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NISSENBAUM’S STANDARD SET OF

 SUMMARIES OF LAW - DIVORCE

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VI. Child Support / Guidelines / Change of Name

Child Support

6.1 The policy underlying the Child Support Guidelines is to foster the security of children and "...to minimize the economic impact on the child of family breakup, to encourage joint parental responsibility for child support. In proportion to or as a percentage of income, to provide the standards for living the child would have enjoyed had the family been intact, to meet the child's survival needs in the first instance, but to the extent either parent enjoys that higher standard of living to entitle the children to enjoy that higher standard...." G.L. c. 211B, Section 15, as inserted by Ch. 310, Acts. 1986.

6.2 Child support is governed by G. L. c. 208, 28, which authorizes such support for children over eighteen only where (i) a child between eighteen and twenty-one is domiciled with one parent and is principally dependent on that parent for maintenance; or (ii) a child between twenty-one and twenty-three is domiciled with one parent and is principally dependent on that parent for maintenance due to the child's enrollment in an educational program (not extending beyond an undergraduate degree).

6.3 G.L. chapter 208, 28 and the Child Support Guidelines require the trial justice to make an award of support for the benefit of the minor children.

6.4 "In those cases in which it is the decision of the parties that the woman becomes the homemaker, the marriage is of substantial duration, and at separation the wife is [employable only at modest earnings], the husband simply has to face up to the fact that his support responsibilities are going to be of extended duration -- perhaps for life. This has nothing to do with feminism, sexism, male chauvinism, or any other trendy social ideology. It is ordinary common sense, basic decency and simple justice..." In re: Marriage of Branter, 67 Cal. App. 3d 416, 419, 420, 136 Cal. Rptr. 635 (1977), cited with approval in Bak v. Bak, 24 Mass. App. Ct. 608, 622 (1987).

6.5 G.L. chapter 208, 34 requires the trial justice to consider the present and future needs of the children, giving authority to the Court to award both child support.

6.6 Both Section 34 and the equitable powers of this Court provide more than sufficient authority to make orders as to which parent shall be the Trustee or custodian of the children's funds.

6.7 Child support is always modifiable. Ryan v. Ryan, 371 Mass. 430 (1976). Therefore, the Court can establish automatic readjustments of child support.

6.8 a. If the court finds a need to secure the future child support or alimony obligations of the Husband, might be possible and advisable, the Court may order the Husband to obtain life insurance payable to the Wife.

b. A "domestic relations order" is "any judgment, decree, or order (including approval of a property settlement) which -- (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (II) is made pursuant to a State domestic relations law." Silverman v. Spiro, 438 Mass. 725 (2003).

c. QDROs are exempt from ERISA's preemption provision. Silverman v. Spiro, 438 Mass. 725 (2003).

Child Support Guidelines.

6.9 The guidelines have presumptive application in all cases seeking the modification of a child support order. Canning v. Juskalian, 33 Mass. App. Ct. 202, 204 (1992); Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997).

6.10 The preamble to the guidelines states: "Modification may be allowed upon showing a discrepancy of [20% ] or more between an established order and a proposed new order calculated under these guidelines." Richard v. Mason, 54 Mass. App. Ct.568 (2002).

6.11 "[T]he court should deduct [payments made for support of a child of another relationship] from the gross income of payor before applying the formula to determine the child support order." Massachusetts Child Support Guidelines II-I. See G. L. c. 209C 9(f); O'Meara v. Doherty, 53 Mass. App. Ct. at 603-604. Richard v. Mason, 54 Mass. App. Ct.568 (2002).

6.12 Judge has discretion to increase or decrease by two percent "in consideration of the totality of the circumstances." Massachusetts Child Support Guidelines III-A. See Crowe v. Fong, 45 Mass. App. Ct. 673, 677 n.2. Richard v. Mason, 54 Mass. App. Ct. 568 (2002).

6.13 Judges have considerable discretion under the guidelines, and the exercise of this discretion may result in a range of proposed support orders. See, e.g., Canning, supra at 204-205 (range of $204 to $237 per week under guidelines); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 602-605 (2002) ($180 weekly support ordered by judge was within guidelines, notwithstanding that under mother's guidelines worksheet calculations $335.15 might have been ordered). Richard v. Mason, 54 Mass. App. Ct. 568 (2002).

Change of Name.

6.14 At common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose." Merolevitz, petitioner, 320 Mass. 448, 450 (1946).

6.15 A change of name petition may be sought pursuant to G. L. c. 210, 12 ("The change of name of a person shall be granted unless such change is inconsistent with public interests.") Richard v. Mason, 54 Mass. App. Ct. 568 (2002).

6.16 Section 12 "does not abrogate the common law right to use a name of one's choosing. . . . It simply aids a petitioner in securing an 'official record which definitely and specifically establishes his change of name.'" Verrill, petitioner, 40 Mass. App. Ct. 34, 35-36 (1996), quoting from Buyarsky, petitioner, 322 Mass. 335, 338 (1948).

6.17 Section 12 does not displace the "best interests" standard applicable to matters relating to the care and custody of children. See Jones v. Roe, 33 Mass. App. Ct. 660, 662 (1992). That standard is applicable to controversies surrounding the surnames of children, whether born to married or unmarried parents. See ibid.

6.18 Either parent can file change of name petition seeking to change the child's name from that of the father to the birth name or that of mother’s new husband. See Petition of Two Minors for Change of Name, 25 Mass. App. Ct. 941, 941 (1988). Jones v. Roe, 33 Mass. App. Ct. 660, 660 (1992) (father petitioned to change surname of daughter from mother's to his own)

6.19 Father can seek injunction to prevent mother using as that child's surname a name other than that of the father. See Margolis v. Margolis, 338 Mass. 416, 417 (1959). Cf. Cramer v. Hirsch, 18 Mass. App. Ct. 986, 986 (1984) (claim that mother's change of children's names to that of her new husband was breach of separation agreement).

6.20 "In resolving a dispute as to the surname of a child whose parents have not married, a court should not attribute greater weight to the father's interest in having the child bear the paternal surname than to the mother's interest in having the child bear her name." Jones v. Roe, 33 Mass. App. Ct. 660, 663 (1992), cited with approval in Richard v. Mason, 54 Mass. App. Ct. 568 (2002).

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