The traditional law of modification for child support is that a modification can be granted when there exists a material and substantial change of circumstances from the prior court order. There have been many court decisions interpreting this standard. In 1998, Massachusetts changed G.L. c. 208, § 28
which provides that a child support order shall be modified "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines." In the Morales case, the Court describes G.L. c. 208, § 28 as establishing a different standard for a modification, the inconsistency standard. I have always interpreted this law as stating that an inconsistency from the existing guidelines constituted a material change of circumstances. The result is the same, child support can and should be modified any time there is a variance from the order and the guidelines.
In the Morales case, the Court also addressed another aspect of the child support guidelines: overtime. In this case, the trial judge announced that she does not include overtime in the child support calculations. The child support guidelines give the judge ability to disregard overtime after considering numerous factors. However, this trial Judge never considered overtime. On appeal, the court found that the Judge cannot approach the child support guidelines with an inflexible rule on consideration of overtime. The Judge must approach as a neutral and give due consideration to the factors as stated in the child support guidelines.
My interpretation of this case is as follows:
- The child support guidelines are not guidelines. They are a set of rules that must be followed.
- Any time that there is a variance from current calculations under the child support guidelines, there should be a modification. Hopefully, parents will exchange financial information on a regular basis and make the adjustments without resorting to litigation.
- People who pay child support (payors) should not make deals to pay different sums than dictated by the child support guidelines. As an example, assume the parties agree to pay reduced child support in exchange for a lump sum payment. This could be approved at the time of a divorce. However, what happens one year later when the recipient of the support seeks an increase to comply with the current child support guidelines? It appears that the payor could end up paying the current child support guidelines even though they made a deal to pay less. The lesson is that it is very risky to stray from the guidelines.
- It is reversable error for a Judge to state that they always approach the child support guidelines in a particular way. Judges may say this to encourage settlement. It appears that Judges should avoid making statements of this nature. In all probability, Judges will continue to have inflexible approaches to the application of the guidelines. However, they will probably stop talking about their approaches and just make rulings after hearing the evidence.