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Massachusetts Judge Errs on Alimony and Child Support
Stefan Jouret, Esq, Member, Executive Committee, Fathers and Families of Massachusetts
The Massachusetts Appeals Court recently vacated alimony and child support components of a judgment because the Probate and Family Court judge made a number of errors. The case should warrant reduced alimony and child support obligations in other cases with similar facts.
In Zeghibe v. Zeghibe, Mass. App. Docket No. 11-P-860, (Oct. 11, 2012), a family court judge awarded a divorced father physical custody of one of his two children and ordered him to pay alimony in the amount of $405 a week. The judge also ordered the wife to pay him child support in the amount of $170 a week.
Alimony
At the time of the divorce, the wife was unemployed and residing with the two children in the marital home. Her weekly expenses at the time were $1,326.41 and she was awarded $1,000 in weekly support to meet her and the children’s financial needs ($600 in child support and $400 in alimony). Two years later, at the time of the modification, the judge found that the wife was earning $900 a week and therefore that her needs had decreased. Despite this, the modification judge used a mechanical formula and ordered the husband to pay increased weekly alimony in the amount of $405.
The Appeals Court rejected the modification judge’s reliance on a part of section V of the Alimony Task Force Guidelines providing that “An alimony or spousal support order should be entered in consideration of traditional concepts of alimony in a specific dollar amount which dollar amount should not exceed 33% of the difference between the gross ordinary incomes of the parties.” Yet the modification judge appeared to ignore both the title of the Task Force report and the report’s preamble indicating that the recommendations “do not apply to circumstances where the parties have dependent children.” Additionally, section V of the guidelines also makes clear that the 33% provision “is not to be utilized as a ‘formula’ for alimony but to recognize that a ‘cap’ of alimony orders should be available.”
Support
The husband’s argument concerning support included an argument that the judge had improperly attributed income to him in the amount of $31,000 a year ($596 a week). The basis for the attributed income was based on the premise that the husband had purposely reduced his “available income stream” by withdrawing $476,487 from his IRA and that he should not be “rewarded” for cashing in an “income producing asset.” In rejecting the modification judge’s analysis, the Appeals Court held that the husband received the IRA funds at the time of the divorce as part of the division of assets and not as a stream of income for purposes of computing support.
The Appeals Court noted that “[u]pon divorce, it is not uncommon, and often reasonable or necessary, for a party to use (or to change the form of) assets assigned to him or her for various purposes in starting anew . . . . [i]n this case, we think it is strained to characterize the husband’s actions as resulting in a ‘reward’ to him.” Accordingly, the Appeals Court set aside the modification and sent the case back to the Probate and Family Court for new calculations.
CNN Article Trashes ‘Deadbeat’ Dads
By Robert Franklin, Esq., Member, Fathers and Families
Board of Directors
It’s a familiar tale: “deadbeat” fathers who are fully capable of paying the support they owe, but just don’t, drive long-suffering mothers into poverty by their callous indifference to their children. (CNN, 11/5/12). Read article.
The reason for the article is to report the fact that some $108 billion is now owed in child support and that almost half of that is owed to “the taxpayers” for Temporary Assistance to Needy Families payments to poor mothers. That’s the latest information from the Office of Child Support Enforcement, and true enough, I suppose. Some 63% of child support debtors report earning less than $10,000 a year. And those figures come from 2008. With the recession, those dads’ finances have surely gotten worse.
Of course, all that debt isn’t child support, but interest on arrears. Different states charge different amounts, with some charging as high as 10%. Likewise, some states compound the interest yearly and one, Colorado, compounds it monthly. With sky-high rates and frequent compounding, it doesn’t take long for a parent who’s fallen behind to face a mountain of debt with no hope of repayment. In California for example, about 27% of its child support arrears consists of nothing but interest.
The facts of child support are actually pretty simple and well-known. First, family court judges set support levels too high; the Office of Child Support Enforcement admits this. When fathers fall behind, states make it as difficult as possible for them to get a hearing for a modification. When they do, the dads find that a downward modification is devilishly hard to obtain. Courts expect fathers to bankrupt themselves before they’ll order a modification. The recent Michigan Supreme Court case defining the defense of impossibility gives a good idea of what fathers have to do to get a break on child support.
Then there’s the well-known fact that mothers who don’t interfere with visitation are much more likely to receive child support and a greater percentage of it than those who do. So what does the federal government do? Having acknowledged the beneficial effects of visitation, it then spends $5 billion a year to enforce child support and essentially nothing, $10 million, to enforce visitation.
And of course, states do everything imaginable to prevent fathers from paying. Fall behind and you’ll find your driver’s license and other occupational licenses suspended. Fall further behind and you’ll find yourself in jail. All those things make earning and paying harder, not easier, but states enact the laws anyway and then wonder why dads don’t pay. Read full article.
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Mission
Fathers and Families improves the lives of children and strengthens society by protecting the child’s right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform that establishes equal rights and responsibilities for fathers and mothers.
Fathers and Families is a Shared Parenting Organization
Fathers and Families is a non-profit organization that is educating the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents and extended families. If you would like to get involved in our organization, you can do so several ways. First, we would love to have you as an official member of the Fathers and Families team. Second, Fathers and Families is an organization that believes in the importance of using social media as a means to spread the word about shared parenting and other topics, and you can visit us on our Facebook Page to learn more about our efforts. Last, we hope you will share this newsletter with other families using the many social networking sites so that we can bring about greater awareness of shared parenting. Thank you for your support.
Fathers and Families
PO Box 270760
Boston, Massachusetts 02127-0760
(617) 542-9300
www.fathersandfamilies.org
info@fathersandfamilies.org
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