As we struggle in our daily lives to separate fact from fiction, fake news from real news, we at the Centre for Mediation and Dispute Resolution wish to help divorcing couples expand their understanding of the divorce process and the laws that impact on their decision making. We hope to dispel misconceptions and expand each individual’s knowledge base, in order for couples to reach agreements that will “fit” their family’s needs and be acceptable to the court.
This second part of our two-part article is intended to respond to common misconceptions held by divorcing couples with respect to support and support-related aspects of their Agreement.
STATEMENT: How can the court tell us how much our kids cost a year? After all they do not know our kids or us. Anyway the child support formula is way more than we spend each year.
RESPONSE: Every couple has to present to the court the child support guideline formula in effect at the time of their petition for divorce. The court allows a couple to submit a deviation from the formula in which they present why they believe that the guideline sum is inappropriate, even detrimental, given their family circumstances. The court may or may not accept the rationale presented for deviation.
In addition, the formula that is submitted by all divorcing couples, does not base the calculation simply on “out-of-pocket expenditures for children.” It also includes consideration of the custodial parent’s or parents’ housing and other, seemingly less child-focused expenses. It is worthwhile for couples to read the detailed explanation that accompanies the formula in order to better understand the commonwealth of Massachusetts’ reasoning behind the formula.
STATEMENT: Why is there no mechanism to prove that the money I pay for child support is actually used for child support? I would prefer to pay for the kids’ expenses, when and if, they occur or at the least to have accountability built in.
RESPONSE: You are correct. There is no accountability in the sense that you indicate. Since the child support formula is intended to encompass expenses that are needed by the custodial parent (or parents) to care for the children (e.g., adequate housing), the formula is not based on a set list of costs.
If both parents have similar incomes and share custody of their children, there will probably not be a child support payment from one parent to the other. In these circumstances it is likely that the parents will share liability for the children’s expenses on a more or less equal basis.
STATEMENT: A judge cannot tell us that we have to pay for our children’s college education. Nobody from the state comes into the homes of married couples (or unmarried parents) and tells them to pay for college.
RESPONSE: A judge can tell you, as parents, that you are each responsible for contributing to your children’s college education at an amount of up to 50% of the cost of university of Massachusetts at Amherst for an in-state student or more if the court feels it is affordable and justified. Perhaps this is because the court has seen far too many post-divorce modifications based on parental inability to agree on liability for children’s postsecondary education.
STATEMENT: If my spouse lives with someone, alimony stops, right?
RESPONSE: The alimony law provides for three different scenarios in the event of a spouse’s cohabitation while receiving alimony.
Alimony may indeed stop after 3 months of continuous cohabitation and never resume.
Alimony may be reduced.
Alimony may be suspended and resume if the cohabitation relationship ends.
Couples can, of course, create hybrid agreements. For example, alimony can be reduced for a specified period of time and then resume. Alimony may terminate after a time period longer than 3 months and so on.
Collaboration and creativity are essential in dealing with questions of cohabitation. Emotions run especially high in this area. Alimony payors object to continued payments, assuming that the new person living with their former spouses will make financial contributions. Alternatively alimony recipients balk at the notion of their former spouse having the right to cohabitate and not them, at least not without financial consequences.
This article has only presented a small fraction of the many objections and misconceptions related to spousal and child support terms in divorce agreements. The objective here is to make couples explore possibilities, expand the boundaries in which they devise solutions, and most of all to propose that divorcing couples work together to create an agreement, which as a whole, addresses, to the extent possible, the needs and concerns of the post divorce family, leaving in its wake a minimum of open concerns. Here mediation, with an experienced and knowledgeable guide, helps couples to think through issues, to explore solutions, and to structure an agreement that is both thoughtful and thorough.