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Parties Cannot Agree to Exclude Income in Child Support Calculations

The court recently considered the issue of what income to include as part of the child support calculation, and whether a mother had validly waived a portion of the father's income for purposes of calculating child support.

In the recent Hoegen case (Hoegen v. Hoegen, 14P1491), the parties were divorced by way of an agreement. As part of that agreement, the wife waived all interest in the husband's vested restricted stock units that he received as part of his employment compensation package. At the time of the divorce, the parties calculated the child support based only upon the husband's salary and excluded the additional income from the stock. At some point later, both parties sought to modify certain portions of their agreement including the child support calculation. The former wife sought to include the stock income while the former husband sought to exclude it based upon the former wife's waiver of all rights to that asset and income.

The child support guideline calculation includes income from both parties in the broadest definition as possible, including 26 stated categories of income and "any other form of income or compensation not specifically itemized." Based upon this broad definition, stock option income is considered for purposes of child support. The income was part of the former husband's "gross annual employment income," similar to salary, bonus, expenses and other forms of compensation, for the purposes of calculating child support. The court went on to stated that "if not characterized as such, 'a person could potentially avoid his or her obligation merely by choosing to be compensated in stock options instead of by a salary.'"

However, the issue remains as to whether this income was waived for calculating child support. The former wife waived her own interest in this asset for purposes of alimony or property division, it was not waived for child support. The court definitively stated that the parties cannot waive child support, or a portion of income thereto, on behalf of a child. The court found that it the mother's waver "cannot operate to waive her children's right to appropriate child support pursuant to the guidelines." "It is axiomatic under Massachusetts law that 'parents may no bargain away the rights of their children to support from either one of them.'"

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