More than any other term of your divorce agreement, the amount of child support over time, requires modification. This is especially true in the case of very young children. As children grow older, the amount of support will generally increase. Inflation alone will require an increase in child support. As a result, you may wish to consider a regular increase in child support consistent with the rate of inflation or other economic indicators; for example, the consumer price index. Or, you may consider a periodic review of child support in consideration of the actual expenses of the children, your income, and your former spouse's income. Whatever the case, you may wish to recalculate the guidelines on a periodic basis in order to keep pace. Generally speaking, Massachusetts courts have determined what child support "guidelines" are. When it comes to modification, the drama of your matter is much less contentious than at the beginning; basically, it's formula driven.

Posted by Irwin M. Pollack, Esq. at 11:38 AM | Permalink | TrackBacks (0) | Comments (0)

When a client comes into our offices asking me about whether he or she should file for sole custody, it always makes me skeptical right from the start. Is this parent truly acting in the best interest of the child or are they acting in their own best interest by trying to get more child support?

Other attorneys may advise their clients to do this, but it often only makes the situation worse. Moreover, getting your children from Friday night to Saturday evening isn't how to define a weekend. A weekend should be Friday after school until Monday morning before school (I'm a proponent of using school or other neutral spots as pick-up and drop-off points as it eliminates the issue of contact between contentious parties). You really need enough days to allow a smooth transition between homes and have the children get comfortable and spend regular time. Many of the judges we appear before are finally recognizing that blocks of time are needed to parent a child. Hours of time are not enough. So make sure the judge gives you enough time with your children and forget about the label of sole custody versus shared parenting time.

Posted by Irwin M. Pollack, Esq. at 12:12 PM | Permalink | TrackBacks (0) | Comments (0)

Every state has laws (statutes) relating to child custody. In Massachusetts, child support "guidelines" have been formulated to be used by Probate and Family Court judges, whether the parents of the child are married or unmarried, in setting any temporary or permanent order for current child support, in deciding whether to approve agreements for such support and in deciding cases relating to modification of any order.

Quite often, spouses refer to what they "have to pay" to their former spouse each month. It's important to recognize that the guidelines were set based on several principles including, but not limited to, the following:

1. Minimizing the economic impact on the child of family breakup;
2. Encouraging joint parental responsibility for child support in proportion to, or as a percentage of income;
3. Providing the standard of living the child would have enjoyed had the family been intact;
4. Meeting the child's survival needs
5. Taking into account the non-monetary contributions of both parents; and
6. Minimizing problems of proof for the parties and of administration for the courts.

The guidelines also recognize that in order to maintain a home and reasonable lifestyle for minor children, the primary caretaker will choose to work. In this case, a disregard of income of up to $20,000 is considered for normal costs of daycare.

A favorite issue of mine relating to child support in the section entitled "Attribution of Income." Here, the rule reads as follows:

If the court makes a determination that a party is earning substantially less than he or she could through reasonable effort, the court may consider potential earning capacity rather than actual earnings. In making this determination, the court shall take into consideration the education, training, and past employment history of the party. These standards are intended to be applied where a finding has been made that the party is capable of working and is underemployed, working part-time or is working a job, trade, or profession other than that for which he or she has been trained.

This determination, however, is not intended to apply to a custodial parent with children who are under the age of six living in the home.

Posted by Irwin M. Pollack, Esq. at 1:25 PM | Permalink | TrackBacks (0) | Comments (0)