Frequently Asked Questions: Child Support

How is the amount of child support set?

Child support in Massachusetts is based upon a formula called the Child Support Guidelines. The Child Support Guidelines take into account the number of children, the ages of the children and the income of the parties. The Child Support Guidelines apply whether or not the parents were married.

There is a form called Child Support Guideline Worksheet that is used to determine the appropriate amount of child support. You are required to complete this worksheet in all cases involving child support.

What if we have an agreement to pay less (or more) than the guidelines?

A judge may approve an agreement which is “fair and reasonable and makes adequate provision for the support of the child.” If you have reached an agreement which provides for less (or more) child support than the guideline, you should be prepared to explain to the judge why you believe the agreement is fair and why you agreed to less (or more) than the guideline amount.

If we do not have an agreement will the court order less than guidelines?

There is a “presumption” that the guidelines apply to all child support cases. A presumption is a legal term which means that the guidelines apply unless the judge determines that the guidelines are inappropriate based upon special circumstances you can explain. The judge has to consider the best interest of the child in setting a child support order.

The full guidelines amount might not be ordered, if, for example, it costs you a great deal to travel to visit with your child, or if you are paying other expenses for your child.

What if I am paying another child support order?

The Child Support Guidelines take into account a court order for child support for other children. If you are paying child support for another child, subtract the amount paid from your gross weekly income on the Child Support Guidelines Worksheet (line 1(a)).

Note: you may deduct the amount only if it is an order of a court and if you are actually paying the order.

My child is 10 years old, will my child support automatically increase when the child turns 13?

No. A child support order may be increased if there is a difference of 20% between the order in effect and a new order which would be calculated under the guidelines. For example, if in 1998 the court ordered $100.00 per week in child support and in 2001 the guidelines would be $120.00 per week, you will be able to show a 20% increase. You ask for an increase by filing (and proceeding with) a Complaint for Modification.

What happens if my child lives part time with the other parent?

The answer depends on the circumstances. The child support guidelines are based on traditional custody and visitation arrangements, which include weekend, holiday, vacation and other frequent visits. If the judge approves a “shared physical custody” arrangement where the child spends almost as much time in one home as in the other home, the guidelines do not apply. However, in this situation, the judge may still order one parent to pay child support to the other.

What happens if I work overtime or have a second job? Is it considered in determining child support?

The answer depends on the circumstances. A judge may include income from overtime or income form a second job in determining child support under the guidelines. It is likely that income from overtime or a second job will be included if it was a regular source of income while the family was together. You should be prepared to explain how often you receive overtime income. You should bring W-2 forms and/or a letter from your employer, which shows the frequency and amount of income you receive from working overtime. Income from a second job or from overtime must be listed on your financial statement. You may present two Child Support Guideline Worksheets to the court, one showing child support if overtime is included in your income and one showing child support if overtime is not included in your income.

What happens if I am unemployed at the time of the child support hearing?

Child support may be based upon unemployment benefits, Workers’ Compensation benefits and other sources of income. The income from these benefits is listed on your financial statement. In some circumstances, the judge may order the unemployed party to apply for a certain number of jobs per week and to report her or his job search efforts to the Probation Office.

What if I lost my job after the hearing?

If you lost your job or income, you MUST go back to court to ask the judge to change the order based upon the change in your circumstances. If the support order is a temporary order, you can file a motion asking to reduce support. If the support order is part of a judgment, you need to file (and proceed with) a Complaint for Modification in order to ask to have your support order changed.

It is important that you file your Complaint for Modification or your motion asking to reduce support as soon as your circumstances change. The reason for this is that a judge can only change an order back to the date you gave legal notice to the other party of your request for the change. If you file a Complaint for Modification, legal notice is when the sheriff serves (which mean delivers) the summons on the other party. If you file a motion, the date of legal notice is the date you give the motion in hand to the other party or the date you mail a copy of the motion to the other party.

What happens if I become disabled?

If you become disabled you MUST ask the judge to change the child support order due to your change in circumstances. This is done by either a motion asking for support to be reduced or by a Complaint for Modification.

If you are receiving Social Security Disability Income (SSDI) and your child is receiving a child’s benefit, you must still follow the procedure described above to change the court order.

What happens if I do not pay my child support order?

Child support orders should be taken seriously and you should seek legal advice if you have any problems obeying a court order. If you do not pay a support order, you may be held in contempt of court for violating the support order and punished by the judge. The punishment for contempt may include a jail sentence, payment of interest on the child support arrears, payment of attorney’s fees to the other party and other penalties.

How long does a child support order last?

Generally a child support order remains in effect until the child is 18 years old. Often parents will agree to continue child support through college or until the child is independent. You should review your Separation Agreement or court order for child support to see if it contains any provision about when a child support order ends.

If your child support order does not deal with the termination of child support, this generally means child support terminates at age 18. But in many situations where child support ends at age 18, the child may still be in high school and in need of support from both parents. In order to continue child support past age 18, you need to file a Complaint for Modification. Keep in mind that if your child support order ends at 18, and if you want it to continue past age 18, you should file the Complaint for Modification before the child’s 18th birthday to avoid any disruption in child support.

If you are unable to reach an agreement for support for a child who is over age 18, the judge will review the circumstances of a case to determine if continued child support is appropriate.

A judge may order support for a child who is between the ages of 18 and 21 if the child is dependent on his or her parents for support. If you are the parent seeking child support, you need to present to the judge the ways in which the child is dependent upon you for support. For example, if your child turned 18 but has not finished high school, a judge will generally find that the child is dependent upon you and will order support to continue.

The judge may also order child support for a child between the ages of 21 and 23 if the child is dependent upon a parent for support and the child is enrolled in an educational program. For example, if your child is 21 years old and is in college, a court may order child support. You need to give the court documents showing that the child is enrolled in school.

A court cannot order support for a child over age 23 even if the child is still in school.

How do i arrange to have child support taken out of my paycheck?

When child support is taken out of your paycheck, it is called a wage assignment. Wage assignments are used in almost all cases.

All wage assignments are now paid through the Massachusetts Department of Revenue Child Support Enforcement Division (DOR). This means that your employer will take the money out of your paycheck and it will be sent to DOR. DOR will then send a check to the other parent.

You will be given a form to fill out which provides information to DOR in order to process your child support. You will also be given a wage assignment form to complete when you come to court for your hearing.

I used to receive child support by wage assignment directly from the other parent’s employer, does it now have to go through DOR?

Yes, the law recently changed. All wage assignments must now go through DOR. This means if you come to court to make any changes to your child support, (such as the amount of the order) child support will not need to be paid through DOR.

Can the other parent and I agree to not have a wage assignment?

Yes. If both parties agree is writing, you may pay the other party directly, rather than having it taken out of your pay. This method of paying is called a “suspended wage assignment.”

I now have a new family. Is this a reason to have my child support order for my first family lowered?

No. The expenses of a second family cannot be used as a reason for a judge to reduce the child support order for the first family.

However, if the other parent in the first family seeks to increase the child support order, a judge will consider the expenses of a second family in deciding whether or not an increase is appropriate.

Mark Berson Attorney at Law