Can You Get Retroactive Modification of a Support Order?

                A question that is often asked of our Law Office is whether a party can seek a credit for child support he or she had been ordered to pay, but for a time period during which they had assumed primary custody and financial support of the child or children for whom the support order was established.  The general rule is found in Massachusetts General Laws, chapter 119A, section 13(a), which states that a retroactive child support modification of this kind cannot be granted by a Judge, except for any period during which there is a pending complaint for modification. In other words, if one assumes custody and financial responsibility of a child, it is his or her burden to file a Complaint for Modification and request a change to the child support order. Otherwise, a court cannot grant a retroactive credit for any support paid prior to the date of filing of the Complaint. 

              On November 22, 2016, the Appeals Court held that there is a very specific and limited exception to this rule. In Rosen v. Rosen, the Court held that a judge can grant and apply a credit to offset a child support arrearage (amount owed) during a period of time when there was no pending complaint for modification if the following circumstances are met:

“[T]he support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child’s best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient.”

                While it is always best to seek relief directly from the Court via a Complaint for Modification if there are any changes to the custody or support agreement, the holding in Rosen v. Rosen provides much needed relief for those parents who assume responsibility for their child during extraordinary circumstances. It also encourages parties to put the best interests of their children first, without fear that they will be found in contempt for failure to continue paying child support to a parent who has voluntarily transferred custody of a child.

              If you have questions regarding your custody or support order, contact our Law Office today to schedule a consultation. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Can You Waive Child Support?

We are often asked if the parties to a divorce or child custody matter can agree to waive child support for their children. The answer to this is not as black and white as one may think, and it’s important to understand Massachusetts law regarding child support prior to making a final decision.

Child support is governed by M.G.L.c. 208, sec. 28 and the Massachusetts Child Support Guidelines (found here: http://www.mass.gov/courts/selfhelp/family/child-support-guidelines.html). The guidelines are comprehensive and easy to read, providing over 20 different sources of income that would be included in one’s income for calculating child support. In short, any form of income is includable as child support, even if it is not reported to the IRS, with the exception of income that is need-based. Once you have determined the income attributable to each party, you run the guidelines to figure out the child support order.

Often, when parents have shared physical custody and earn comparable incomes, the resulting child support order will be minimal, and the parties may elect to waive support altogether, while including language in their agreement that they will share the children's extracurricular and uninsured medical expenses equally, as well as provide for everything the children need when the child is with him/her. Other times, the child support order is more substantial (either because one party has primary physical custody or because there is a disparity in income), but the parties agree to offset the child support by paying for the children’s other expenses disproportionately. In addition, the parents may agree to share certain expenses that would not automatically be ordered by the court (like summer camp, after-school care, hair cuts and clothing). Another popular option is to characterize the payment of support as alimony instead of child support, due to the tax advantages that paying alimony can have. This is especially beneficial when children are older and alimony is likely to be ordered in the future, as it saves the parties from having to go back to court in a few years to recalculate support. 

In the above scenarios, child support appears to be waived, but there are provisions in place for the children’s maintenance. These are common scenarios that would likely be approved by a court, as they ensure that the children’s needs are met, and that the children enjoy a similar lifestyle in both parent’s homes.

What will not be approved is an agreement that waives child support without making other provisions for the children’s maintenance. This is because public policy dictates that dependent children be maintained as completely as possible from the resources of their parents. If one party isn’t paying support and is not otherwise providing additional resources for the child, then that party is not adequately supporting his or her child.

            

            Further, parents can never permanently agree on a child support order (or agree to permanently waive child support).  A parent can always go back to court and try to modify the child support order, or establish a new one if child support was previously waived. This is because a parent may not bargain away the rights of their children to support from either one of them. See Okoli v. Okoli (No. 1), 81 Mass.App.Ct. 371 (2012). As such, a modification of child support can be obtained even if the parties have put into their agreement that they are waiving child support.

                

             If you need to establish or review a child support order, contact Attorney Leila J. Wons to schedule a consultation at her Westborough office and review your child support needs and rights. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Should I Ask the Department of Revenue for Help with my Child Support Matter?

Often, parents need help in establishing or enforcing a child support order, which may include establishing paternity. When this is the only assistance that they need, it may be beneficial to contact the Massachusetts Department of Revenue, who have Attorneys available to assist parents with these matters. As noted on their website, DOR can:

• Determine what services are available and best suited to establish paternity and establish, enforce and modify a support order.
• Collect support payments.
• Send child support to every parent or guardian that has a child support order.
• Obtain or enforce an order for medical insurance coverage.
• Upon request of either parent, review support orders for consistency with child support guidelines and determine if it might be appropriate to ask the court to modify the amount of the child support order and assist in processing requests for modification of the order.
• Select and implement appropriate enforcement remedies, such as bank levies, tax refund intercepts and credit reporting, to collect overdue support if the case meets our criteria for the enforcement action.
• Locate the other parent in order to establish paternity or enforce/modify a child support order.
• Establish paternity if a child was born out of wedlock.
• Arrange for paternity testing for both parents and the child.

In addition to the above, DOR has a program called the Payment Intercept Program (PIP), which identifies pending insurance claim payments owed to parents who have child support debts and intercepts them. As such, it sends the money to the parent who is owed support, and decreases the chances of that family needing public assistance.


To obtain DOR services, complete their application here: DOR Application. You can also find more information on DOR and their programs at this link: Massachusetts Department of Revenue Child Support Enforcement.


REMEMBER: DOR cannot help you with issues relating to parenting time and custody, and they do not represent the parent who is being asked to pay child support. If you can, it's best to retain an experienced Family Law Attorney to assist you in those matters.

(c)2015 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Can You Modify a Child Support Order From Another State?

It is very common for parents to move to another state some time after a court issues a child support order.  The question then arises as to whether or not that parent's new home state can modify the existing child support order. On February 23, 2015, the Supreme Judicial Court issued its decision on Cohen v. Cohen,  which explains Massachusetts courts' jurisdiction over existing child support orders and whether or not those orders can be modified here.

Under the Uniform Interstate Family Support Act (UIFSA), Massachusetts has the power to enforce child support orders from other states. However, it cannot modify an order if the state issuing the child support order still has continuing and exclusive jurisdiction. To know whether or not the issuing state has continuing and exclusive jurisdiction, you must ask 2 questions:  First, does either parent or the child still reside in the issuing state? Second, if at least one of them still lives in the issuing state, have the parties provided written consent for Massachusetts to take over jurisdiction?

In Cohen, the parties had a child support order out of California. While the Father eventually moved to Massachusetts, the Mother and child remained in California. As such, California retained exclusive and continuing jurisdiction over the child support order. The SJC found that, although Massachusetts had the power to enforce the California child support order (by having the Massachusetts Department of Revenue garnish the Father's wages and by ordering attorney's fees for the Husband's failure to comply with the order) Massachusetts did not have the power to modify the order. For example, a Probate and Family Court in Massachusetts had changed the original order to include payment for uninsured medical expenses and college tuition, which was wrong.

If you have questions about an existing child support order, please contact Attorney Leila Wons to discuss your options and review your matter.


(c)2015 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

SSDI and Child Support

On August 1, 2013, the Massachusetts Child Support Guidelines were amended, once again. Amongst the changes made was the inclusion of specific language regarding the treatment of Social Security or SSDI benefits, as well as any such benefits received by a child for whom support is being calculated. On July 2, 2014, the Appeals Court affirmed the judgment of Schmidt v. McCulloch-Schmidt, which dealt with the treatment of such benefits.

In a nutshell, here's how the courts will treat Social Security benefits, SSDI benefits or dependency benefits received for a child:

1. Social Security and SSDI benefits received by a parent will be considered as part of that parent's income. These benefits are different from means-tested public assistance benefits like SSI or SNAP, which are NOT included in the parent's income. In other words, if a parent receives benefits due to financial need, those benefits are excluded from the child support calculations. If a parent receives benefits due to age or disability, those benefits ARE included in the support calculations.

2. In many instances, a child will receive a dependency benefit due to his/her parent's own benefits. For example, a parent receiving SSDI (Social Security Disability Income) may also qualify to have the custodial parent receive SSDI Dependency Benefits on behalf of their child. In this case, any dependency benefits received are included in that custodial parent's gross income for purposes of calculating child support. 

3. If the resulting child support order is less than the SSDI Dependency Benefits, then no further child support is ordered, and the custodial parent gets to keep the entire dependency benefit, regardless of whether or not it was through the custodial parent that the child became eligible for the dependency benefits.

4. If the resulting child support order is greater than the dependency benefit and the custodial parent is the one through whom the benefit was derived, then the non-custodial parent has to pay the entire child support figure.

5. If the resulting child support order is greater than the dependency benefit and the non-custodial parent is the one from whom the benefit was derived, then the non-custodial parent will pay the difference between the child support order and the dependency benefit.

Here are some examples, in order to make things a little less confusing:

Father receives SSDI. Due to his father's receipt of SSDI,  the child also qualifies to receive Dependency Benefits, which are granted to the custodial parent.  Mother receives regular income from a W-2 job. Mother is the custodial parent. 

• Mother's income includes the income she receives from her employment, as well as the SSDI Dependency Benefits received for their son.
• Father's income includes his SSDI benefits.
• The amount of dependency benefits is $80.00 per week.
• The resulting child support order is $75.00 per week from the Father to the Mother.
• Since the child support order is less than the amount of the benefits received by Mother as a result of Father's own receipt of SSDI benefits, Father does not have to pay any support.

If we use the same scenario as above but make the child support order $85.00 per week, then the Father would be responsible for paying the difference between the child support and the benefits, which would be $5.00 per week. Since the Father is the one from whom the dependency benefits are derived, he receives a dollar-to-dollar credit for them against his child support order.

If we use the first scenario but make it so that the Father is the custodial parent (and thus also receiving the dependency benefits), then the Mother would not pay the Father any child support because the support order is less than the dependency benefit.

If we use this same scenario but make the child support order $85.00 per week, then the Mother would owe the Father then entire $85.00. There would be no off-set for the dependency benefits because the benefits were not derived from the Mother, who is the payor.

For questions about the calculation of child support or any other domestic relations matters, please contact Attorney Leila J. Wons to schedule a consultation.

(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

When to use the Department of Revenue

When deciding on a child support amount, the parties must also determine whether or not they want to use the Department of Revenue (DOR) for collecting and distributing payments. While going through DOR may not work for everyone, I usually recommend it. DOR keeps track of every payment received, calculates interest, and can take necessary enforcement steps if the payor is not current on his/her payments. For example, DOR can have the payor's driver's license suspended, can intercept tax returns, can garnish wages, or can even have a passport revoked.

Having DOR involved also makes it easy to present to a judge a detailed report of every payment made, in the event that the parties return to court on a Complaint for Contempt or Modification. This is much easier than combing through bank statements and deposit slips to figure out the arrears amount. 

If you decide not to go through DOR initially, you can always request DOR's services at a later date, unless a court order specifically prevents you from doing so. As there are DOR offices in many courthouses throughout Massachusetts, it is fast and easy to obtain the necessary paperwork and submit it.

Go to the Department of Revenue-Child Support Enforcement website to learn more.

(c)2014 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Alternative Reproduction and Parental Rights

On March 6, 2012, the Supreme Judicial Court held that a father who consents to in vitro fertilization is the legal father of the children born of this artificial insemination, even if the parties agreed that he would take no responsibility for the needs of said children (Chukwudera B. Okoli vs. Blessing N. Okoli).

This holding comes on the tail of recent case law, Della Corte v. Ramirez, which held that children born of a same-sex couple become "children of the marriage" and the parties (whether biological parents or not) are legally responsible for them. In other words, both cases hold that if children are born in a marriage through alternative reproduction methods, but the parties consent to same, then both parties become legally responsible for the children. Even if the non-biological parent never adopts the children, or if the parties reach an agreement amongst themselves that one party will bear no financial or legal responsibility for the children, both parents are still considered the children's legal parents. The intent of the parties to become parents is irrelevant, just like it would be if two people engaged in sexual intercourse that resulted in a pregnancy.

IN SUM:
If you're married, don't consent to conception unless you are ready to be held legally responsible for the resulting offspring.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

In same-sex marriages, what rights do non-biological parents have?

On February 2, 2012, the Massachusetts Appeals Court upheld a lower court's judgment that a non-biological mother of a child born during a marriage who never co-adopted the child is nevertheless considered the child's other legal parent. In other words, the court found that it was irrelevant whether an individual failed to adopt their spouse's child or even partake in the conception (by assisting with the insemination, selecting the donor, etc.).  If the child was born after the parties were married, the child became a "child born of the marriage" and entitled to the same rights as a child born of a married woman. As such, the child is entitled to support from both parents, as well as appropriate custody and parenting time with the non-biological parent.

 Prior to this landmark decision, the law was very muddy in regards to the rights of a child born of a parent in a same-sex relationship. It was unclear whether that child, if not adopted by the non-biological parent, was still considered that parent's legal child. This problem forced the courts to apply the "de facto parent" test to determine if the non-biological parent had shared in more than half of the care-giving responsibilities for the child, therefore creating a parent-child relationship that would enable that parent to custody and visitation, and also establish a child support obligation.

While this new case (Della Corte v. Ramirez) confers necessary rights on non-biological parents and the children born of their marriage, it is still imperative that same-sex couples complete co-parent/second parent adoptions. Doing so ensures that non-biological parents retain their important parental rights when traveling outside of the Commonwealth and into states that do not recognize same-sex marriage, or that have yet to establish case law similar to Della Corte v. Ramirez. For more information about the rights of same-sex parents, please contact Attorney Leila J. Wons.

(c) 2014 by Law Office of Leila J. Wons. The information contained herein is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."