Divorce Mediation Blog

2013 Child Support Guidelines Preview Part 5: Slicing The Parenting Plan?

Wednesday, August 28, 2013

For as long as we can remember, child-support-payors-in-waiting, generally fathers, have pressed for greater time with their children at the risk of being accused of posturing for lower payment obligations. Primary caretakers, often mothers, face the opposite suspicion. Sometimes the charges are on-target, often not.

Lawyers, courts and divorce mediators alike have long struggled to convince people to think about parenting first, then consider the support obligations that should flow from a well-reasoned parenting plan. The initial Massachusetts Child Support Guidelines (CSG) supported the parenting-first approach, by not addressing – as some other states’ CSG had – child support as calibrated by hours of care.

The 2009 CSG premiered two steps in the opposite direction, yet both of them had logic, and perhaps addressed a need. First, CSG established that the presumption of minimum child support payments assumes that the recipient parent provides about 2/3 of parenting responsibilities, a proxy for “primary care”. Second, for cases of approximately equal time parental care, the 2009 CSG established another minimum child support presumption: by running the support formula twice, once as if each parent were the primary caretaker, subtracting the larger form the smaller sum and having the higher income party pay support to the other.

The two-thirds responsibility assumption was a helpful if imperfect measure of primary care. It provided some guidance, if not clarity. What does 2/3 of responsibility mean? Is it 2/3 of overnight periods? Two-thirds of hours of the 24-hour clock? Or, does it mean 2/3 of waking care time? The shared custody comparison had a simple appeal to it, and it gained great acceptance. Did courts and negotiators by and large accept this approach for cases with less than equal but substantially shared parenting time, such as plans in which one parent cared for children 8 out of 14 overnight periods? For the most part, yes, with some adjustments.

Now come the 2013 CSG. This year’s model perpetuates the 2/3 standard, but without any clarification: a missed opportunity; and one that is compounded as we describe below. It also keeps the 2009 approximately equal parenting model. But beyond that, 2013 CSG expands conscious parenting time calibration in two directions: a new provision for parenting plans with a parent assuming less than 1/3 of parenting responsibilities, and another for child support payors who assume more than a third but less than half of parenting responsibilities.

The first scenario (call it primary care plus) simply says that “the Court may consider an upward adjustment” of the minimum presumptive child support amount. Logical enough: if a payor is not providing a certain minimum assumed responsibility level and corresponding costs, a child support adjustment may be appropriate. But, how shall this be measured? And, without knowing what 2/3 care really means, how shall deviation from it be measured? The failure to clarify what 2/3 parenting means makes this discretionary adjustment murkier.

The second scenario (call it greater but not equal sharing) takes the opposite approach: it is way specific. This, time, CSG begins with the equal parenting approach of calculating child support twice, once as if each parent were the primary caretaker. Then, compare those two, subtract the smaller from the larger and call that the “shared custody” amount. Take the result of the primary care support calculation for the parent who actually will have more than half but less than 2/3 of parenting responsibilities, and average it with the shared parenting model. Confused?

Does it have an economic rationale? And, perhaps more importantly, have we now descended to the place that earlier CSG iterations avoided, by fueling parenting plan negotiations or litigations as shadow battles over which CSG category shall apply?

Is it primary care?

Primary care plus?

Greater but not equal shared parenting?

Equal parenting?

As Massachusetts divorce mediators, we worry that our state’s previously virtuous attempt at keeping clear the divide between child support and substantive co-parenting is eroded to the point of those other states that tie child support to parenting hours, but without their precision. Will this fuel greater suspicion about the desire for more time with kids, or a child-centered need for limits? Will it encourage bad faith parenting negotiations? We need to help parents succeed in spite of what some may perceive as perverse incentives in 2013 CSG.


Dependency Exemptions After Divorce: A Good Reminder From the Appeals Court

Wednesday, June 12, 2013

In a recent case, the Massachusetts Appeals Court revisited the federal tax code’s provisions on the allocation of child dependency exemptions between divorced parents. In upholding a probate judge’s decision to award a child’s exemption to the non-custodial but child support-paying father, over the mother’s objection, the appellate court reviewed current tax regulations and concluded that state courts continue to have the power to direct the exemptions as deemed appropriate.

But, but that since the court’s judgment alone is insufficient to satisfy the IRS’ requirement that the custodial parent “release” the exemption, the appellate opinion clarified that the trial court must also specifically order the custodial parent to sign [and presumably deliver] an IRS Form 8332 release to make the assignment effective. The failure to sign or deliver the form, then, becomes the state court enforcement (contempt) trigger.

At first glance, we wondered: “why did they bother?” Most divorce lawyers are familiar with Form 8332 and its effect. Then, we asked why she bothered. The mother appeared to have no financial stake in the outcome of her own appeal (for which she presumably paid legal fees), since her income was too low to have the exemption save her any tax dollars, even if she did wrest the exemption back from the father. Perhaps, the associated federal tax credits made the exercise worthwhile, or maybe her motivations were non-financial.

Then, on second thought, we realized that the case is a useful reminder to all family law drafters. This includes Massachusetts divorce mediators who write separation agreements, lawyers who draft proposed judgments for judges and suggested awards for divorce arbitrators, and for arbitrators themselves, that best practice dictates that dependency exemption provisions make reference to Form 8332 and place an affirmative obligation on the releasing party to sign and deliver. Otherwise, a client who does have a discernible stake in the having the dependency exemption just may not get it.


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