Previously, we blogged about the conflict between the Massachusetts alimony law and our Child Support Guidelines, and the now raging chicken-and-egg question: which is calculated first?
We attended three events in late 2013 where this was addressed: the MBA Family Law Conference Annual Conference, the Probate and Family Inn of Court November dinner meeting, and most recently, the Massachusetts Council on Family Mediation Institute on Nov. 22. What we know for sure is that judges and lawyers are debating two distinct views:
- computing child support first (and in most cases eliminating alimony because there is less than $250,000.00 of annual family income to apply), and then alimony if any income remains from which child support has not already been taken; or
- calculating alimony first, and applying the re-allocated income to the Child Support Guidelines formula, to determine the presumptive minimum child support sum.
As we have said here before, this conflict does not trouble us as divorce mediators, because the differing approaches encourage parties to look at a broader spectrum of possible results that meet their needs, and not simply flop into a formula. We believe that neither approach mandates a particular result or licenses abusive orders. To that, we might add that the generally reduced 2013 Child Support Guidelines amounts may compel a more flexible process to assist in finding a fair and sustainable result. Time and again, our mediation clients (all of whom have lawyers) have taught us that the truth often lies somewhere in between.
The arguments, essentially, are these:
“Anti-Double Counting”
- Statute trumps rule, therefore the alimony law’s ban on double counting of available dollars for two kinds of support negates the court’s discretion to follow the Child Support Guidelines’ permission to calculate alimony first; and that
- The Child Support Guidelines themselves define income by a laundry list that includes alimony from a prior spouse but does not mention alimony from a current one.
“Pro-Double Counting”
- The rules of bridge don’t apply because the double counting prohibition of the alimony law does not exist in the Child Support Guidelines, and sometimes it’s necessary and justifiable;
- The Child Support Guidelines’ definition of income is not exhaustive but is inclusive and expressly not limited to the laundry list provided; and that
- The 2013 Child Support Guidelines punish dependents by their reduced yield (except in very few, very low income cases).
It would be silly to deny that the alimony law and Child Support Guidelines conflict at some level; but, the conflict is not irreconcilable. As we blogged previously, the Child Support Guidelines don’t require that alimony be calculated first. They permit consideration of that approach. And, historic law of the purposes and parameters of “fair and equitable” support are not checked at the door of either construct. Considering alimony or child support first is a process, not a result. If one or the other view leads to an insufficient or a confiscatory result, the product of either is defective.
On the income definition side of the argument, it is true that the Child Support Guidelines expressly allow alimony received from a prior spouse to be tapped as a source of child support for a current child. Some argue that this means that alimony from a current spouse may not be used to fund child support, and that by computing alimony first, that is exactly what happens. To us, this seems circular.
Both alimony and child support are tools to re-allocate external income, such as wages,within the family. Until alimony has actually been ordered, there is no alimony income. Until child support is set, there is no child support. Therefore, when one is setting alimony and child support simultaneously, there can be no impermissible double count: there are merely two different ways to search for a sufficient and non-confiscatory order.
There is nothing in the alimony law that says that alimony must cover 30-35% of the difference in the spouses’ incomes. Alimony generally may not exceed that range. Similarly, the court is not required to apply the Child Support Guidelines resulting presumptive order. It may order less or more for good reasons. Taken together, the alimony law and the Child Support Guidelines can be used in tandem to fuel a process of inquiry that leads to a fair and tax-efficient result.
The legislature chose one way to address what they viewed as a potential for an impermissible double count. The Trial Court chose another for child support. Both bodies were authorized by law to act as they did. There’s no substitute for good lawyering, negotiating, mediating and judging. Default to formulas is easy and in many cases sufficient: not all by a long shot.
As we noted earlier, the new CSG include the Good, the Bad and the Huh? We don’t view this particular provision as fatal.
Of course, we reserve the right our change our minds!
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