield this past Friday night after his concert at the MassMutual Center and hauled off to jail for an apparent child support debt, to a woman in Agawam, of a whopping $420,000.

According to the Springfield Republican, when Stevie B was apprehended as he was leaving the arena after his show, the arresting officer found him "cooperative but surprised by the arrest" and concerned "that he might miss a weekend gig in Providence, RI."

Stevie B is apparently now regularly residing and working in Vegas.  Did he forget about the child support he skipped out on here in Massachusetts? Did he think he was in the clear by now?

Hmmm, reminds me of another music celebrity, Bobby Brown.  He too was arrested several years back after returning to his native Massachusetts (from Georgia, in his case) to see his daughter cheerleading, and was hauled off to jail for huge back child support.  One of the lessons I derived from this story, as I blogged back then, was:  

If you happen to become a celebrity when you "grow up" and if you happen to get way behind on your child support, then do not go to visit your daughter as she is cheerleading in public.

Perhaps I now should add to that:

...and do not perform a public concert in the very state, and in the nearest city, in which the ex to whom you owe massive child support happens to live.

On this past Monday, October 3, TMZ reported that Stevie B was indeed arraigned on Monday, but still remained in custody until able to pay at least $10,000 of what he owes to get out of jail.  The Associated Press more recently has reported that he got out of jail on Tuesday by paying $11,000, but Stevie B disputes the amount of the debt.    More details, from the the AP story:

On Monday, he agreed to a schedule of payments for approximately $420,000 in child support, including a lump sum payment of $10,000 and weekly payments of $921. His lawyer said he paid an additional $1,000 with the required lump sum and has offered to pay an extra $500 per week.

An extra $500 a week toward arrears would be just a tad less than what would be necessary just to pay the 6 percent annual interest that would be assessed on his $400K+ debt (to say nothing of the other 6 percent ordinarily assessed in penalties). I see more lump sum payments and possibly seizure of assets in Stevie B's future.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Census Bureau Reports Marriage & Divorce Statistics

The U.S. Census Bureau recently released its report "Marital Events of Americans: 2009," which is the bureau's first such report after including questions about marital events as part of its American Community Survey (ACS), beginning in 2008. The report confirms previous indications from other sources that divorce rates, and marriage rates, are higher in the South than in the Northeast, among other things.  See the bureau's report here or read the summary from Reuters.



From the Reuters news article (August 25, 2011):

....Statistics from "Marital Events of Americans: 2009," show that in the South, per 1,000 men or women, divorce rates were 10.2 and 11.1 percent.

By contrast, Northeastern men and women had divorce rates at 7.2 and 7.5 percent.The national divorce rate was almost 10 percent, at 9.2 for men and 9.7 for women.

The report is the first to examine and detail marriage, divorce and widowhood among Americans ages 15 and older, using data from the 2009 American Community Survey (ACS).

"Divorce rates tend to be higher in the South because marriage rates are also higher in the South," Diana Elliott, a family demographer at the Census Bureau, stated in the report's release.

"In contrast, in the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces."

Fourteen states had above-average divorce rates for men and women. Southern states such as Alabama, Arkansas, Georgia, Kentucky, Mississippi, Oklahoma, Tennessee and Texas had divorce rates above the United States average for both genders.

For the 10 or so states that had below-average divorce rates for each gender, about half were in the Northeast.

States like Massachusetts, Pennsylvania, New Jersey and New York saw fewer divorces than average for men and women.

Divorces did impact the economic well-being of families.

Three quarters of children living with a parent who divorced in 2009 lived in a household headed by their mother.

Of women who divorced in the year studied, 23 percent received public assistance, against 15 percent of recently divorced men who received such assistance.

But such women also reported less household income than recently divorced men, with 27 percent having less than $25,000 in annual household income compared to 17 percent of recently divorced males.

They also were more likely to be in poverty; 22 percent of recently divorced women compared to 11 percent of such men.

Almost 30 percent of children living with a parent who recently divorced lived in a household below the poverty level, compared with 19 percent for other children.

Historically, data on U.S. marriages and divorces were collected from marriage and divorce certificates filed at the state level. According to the report, beginning in 2008, questions about marital events were added to the ACS to fill a void in the data collected in the United States.

Previous Post on Related Issues:

 BASEBALL BRINGS DOWN THE DIVORCE RATE?

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Destination Divorce

We have long had destination weddings.  Why not destination divorce?  Zagat has published a guide to the best restaurants for dumping your mate, as I have reported here two years ago.  There are already restaurants you can visit to dine and dump your spouse, so why can't there be destination resorts or hotels where you can go to make that dumping official?

It's not so easy just to head to the beach, or somewhere exotic, to get an actual legal divorce, you say? Well, not only are some enterprising travel businesses trying to sell the idea of divorce vacations, in Mexico and elsewhere, but there is now even, in the Netherlands, what is called the Divorce Hotel (Hotelscheiden). If you are Dutch, you can actually show up at a five-star hotel for about three days with your spouse and mediate your divorce settlement, spending potentially far less time and money on the trip and the luxurious hotel accommodations than you might otherwise have spent on legal fees back home.

Or so they say.  So far, the new idea has only had a small number of takers, and it is of course only available to Dutch citizens.  Take a look at the Divorce Hotel's website and video.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Alimony Reform Bill Signed Into Law

It's official!  Around 4 PM yesterday, Governor Deval Patrick signed into law the alimony reform bill.  (See my discussion of this in my last post where I link to previous blogs on alimony reform).  The new law goes into effect March 1, 2012.  Go ahead and peruse the complete text of the new law, or check out the well-written summary of the new law provided by Francine Gardikas of Burns & Levinson at their law firm's family law blog, Massachusetts Divorce Law Monitor.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.