Child Support in Gay & Lesbian Divorce

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Below we have provided answers to many of the common questions that we are asked about Child Support and how it is different for same-sex couples.

If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

How is Same-Sex Child Support Different?

In many ways divorce law in Massachusetts treats same-sex marriages and opposite-sex marriages the same. For that reason we have included on this page many of the frequently asked questions about child support below. However, it is also important for you to be aware of the few ways in which these cases will differ from opposite-sex cases. If you are facing a same-sex divorce, failing to recognize these differences or hiring counsel that is not aware of these differences could result in a significantly worse financial result in your case. Below we have provided one way that these cases can differ from opposite-sex child support cases:

ENFORCEMENT OF ORDERS OUT-OF-STATE: A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages. This means that they may also refuse to enforce same-sex Divorce Judgments against their state residents. Court Orders which may otherwise be enforceable across state lines, may lose their effect if your ex-spouse moves to one of these uncooperative states.

Frequently Asked Child Support Questions:

How long will I get child support for?
How long do I have to pay child support for?
How are the new Child Support Guidelines different?
What is included in income for calculating Child Support?
Does a second job count in calculating Child Support?
What if we share custody; does Child Support change?
Can I get past Child Support?
Will I have to pay past Child Support?
Is Child Support tax deductible?

What is Child Support?

Child Support is the amount of money paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support view ou Massachusetts Child Support Guidelines Worksheets click here.

Below we have provided answers to many of the common questions that we are asked by our clients involved in child support disputes. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

How long will I get child support for?
How long do I have to pay child support for?

In Massachusetts, child support can continue until the child is twenty-three (23). Except for the absolute maximum of age twenty-three (23), child support does not end upon a specific age but rather when the child becomes "emancipated." Emancipation in Massachusetts is defined in M.G.L. ch. 208 s. 28.

In basic terms child support in Massachusetts stops when the child turns age:

• 18, unless the child is still principally dependent on the custodial parent (i.e. the child is no longer principally dependent if they've moved out of the home, except for college, is employed full time, is married, of has joined the military);
• 21, unless the child is enrolled in a full-time undergraduate college program;
• 23, no matter what.

It is possible for a parent of a child over 23 to receive support if that child is a disabled adult and the subject of a guardianship, but this is rare. If you have a child who is disabled, whether they are an adult or not, you should consult with an attorney to discuss how your child's disability might affect other areas of your case as well.

How are the new Child Support Guidelines different?

The new Child Support Guidelines, effective January 1, 2009, are more similar to the guidelines in other states. Whether your support order will be lower or higher under the new guidelines depends on the facts of your case.

The new Guidelines contain numerous changes and are available here. Among the significant changes are an adjustment in the actual formula, a reduction in the credit given for health insurance cost (by crediting it off of the income rather than the final order), and the deletion of the custodial parent's $20,000 income credit.

To calculate your child support under the new formula view ou Massachusetts Child Support Guidelines Worksheets click here.

What is included in income for calculating Child Support?

Income is defined by the Guidelines includes everything you could possible construe as income. The exact list is available on page 2 of the Guidelines. Income for the Guidelines can include income not recognized or taxed by the IRS and if you are unsure of what should or should not be included you should consult with an attorney.

Does a second job count in calculating Child Support?

The Court can discount a second job or overtime income (fully or partially), but only if the Judge first considers the history of the extra income, the expectation that the income will continue, the impact of the overtime on the parenting plan, whether the extra work is a requirement of the job, and what the needs are of the parties and the children.

If the second job was started only after a child support order is set, then there is a presumption that it won't be considered in adjusting future orders.

If we share custody, does Child Support change?

The new Guidelines don't refer specifically to "shared custody" or "sole custody" but rather they recognize that whatever the label what's really important is the actual parenting plan. A parenting plan defines how much time each parent spends with the child, what the children's primary residence is (their "home base") and in some cases can be specific in enough to define every hour of every week and holiday.

The Guidelines are based upon the children having a primary residence with one parent and spending approximately 1/3 of the time with the other parent. If the parents share time equally, including sharing the financial responsibility equally, then the guidelines shall be calculated both ways.

Practitioners often call this "cross-guidelines." The child support guidelines are calculated twice, first with one parent as the Recipient, and second with the other parent as the Recipient. The Order is the difference in the calculations, which shall be paid to the parent with the lower weekly support amount.

We have provided Massachusetts Child Support Guidelines Worksheets here.

Can I get past Child Support?
Will I have to pay past Child Support?

In a Divorce case, a custodial parent cannot receive any child support for time prior to the filing and service of the Complaint. This is because there is a presumption that the parents lived together and shared income until the case was filed.

In a Paternity case there is no such presumption and a custodial parent can request child support arrears dating all the way back to the birth of the child. There are a number of factors that the Court can consider in determining the amount of and the appropriateness of a child support arrearage and you should consult with an attorney to discuss these factors, especially since this can often be a very significant amount of money.

Is Child Support tax deductible?

Child Support is not taxable income to the recipient, and is NOT tax deductible to the payor.



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