The 2009 Child Support Guidelines Worksheet had two sections which broke the worksheet down into an Income Section and a Calculation Section, with a resulting recommended child support amount. The new 2013 Child Support Guidelines worksheet changes these two sections and the calculations, which he have discussed previously.
In addition, the 2013 guidelines added a new section, Section 3 titled: AVAILABLE INCOME ABOVE $4,808 (If applicable.)
In cases where the combined household income is less than $4,808 per week ($250,000 per year), Section 3 will show all zeros. However, if the family income exceeds this figure, Section 3 displays the proportional amount that each party has left-over in gross income after using the first $4808 per week in combined income to calculate the minimum presumptive child support order.
For example, if the payor has $7,692 in income per week ($400,000 per year) and the recipient has $1,923 per week ($100,000 per year), then the child support guidelines would use only the first $4,808 per week and assign 80% of the child support figure to be paid by the payor because the payor has 80% of the household income. This means that the child support calculation in Section 2 of the worksheet only used the first $3,846 from the payor and $962 from the recipient (totaling $4,808 per week).
This leaves $3,846 and $962 left-over, unused for this calculation. Section 3 would then display these unused funds.
While the language of the Guidelines changed slightly relating to how the court should calculate child support in these high income cases, it really only clarified how to calculate the minimum presumptive order using a proportion of each parties income to the total income. The Guidelines make no mention of Section 3 and what the court is meant to do with this information.
The worksheet itself indicates below the title of Section 3 that this section should be "(Considered at the discretion of the Court.)" Without any guidance as to how this information should be used we are all struggling to know what to tell clients and how to prepare presentations for the court on this issue.
One Judge who was on the Task Force has indicated that Section 3 was for mostly informational purposes. By providing the information directly on the worksheet it gives Judges the ability to decide whether there should be alimony (in appropriate cases) or additional child support. Of course this information was available before, but the worksheet now saves the Judges from doing additional math.
In addition, there is a "suggestion" on page 68 of the Final Report of the 2012 Task Force regarding how we might uses this information:
"The Task Force was urged by the bar to provide guidance on how to calculate child support when the combined available income exceeds $250,000. Public input suggests that a lack of guidance leads to inconsistency in results throughout Massachusetts. In an efort to alleviate any inconsistency, the Task Force suggests that in cases where combined available income exceeds $250,000, the guidelines support amount should be applied on the first $250,000 and then applied to the combined available income above $250,000 ($4,808 weekly) in the same proportion for both the recipient’s and payor’s income as provided on line 1h of the Child Support Guidelines Worksheet."Essentially this recommends using the figures provided in section 3 and entering them back into the guidelines worksheet as Income in Section 1 to see what additional child support might be recommended. In the example above, ($3,846 and $962 respectively left-over) these figures would be plugged back into a new worksheet in the income section and yield a second child support amount. Because I have conveniently used exactly $500,000 of total income in this example, the results will be double the minimum presumptive order (because the second worksheet will result in the same award as the first worksheet).
In cases where the total income exceeds $500,000 this could mean preparing even more guidelines worksheets, because there would still be additional income in Section 3 even on the second worksheet.
While informative, this is non-binding since this "suggestion" didn't end up in the final Guidelines. The obvious practice tip for attorneys, though, is to include this additional calculation in their presentation to the court, along with this quote from the Task Force Report. Even in mediation and collaborative divorce cases, I would suggest providing this information to the parties as it may assist them in reaching a reasonable settlement figure.