Author: Robin M. Lynch Nardone


Divorce Law Monitor Blog Robin Lynch Nardone

The Massachusetts alimony statute provides that when alimony is set, the court shall exclude from the calculation gross income which the court has already considered for setting a child support order.  Effectively, this has meant that for most divorcing parties with minor children, where the parties together make less than $400,000 per year, there is only a child support order but no alimony.  To the chagrin of many who spent years working on alimony reform, the Supreme Judicial Court has determined that the alimony statute does not mean what it says.

In August 2022, in the case of Cavanagh v. Cavanagh, the SJC determined that a judge abused her discretion when she calculated child support and then, without conducting a fact-specific analysis of the family’s circumstances, denied the wife any alimony based upon the following language in G.L. c. 208 § 53(c)(2):

When issuing an order for alimony, the court shall exclude from its income calculation: … gross income which the court has already considered for setting a child support order.

The SJC held that a plain language interpretation of § 53(c)(2) resulting in alimony being nearly prohibited where child support has already been awarded is untenable. Further, … Keep reading

Griffin v. Kay: A Cautionary Tale in How Your Separation Agreement Is Worded


When spouses reach agreement on terms for a divorce, a written settlement document – commonly known as a Separation Agreement – is prepared. Parties then decide whether the agreement will either “merge” into the Judgment of Divorce or “survive” as an independent contract. I have written about how your election impacts your ability to modify provisions in the future.

The recent decision in Griffin v. Kay is an excellent cautionary tale about making sure that the merger or survival language is clear and that both you and your spouse agree on what that language means.

Geraldine Griffin and Harry Kay divorced in 2004 and entered into an agreement calling for Harry to pay alimony of $90,000 per year until the death of either party or Geraldine’s remarriage. Their agreement provided as follows relative to merger or survival of the alimony provisions:

Notwithstanding the incorporation of this [a]greement in the [divorce judgment], it shall not be merged in the [J]udgment, but shall survive the same . . . retaining its independent significance as a contract between the parties. Provided, however, in the event of a material negative and involuntary change in the circumstances of either party, that party may seek … Keep reading

Divorce Law Monitor Blog Robin Lynch Nardone


Divorce Law Monitor Blog Robin Lynch Nardone

Alcohol consumption is widespread in American culture. A 2020 study conducted by the Centers for Disease Control found that two-thirds (66.3%) of American adults consumed alcohol in the past year, with 5.1% of them admitting to engaging in regular heavy drinking.

The likelihood of divorce triples for couples where one party struggles with alcohol. According to some statistics, more than 14.5 million Americans suffer from alcohol abuse disorders – defined by the National Institute on Alcohol Abuse and Alcoholism as a chronic relapsing brain disorder characterized by an impaired ability to stop or control alcohol use despite adverse social, occupational, or health consequences.

Study data reflects that more than 7.5 million children in the United States live with a parent who suffers from an alcohol abuse disorder.

How are children protected during a divorce? The Court always strives to maintain a parental relationship while also protecting the child(ren) from harm. When a parent’s alcohol use impairs their ability to care for a child physically and/or emotionally during or after a divorce, the Court will intervene.

Interventions can include:

  • Requiring a parent to maintain sobriety in order to exercise parenting time, which is monitored through random urine screens or the
… Keep reading
What Happens to the Life Insurance After Divorce?


It depends on what was put into writing – or not! On January 10, 2022, the Massachusetts Supreme Judicial Court (SJC) ruled that where a former husband failed to change the beneficiary designation on his life insurance policy, the divorce operated to revoke the designation of his former wife as primary beneficiary.

In the case of American Family Life Assurance Company of Columbus v. Joann Parker, the SJC was asked to consider whether the Massachusetts Uniform Probate Code (UPC), which went into effect on March 31, 2012, applied retroactively to a policy of insurance purchased by Sean Parker in 2010.

When he purchased the life insurance policy in 2010, Sean named his then-wife, Dawn, as primary beneficiary and his mother, Joann, as the contingent beneficiary. Sean and Dawn divorced in 2016, but their Separation Agreement makes no mention of the life insurance policy. Rather, their Separation Agreement provides only that they divided their personal property to their satisfaction and that there were no agreements between them outside of the Separation Agreement.

Following the divorce, Dawn continued to pay the premiums on Sean’s insurance policy, because she claimed he had agreed that she remain the beneficiary of the policy. … Keep reading

Why You Should Consider Using a Parenting Coordinator


A parenting coordinator is a third party hired by divorced or divorcing parents to help resolve parenting disputes – such as holiday and vacation plans, the selection of activities for the children, or school choice. Under Massachusetts Probate and Family Court Standing Order 1-17, a parenting coordinator can be appointed in any case relating to the care and custody of minor children. Under the Standing Order, parents may, by agreement, engage a parenting coordinator to assist them in dealing with existing or future conflicts regarding their access to and responsibilities for their children. A parenting coordinator can be given authority to make binding decisions or be limited to simply trying to help the parties come to mutual agreement.

Here are a few of the benefits to hiring a parenting coordinator:

  • Less time in court. A parenting coordinator can help parents avoid repeated trips to the courthouse to deal with minor disputes.
  • Less cost. Sharing the cost of a parenting coordinator will be less expensive than continuing to use attorneys to work out parenting disputes.
  • Quicker decisions. It can take months to get a hearing date in the Probate and Family Court. Parenting decisions often must be made quickly
… Keep reading
New Child Support Guidelines to Go Into Effect This Fall


On August 2, 2021, Chief Justice of the Trial Court, Paula M. Carey, signed new Child Support Guidelines, which go into effect on October 4, 2021. These new guidelines are the result of work by the Child Support Guidelines Task Force, which was convened by Chief Justice Carey in 2020 to undertake the quadrennial review of the Massachusetts Child Support Guidelines required by federal regulations.

If you currently pay or receive child support, you should consider whether these new guidelines result in a different child support obligation in your situation. There is a rebuttable presumption that the guidelines apply in all cases establishing or modifying a child support order, regardless of whether the parents are married or unmarried, the order is temporary or final, or the Court is deciding whether to approve an agreement for child support. There is also a rebuttable presumption that the amount of the child support order calculated under the guidelines is the appropriate amount of child support to be ordered. Existing child support orders are not automatically changed to be in compliance with the new guidelines unless the parties specifically agreed within the terms of an Agreement to automatically recalculate child support. Absent … Keep reading

Non-Disparagement Orders in Custody Cases


As my partner Andrea Dunbar recently wrote, it is inappropriate to post negative comments about the opposing party in a custody matter on social media. But can the court prohibit it? The answer in most cases is no.

Notwithstanding the fact that the Commonwealth of Massachusetts has a compelling interest in protecting children from being exposed to disparagement between their parents, freedom of speech is protected by the First Amendment to the U.S. Constitution. The First Amendment limits the government’s power to restrict expression simply because the government does not like the subject matter, idea, or content of the message. An Order from a Probate and Family Court judge instructing a party not to post comments about the other parent on social media is called a “non-disparagement order.” These types of orders are prior restraint on speech. In order for prior restraint on speech to be allowed, the speech must be truly exceptional. This requires that the harm expected from the unrestrained speech must be grave, the likelihood of the speech must be all but certain absent the prior restraint, and the order must be the least restrictive way to stop the grave harm. The Massachusetts Supreme Judicial … Keep reading

What You Need to Know About the American Rescue Plan Act


President Biden signed the American Rescue Plan Act on March 11, 2021. In addition to the stimulus payment, this plan contains some tax credits that should be considered by parents divorcing this year.

The Child Tax Credit

• The plan increases the Child Tax Credit from $2,000 to $3,000 per child – $3,600 for any child under the age of 6 – for tax year 2021 only.

• The plan provides for children under the age of 18 at year-end – as opposed to 17 under the current plan – to qualify for the credit for tax year 2021.

• For 2021 only, the credit is fully refundable, even to those with no taxable income • The 2021 credit starts phasing out for single filers at $75,000, for head of household filers at $112,500, and for joint filers at $150,000.

• The American Rescue Plan Act requires that half of the Child Tax Credit be paid in advance, meaning that payments for 2021 should be paid between July and December 2021 with six monthly payments. Eligibility for the credit will, in the first instance, be based on 2020 tax returns.

• This credit can be taken by the parent … Keep reading

Consideration of Income From Assets in Modifying Alimony


The Massachusetts Appeals Court recently issued another decision interpreting the Alimony Reform Act, which went into effect in 2012. In the March 2, 2021 decision of Dolan v. Dolan, the Appeals Court provides guidance on the meaning of General Law Chapter 208, section 53(c)(1), which states:

(c) When issuing an order for alimony, the court shall exclude from its income calculation:

(1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties under section 34.

In Dolan, the husband sought a downward modification of his obligation to pay alimony to the wife under a 2016 Judgment of Divorce after he sold his business, leaving him with lower earned income. The husband was continuing to receive payments from the sale of the business. He argued that capital gain income from the sale could not be considered when determining his ongoing alimony obligation because the business was an asset assigned to him at the time of the divorce. The wife argued that modification of alimony is a two-step process: the judge must first determine that there has been a material change in circumstances and only after that threshold is met can the … Keep reading

Divorce and Bankruptcy


During divorce:

When a bankruptcy petition is filed, an “automatic stay” is put in place, which stops creditors from proceeding with collection actions, foreclosure, eviction, and the like. Assets are frozen so that the bankruptcy court has the opportunity to determine what assets are owned by the petitioner and what debts are owed. Suppose a spouse files a bankruptcy petition while a divorce is pending (or a divorce is filed while a bankruptcy petition is pending). In that case, the Probate and Family Court will be unable to proceed with the division of assets in a divorce due to the automatic stay, essentially halting the divorce process until the bankruptcy matter is concluded.

After divorce:

When a bankruptcy petition is filed by a party after a divorce and seeks to discharge financial obligations contained in a judgment of divorce, anything in the nature of a “domestic support obligation” cannot be discharged. Whether an obligation in a judgment of divorce is a “domestic support obligation” is determined by federal bankruptcy law and not by the Probate and Family Court. According to 11 U.S.C. § 101(14A), a domestic support obligation is a debt that (1) is owed to a … Keep reading