In 2011, the Alimony Reform Act determined that alimony is “the payment of support from one spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time.” G.L. c. 208, §48. The “reasonable length of time” during which alimony shall be paid has presumptive durational limits based upon the length of the marriage. Pursuant to G.L. c. 208, §53, the Court can deviate from the durational limits when setting the initial award or at the time an alimony award is modified “upon written findings that deviation is necessary.” The statute sets forth grounds for deviation, as follows:
(1) advanced age; chronic illness; or unusual health circumstances of either party;
(2) tax considerations applicable to the parties;
(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
(6) significant premarital … Keep reading
As a life-long Massachusetts resident, I find it hard to understand people who move to Massachusetts from warm climates. While my colleague, Jordan Bowne, recently suggested that fall is a great time to be in Massachusetts, we all know what comes after fall. Here are some words and phrases that come to mind when I think of winter in Massachusetts: snow, sleet, freezing rain, black ice, frozen pipes, ice dams, blizzard conditions, polar vortex, school cancellations, wind chills below zero, thundersnow… Should I go on? After spending hours digging out and then placing a beach chair on the side of the road as a “space-saver,” it might occur to some people that a beach chair could be put to better use in a warmer locale. If you were divorced in Massachusetts but have since moved to a place where your beach chair is only used at the beach, what state has jurisdiction to enforce or change the alimony provisions in your divorce agreement?
Modification: Alimony provisions that merge into a Judgment of Divorce can be changed upon a showing of a substantial and material change in circumstances. When that occurs, a party seeking to change the alimony terms needs … Keep reading
Divorce is hard. Along with all the emotional upheaval associated with the end of a relationship, the legal wrangling and disputes over division of assets, allocation of liabilities, parenting plans and the appropriate amount of support can be challenging. When special needs children are involved, parenting and support issues become even more complex.
Special needs children can place extraordinary demands on their caretakers. In fact, taking care of a special needs child often becomes a full time job for one of the parents. The parent who sacrificed his/her career to care for the child is likely to be faced with on-going caretaking responsibilities beyond the child’s age of majority. Determining spousal support for the caretaker-parent must account for the lost career opportunities both in the past, as well as in the future.
Where a child suffers from a physically debilitating condition, there can be challenges involved in meeting the child’s daily care needs, equipment, and specialized treatments that need to be considered. Parents may not have the financial ability to have two sets of necessary equipment to allow a child to safely spend time in each parent’s home. This creates additional problems when it comes to fashioning a parenting … Keep reading
As a divorce lawyer who also does some probate litigation and trusts and estate work, I have always been interested in the interplay between divorce and trusts and estates. Recently, the issue of whether gifts are considered income for purposes of calculating child support came across my desk.
Now in talking about gifts, I don’t mean the ugly reindeer sweater grandma sends you for Christmas every year. When speaking of gifts, I am referring to a specific estate planning strategy where wealth is transferred to others via use of a gift tax exclusion. Gift tax exclusion, sounds scary, but it is actually a pretty simple concept. A gift tax exclusion is the amount of money, or other assets, one person can give to another person in any given year without incurring a gift tax (simply put, how much dough grandma can give you before it has to be reported to taxing authorities).
For 2019, the annual gift tax exclusion is $15,000, which means any one person can give another person cash or assets totaling $15,000 in 2019 without triggering a gift tax. It is common in families where there is money to spare for parents to gift children, spouses, … Keep reading
With wedding season just around the corner, here is a primer on what a pre-nuptial agreement can and cannot do for you:
What a prenup is:
A prenuptial agreement is a private agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce and death. Each state has its own laws regarding the enforcement and validity of prenuptial agreements. Which state’s law to apply depends on where the marriage will take place, where the couple will live during the marriage, and what state law the agreement says to apply.
In most states, the agreement has to be fair, the parties have to fully disclose their assets, and each party needs to have their own attorney.
The idea of fairness depends on the unique facts and circumstances surrounding each couple. Would it be fair if after 20 years of marriage, the “poorer” spouse walked away with only the small amount of cash she brought into the marriage and no alimony? Probably not, particularly if she was a stay at home parent raising the children. It is to the “wealthier” spouse’s advantage to give the agreement … Keep reading
“We have been together for so long, it is as if we are married.” In a small number of jurisdictions, including nearby Rhode Island, a couple can be legally recognized as being married, without any formal registration of a civil or religious marriage. This legal concept is often referred to as a common law marriage. Massachusetts is one of a majority of states in which common law marriage is not available. Nevertheless, some of the principles of common law marriage can be applied in Massachusetts divorce cases, particularly those in which alimony is at issue. For example, when considering the length of the marriage in a divorce case, Massachusetts courts have the authority, under limited circumstances, to include months or even years prior to a legal marriage as part of the overall length of the marriage. The effect of this artificial extension to the marriage length can be significant: the longer the marriage, the longer the potential duration of alimony.
The Massachusetts Alimony Reform Act of 2011 provided in its definition of “length of the marriage” that the marriage length shall be calculated as the number of months from the date of the legal marriage to the date of … Keep reading
Happy New Year, all! May 2018 bring you health, happiness, and prosperity.
The federal Tax Cuts and Jobs Act, in conjunction with Massachusetts’ Alimony Reform Act, will bring the Commonwealth’s divorce practitioners and their clients a certain amount of confusion.
Prior divorces and divorces with agreements completed in 2018 will not be affected. But most divorces take longer than a year to complete, and thus, many folks filing in 2018 will be impacted by the changes.
The new federal law eliminates the deduction for alimony in divorces occurring after December 2018. Every previous settlement contract (and judicial divorce decision) was negotiated with consideration of the alimony deduction. It enabled the parties to save some of the money that would otherwise have gone to the government in taxes.
The Massachusetts Alimony Reform Act was written with these tax implications in mind. The percentages of alimony to be paid (30% to 35%) reflect the deduction to the payor, and are, therefore, higher than the child support calculation.
Both of these are laws, and the federal supersedes the state. As a result, real inequities to the payor spouses will exist if the legislature does not find a way to make … Keep reading
The alimony statute in Massachusetts provides that the amount of general alimony shall generally not exceed the recipient’s need or 30 to 35 percent of the difference between the parties’ gross incomes. It has long been the rule that the standard of need is measured by the “station” of the parties — by what is required to maintain a standard of living comparable to the one enjoyed during the marriage. The Supreme Judicial Court has provided further guidance in the decision of Young v. Young.
Derek and Joy Young had been married for 24 years when Mr. Young filed a Complaint for Divorce. Mr. Young worked as an executive, and his compensation consisted of base salary, cash bonus, stock options, investor equity units, share plans, and opportunities to purchase common stock at a discount. Mr. Young earned a substantial income, but the amount varied widely year to year. The parties enjoyed an affluent, upper-class standard of living during their marriage, which included an eight-bedroom residence, luxury vehicles, a summer home, and expensive vacations. After trial, the Court ordered Mr. Young to pay alimony to Mrs.Young of 33% of his gross annual income. The trial judge determined it was … Keep reading
New child support guidelines have been issued by Chief Justice Paula Carey, which go into effect on September 15, 2017. The new guidelines apply to all child support orders issued after that date. Substantive changes from the current guidelines in effect include the following:
- Consideration of parenting time where one party has more than one-third but less than fifty percent of the parenting time was eliminated. The child support task force felt that allowing for an alternative calculation of support based on this type of parenting plan increased litigation and acrimony between parents.
- The child support worksheet now contains adjustments for childcare and health insurance expenses in two steps. First, the parent who pays the childcare and/or health insurance deducts the cost from his/her gross income. Second, the parties share the total cost of child care and health insurance in proportion to their available income for support. However, because the adjustment for sharing the expense is capped at 15% of the child support order, the benefit to the party paying the costs may not be significant.
- Child support for children between the ages of 18 and 23 remains at the discretion of the Court. However, the new guidelines provide
… Keep reading
In the highly awaited decision of Van Arsdale v. Van Arsdale, the Supreme Judicial Court has ruled that application of the durational limits contained within the Alimony Reform Act to alimony agreements predating the Act is not unconstitutionally retroactive.
William and Susan married in 1979 and divorced 18 years later in 1997. At the time of the divorce, alimony in Massachusetts had no durational limits. And so, William and Susan agreed at the time of the divorce that William would pay alimony to Susan until Susan remarried or until one of them died. They also agreed to review the amount of alimony when the children emancipated and when William retired. In 2015, after the enactment of the Alimony Reform Act, William asked the court to terminate his alimony obligation based upon the durational limits contained in the Act and because he had retired from full time employment. For a marriage of 18 years, the Act provides that alimony shall continue for not longer than 80% of the number of months of the marriage. Susan argued that applying the durational limits retroactively to her agreement with William, which was entered into before the law went into effect, was unconstitutional.… Keep reading