Does Reducing and Limiting Alimony Force Primary Caretakers into the Workforce?

When a child is born out of wedlock, either parent may initiate a court proceeding to establish certain rights and obligations that come with raising a child. Such rights include visitation, the ability to make significant life decisions for the child, and child support. The purpose of child support is to provide a measure of financial security for a child from a parent that might not be living with the child full-time.

When a child is born into a marriage that later dissolves, child support may be ordered, and usually is. The purpose of child support for children born into a marriage, or out of wedlock, is identical: to provide for the financial costs of raising a child.

However, when marriages dissolve, the finances of the couple might be such that a court will order alimony as well. The purpose of alimony is to provide for the financial well-being of a former spouse. The issue of alimony always has been, and will likely always be, controversial. The rationale behind it is that in a marriage, both people contribute in (ideally) complementary ways. When one spouse devotes time to furthering his or her career, it is (ideally) with the contribution of support from the other spouse. For example, if one spouse is picking up extra hours at work to get a promotion, he or she is doing so while his or her spouse is taking care of the home, or the kids. Often times, one spouse is not as able to further his or her career while their partner does. When the marriage dissolves, courts want the spouse who was not as able to further his or her career to smoothly transition into a financially independent unit, and the tool through which this is accomplished is alimony.

In Massachusetts, alimony is still officially a matter of great discretion for judges. The Alimony Reform Act of 2011 does not become effective until March 1, 2012, although many judges are issuing orders consistent with its new limits. The Act, for the first time in Massachusetts, creates a formula for calculating alimony, much like the existing child support guidelines in Massachusetts. One of the more important provisions of the Alimony Reform Act is that no income included in the calculation of child support will be then included in a calculation of alimony. The child support guidelines in Massachusetts are limited to a combined income of $250,000. Thus, unless the combined income in a marriage where there are minor children is more than $250,000, absent circumstances that would convince a judge to vary from the formulas, there will be only child support and no alimony order (provided that the lesser earning spouse is the primary caretaker of the minor child or children -- judges still have a good deal of discretion, and I would encourage you to speak to an attorney if you have any questions or concerns about your specific case).

This muddies the waters a bit from the varying justifications for child support (provide for the child) and alimony (provide for the former spouse). One justification for this is attrition. For couples earning less than $250,000 combined, there is usually not enough income to justify both child support and alimony. What the court will label as "child support" (and the IRS and Department of Revenue will treat as "child support") does assist the primary caretaker into transitioning into a financially independent unit.

However, it is not enough to provide for the economic quality of life enjoyed during the marriage. When a couple divorces, the expenses once shared (one home, one electricity bill, etc.) are now separated. Now there are two homes to pay for, and two electricity bills. Even if the combined income stays the same, the combined expenses will increase. For many individuals, receiving child support will not be enough. They will need to transition back into the workforce, or focus more time on increasing their income to meet their expenses. The "child support" will provide a measure of financial security to the recipient spouse as he or she transitions to devoting more energy towards furthering his or her career. This, unfortunately, comes at the cost (usually) of spending time at home with the children.

The Alimony Reform Act of 2011

On January 18, 2011, Senator Gale D. Candaras (D - Wilbraham) and Representative John V. Fernandes (D - Milford) filed An Act to Reform and Improve Alimony. The Act proposes sweeping changes to the Massachusetts alimony laws, and has already been endorsed by the Massachusetts Bar Association.

As we discussed in an article on December 3, 2011, a Legislative Task Force was created to recommend changes that would reach a consensus between Judges, attorneys and the alimony reform advocates. The Act proposed by Senator Candaras and Representative Fernandes is the result of that Task Force's hard work and according to the Press Release, the Act has the unanimous support of all members of the Task Force.

Kelsey & Trask, P.C., the authors of this Blog, have created a website that summarizes the provisions of the Act and provides a calculator based on the General Term Alimony recommendations: MassAlimonyFormula.com.

Here are some of the highlights:

M.G.L. c. 208 s. 34 Current Alimony Law	Alimony Reform Act of 2011 Proposed Alimony Changes
Factors: the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.	Factors: the length of the marriage; age of the parties; health of the parties; both parties' income, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court may deem relevant and material.
Types of Alimony: Undefined	Types of Alimony: General Term Alimony; Rehabilitative Alimony; Reimbursement Alimony; and Transitional Alimony.
Formula: NONE	Formula: Not to exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.
Durational Limits: NONE	Durational Limits: Rehabilitative Alimony: 5 year maximum. General Term Alimony: Marriage of 5 years or less - Limit is 50% of the length of the marriage; 5-10 years - 60%; 10-15 years - 70%; 15-20 years - 80%; 20 years or more - indefinite.
Cohabitation: No mention. Judge's have discretion to consider.	Cohabitation: The cohabitation of the recipient spouse with another person for a continuous period of at least three months may be cause for suspension, reduction or termination of alimony;
Retirement: No mention. Judge's have discretion per Pierce case.	Retirement: Alimony terminates upon payor attaining the full retirement age per the old-age retirement benefit under Social Security.
Remarriage of Payor: income and assets of the payor's spouse can be considered.	Remarriage of Payor: income and assets of the payor's spouse shall not be considered in a redetermination of alimony in a modification action.

For more information about the Act, visit MassAlimonyFormula.com.

For more information about the recent history of the alimony debate, view our previous post: It's a Trap! The Massachusetts Alimony Debate - February 13, 2010

For more information about the current state of alimony in Massachusetts visit our website's Alimony page.

Custody Reform: What is it?

If you live in Massachusetts, by now you've probably heard about Alimony Reform. Both the House and Senate have passed the Alimony Reform Act of 2011 and it now awaits the approval of the House again (for some language changes made by the Senate). Although, the majority of people in Massachusetts are just now learning about this reform, it has actually been in the works for at least 10 years. In various forms there have been numerous attempts to update the alimony laws in Massachusetts, culminating with a recent Legislative Task Force which authored and approved the current bill.



The same type of reform may be on the horizon for the Massachusetts custody statute.


The Joint Committee on the Judiciary held a public hearing on May 18, 2011 where public testimony was given primarily on Alimony Reform and a pending human trafficking bill. But there were also a few people (mostly fathers) who were there to present testimony in support of a few different bills that would make changes to how custody is determined in the Massachusetts Probate and Family Courts. After further review there are currently six pending bills which would make significant changes in this area, and six more that would make minor tweaks or additions to the current custody statute.


We have provided links to the current custody statute and each of the proposed bills, below. Over the next two weeks we will be posting a series of blogs evaluating the pros and cons of each of these proposals and comparing them to the current statute. We believe that, similar to alimony reform, there are flaws in the current law that could be improved with some updating. However, we also recognize that some of these proposals go too far.


We will provide insight to how these proposals might work in certain instances and fail in others and we hope that our analysis over the course of these posts will provide a benefit from our experience as family law practitioners.


Current Statute: M.G.L. 208 s 31 - Custody of children; shared custody plans


S.659 – Legislation to strengthen family relationships through responsible shared parenting;


S.847 – Legislation to share custody of minor children of divorced or separated parents;


H.1306 – Legislation relative to shared parenting in cases of divorce;


H.1330 – Legislation relative to the determination of the legal custody of children in court cases;


H.2244 – Legislation relative to the rights of parents in child custody proceedings;


H.2684 – Legislation relative to supporting children and parental custody;


H.2851 – Legislation relative to mediation of divorce cases involving children;


H.1305 – Legislation relative to child care involvement of non-custodial parents;


S.691– Legislation relative to parental choice of terminology in certain domestic relations matters;


H.2258– Legislation relative to parental choice in child custody agreements;


H.3289 – Legislation relative to the modification of custody orders involving parents called to active military service;


H.3289 – Legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved.


To read more about Shared Parenting in Massachusetts, check out the following pages:


Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.


Child Custody Mediation

Collaborative Child Custody Resolution

Child Custody Litigation

The New Alimony Law: A Primer for the Public

The Divorce Center Offers Seminar Introducing Recent Major Changes to the Massachusetts Alimony Law
Effective March 1, the Alimony Reform Act of 2011 Changed the Massachusetts Alimony Law Significantly for the First Time in 30 Years

Newton, Mass. – March 28, 2012 – The Divorce Center, a non-profit organization of professionals from multiple disciplines providing support and education for people going through separation or divorce, is offering a seminar entitled:

“The New Alimony Law: A Primer for the Public” on May 15, 2012 from 7:00 to 9:00 p.m. at the Weston Public Library community room, Weston, MA.

David L. Rubin, Esq., and Debra L. Smith, Esq., attorneys practicing divorce and family law, will speak on the numerous changes made to the Massachusetts Alimony Law, which has not been updated in 30 years. The changes were prompted by the Alimony Reform Act of 2011 and were effective March 1.

The Massachusetts Alimony Reform Act of 2011 changed when and how alimony can be ordered, and when and how alimony orders can be ended. The new law affects anyone who currently is or may be receiving alimony.

Attendees will learn:

• The multiple types of alimony defined by the new law; 
• The maximum amount of alimony defined by the new law; 
• The new limits to the duration of the general term of alimony; 
• When and if existing alimony orders can be modified; and 
• The factors that will determine the type, amount and duration of alimony.

The Weston Library is located at 87 School Street, Weston, MA.

This seminar is offered free of charge, however a donation of $20 is suggested.

For more information on “The New Alimony Law: A Primer for the Public” and to register for the seminar, visit: http://thedivorcecenter.org/public/seminars.php.


About the New Massachusetts Alimony Law:

The new Massachusetts Alimony Law states that the amount of alimony should not exceed the recipient’s need or 30-35% of the difference between the two parties’ incomes. Also, the income considered when setting alimony orders does not include capital gains income and interest and dividend income from assets already divided. When modifying orders, income from a second job or overtime is excluded if the party works more than a single full-time equivalent position, or if the second job or overtime started after entry of the initial order. The general alimony term ends upon the death of the payor or recipient, remarriage of the recipient, the payor attaining the full retirement age, co-habitation of the recipient with another person for a continuous period of at least three months, or the expiration of the duration formula, which is based on the length of the marriage.


About The Divorce Center:

The Divorce Center is a non-profit organization of legal, financial and mental health professionals providing support and education for people going through separation or divorce. Since 1983, the non-profit organization has been helping ease the trauma of divorce and make the process more civilized, especially for the children.

The Divorce Center provides two tiers of service:

• Educating individuals and the community at large about divorce and its effects, and the services and resources available to them; and 
• Helping professionals from various disciplines improve the service they provide to their divorcing clients. The organization offers its expertise and compassion to all those who need it — individuals and families, divorce professionals, religious groups, parent organizations, non-profit groups, and others who can benefit from the professional programs, public education and support groups.

For more information, visit http://thedivorcecenter.org.

Does the Staggered Duration Formula for Alimony Mean that Lawyers Will Encourage Potential Clients to File for Divorce?

Hopefully not! However, it does make anniversaries more important than they already are.

Under the Massachusetts Alimony Reform Act of 2011, which becomes officially effective on March 1, 2012, general term alimony will now have a time limit, determined by the length of the marriage.

• For marriages lasting 5 years or less, general term alimony will last no longer than one-half of the number of months of the marriage.
• For marriages lasting more than 5 years but less than 10 years, general term alimony will last no longer than 60% of the number of months of the marriage.
• For marriages lasting more than 10 years but less than 15 years, general term alimony will last no longer than 70% of the number of months of the marriage.
• For marriages lasting more than 15 years but less than 20 years, general term alimony will last no longer than 80% of the number of months of the marriage.
• For marriages lasting more than 20 years, the court may order that general term alimony will last indefinitely.

There are circumstances that would justify a deviation from this staggered scheme, such as the recipient spouse co-habitating with a significant other, and the death of either spouse, and I would encourage you to speak to an attorney if you have questions about the Alimony Reform Act of 2011.

The staggered scheme creates a jump in the duration of an alimony order for each five years of marriage. This creates a dilemma for individuals who are approaching a five, ten, fifteen, or twenty year anniversary and are struggling with whether to seek a divorce. Waiting until after one of these pivotal anniversaries, should their situation be one where alimony is later awarded, would result in paying alimony for a longer period of time.

This puts attorneys in an uncomfortable position. Any respectable family law attorney would never advise or encourage an individual that is struggling with the decision of whether to remain in a marriage and commit to repairing any existing damage to get a divorce. For individuals that come into our conference room for an initial consultation, walking through our door is often one of the most difficult decisions that they have made. It is not the attorney's job to make that decision any more difficult.

The dilemma lies with individuals who are seeking legal advice but have not yet made a final decision as to whether they will file for divorce. Part of our job as attorneys is to inform our clients, and potential clients, what the law is. With the staggered scheme for calculating the duration of alimony, this means that remaining married past a five, ten, fifteen, or twenty year anniversary could result in a longer alimony order.  It is up to the individual whether this is a tipping point for filing, or just a consequence of not yet being sure whether their marriage is over.

How can I Support or Fight the Alimony Reform Act of 2011?

The Alimony Reform Act of 2011 is legislation currently pending in Massachusetts which would significantly change how the Courts here handle alimony cases. The proposed bill would limit the duration and amount of alimony, exclude payor's second spouse income, and end (or reduce) alimony upon cohabitation and retirement.

Of course, these changes are controversial and in many cases favor payors. On the other hand, payors will argue that the current law unreasonably favors recipients.

Whether you are in favor or against the Alimony Reform Act of 2011, if you are a resident of Massachusetts you should make your opinion known. Contact your State Senator and Representative and tell them whether you want them to become additional sponsors or oppose the bill. If you want to know who your representatives are click here. Massachusetts Alimony Reform, an organization in favor of the bill (obviously given their choice of name), has provided a sample letter to send if you also favor the legislation.

To see Denise Squillante, President of the Massachusetts Bar Association summarize the Act on Fox25 News check out this video:

Alimony reform bill: Are changes on the way?: MyFoxBOSTON.com

If you want to read more about the proposed changes visit our last article: The Alimony Reform Act of 2011 or go to MassAlimonyFormula.com.

You can also Comment on this (or our previous posts) by completing the "Post a Comment" box at the end of each article.

Latest Update on Massachusetts Alimony Reform Act of 2011

Both the House of Representatives and the Senate in the Massachusetts State House have unanimously passed the Alimony Reform Act of 2011, however, the Senate changed a few words. Proponents of the bill are hoping that it avoids going back to committee, and as of now it is unclear as to whether a full House vote will be required. The bill is still expected to pass, but this is a bump in what has for some been a very long road towards reform.

Modification under the Alimony Reform Act of 2011: Updated Flowchart.

The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011. You always have the ability to reach an agreement for modification, but in the event that you and your ex-spouse disagree about whether a modification order should be changed, this chart can help you figure out whether a court will change your order.

The new law becomes effective March 1, 2012 but to prevent a rush to the courthouse steps, the Act provides for delayed implementation of some of the provisions.  The dates are as follows:

March 1, 2012 - the Act takes affect for current cases; previously adjudicated cases can be modified if the recipient spouse is cohabitating as defined in the statute;

March 1, 2013 - Modifications allowed for marriages of less than 5 years or if the payor will reach Social Security Retirement Age by March 1, 2015;

March 1, 2014 - Modifications allowed for marriages of less than 10 years;

March 1, 2015 - Modifications allowed for marriages of less than 15 years;

September 1, 2015 - Modifications allowed for marriages of less than 20 years.

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

To reprint copy and past the following code:

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Click here for more information about Modifications in Massachusetts.

Post-Divorce Problems: Should my Alimony Order Change?

Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived.   Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.  When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment.  If merged this means that such orders can be modified if there is a material and significant change in circumstances.  Merging alimony orders is more typical because no one knows exactly what could change in the future.

If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011.  We have explored this possibility at length in our previous post:  Modification under the Alimony Reform Act of 2011: Updated Flowchart.

In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimony orders that merged can be modified if there has been a material and significant change in circumstances.

In order to modify alimony you must file a Complaint for Modification.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file an agreement with your Complaint and request an uncontested hearing.  If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.

To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is alimony, then you must demonstrate that there has been a change to the factors that affect an alimony determination, such as the income of the parties, expenses of the parties or needs of the parties. In addition, you must demonstrate that that change is significant.

Click here to calculate your Alimony in Massachusetts under the new law.

Click here to learn more about filing a Complaint for Modification.

Alimony Reform Act approved Unanimously by the House

According to the Boston Globe, the Massachusetts House has approved the Alimony Reform Act of 2011 unanimously and the bill now waits for a vote by the Senate.

To read more about the act visit MassAlimonyFormula.com

Update on the Alimony Reform Act of 2011: The Winds of Change

On May 18, 2011, a public hearing took place at the Massachusetts State House before the Joint Committee on the Judiciary. The bills that garnered the most attention involved human trafficking, redefining joint custody, and the Massachusetts Alimony Reform Act of 2011 (S0665). While efforts to reform alimony in Massachusetts have fallen short in the past, the atmosphere was one similar to watching an athlete jog a victory lap.

In a forum designed to encourage debate and dissenting opinions, there was no notable opposition to the bill, as the Joint Task Force established by the Judiciary Committee seems to have crafted a bill that expected to pass this session. Steve Hitner, the co-founder of the Mass Alimony Reform group, received a standing ovation and a round of applause just prior to testifying. Usually, such welcomes operate against the rules of decorum, but Committee co-chairs Eugene O'Flaherty (D-Chelsea) and Cynthia Stone Creem (D-Newton) allowed it, recognizing the efforts of Hitner and other members of the Task Force in reaching a realistic middle ground.

We at Kelsey & Trask have already voiced our support for the proposed bill, and if it indeeds becomes the law in Massachusetts, we will continue to advocate for our clients under the new law.

If you're interested in seeing a summary of the bill's changes and viewing a calculator for the proposed formulas visit MassAlimonyFormula.com.

You can view the full video of the Joint Committee hearing here.

Update: Massachusetts Alimony Reform Closer to Becoming Law

Yesterday, the Massachusetts House of Representatives passed the Senate version of the Alimony Reform Act of 2011, meaning that its only remaining hurdle before becoming law (although it has an effective date of March 1, 2012) is Governor Patrick's signature. Governor Patrick has previously indicated his support for the bill.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Alimony Reform and Child Support: What will Change?

UPDATE: The Massachusetts Alimony Reform Act of 2011 was signed by the Governor on September 26, 2011. The new law, which becomes effective March 1, 2012, makes significant changes to alimony in Massachusetts. Read more about these changes here.

The Massachusetts Alimony Reform Act of 2011 has been passed by both the House and the Senate and now awaits the Governor's signature. Once it is passed, which is almost assured at this point, there will be many questions about how it is implemented. The one I am receiving most often already is:

How will alimony be calculated in cases with child support?

The section of the Alimony Reform Act that addresses this question is Section 6(c):

"For purposes of setting an alimony order, the court shall exclude from its income calculation:

(1) Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and

(2) Gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts Child Support Guidelines or otherwise; provided that nothing in this section shall limit the court’s discretion to cast a presumptive child support order under the Child Support Guidelines in terms of unallocated or undifferentiated alimony and child support."

As indicated, the Alimony Reform Act would exclude from any General Term Alimony calculation gross income which was already used to calculate child support. Since the Massachusetts Child Support Guidelines presumptively apply up to a total gross income of $250,000, many practitioners read this section to mean that any cases where the total gross income does not exceed $250,000 will not have alimony if they have child support. This is the most obvious reading of the section, and was the intention as described by one of the drafters on the Joint Task Force at a recent conference I attended (I won't call her out by name but she is a lawyer who clearly understood the implications).

There has been some outrage over this interpretation because it is one of the most significant changes this law makes to presumptive alimony in child support cases. However, there are exceptions, which I will detail below.

Before I tell you the exceptions, though, let's examine if this is truly unfair (or at least inconsistent with the rest of the Act):

Sample Case:

The Act contains a formula for calculating the maximum alimony award as follows: "the amount of alimony should generally not exceed the recipient’s need or 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued."

This means that if the higher-earning spouse (let's use the name Chris) earns $125,000 and the lower-earning spouse (Pat) earns $25,000 in gross income, then alimony should not exceed $30,000 to $35,000 per year. This assumes no child support, that Pat has a need for support, and that the marriage is of sufficient length to warrant support. If we use the average of $32,500 then Chris' after payment income is $92,500 and Pat's is $57,500, and all of Pat's $57,500 will be taxable income. Assuming an effective tax rate of 15%, Pat ends up with $48,875 in net income.

Now let's add children. Chris still earns $125,000 and Pat earns $25,000. Chris is the non-custodial parent and Pat is the custodial parent. Child Support by the guidelines (assuming no other expenses for simplicity) is $510 per week, $26,520 per year. Since all of Chris' income was taken into account for child support guidelines, the Alimony Reform Act would indicate that none is left to consider for alimony. Chris' after payment income is $98,480 and Pat's is $51,520, but only $25,000 of this is taxable income to Pat. Again assuming an effective tax rate of 15%, Pat ends up with $47,770 in net income. In addition, Chris is still paying tax on $125,000 in income.

As you can see, although Pat is receiving almost $6,000 less in support, when you take into account the taxation of alimony vs. the tax-free nature of child support, the effective support that Pat is receiving from child support is only about $1,000 less. And this difference is not necessarily going to Chris, rather it is being taxed by Uncle Sam.

Given the tax-free nature of child support to the recipient, in cases where all of the income is considered in calculating child support, the Alimony Reform Act's exclusion of that income from calculating alimony is consistent with the caps that they have proposed on total support. Of course, these numbers won't work out the same at all income levels. The differences will be greater as the gap in incomes becomes greater. And while it may seem foolish to pay that extra money to the tax-man, the drafters did provide for an alternative by allowing the Judges to have discretion on assigning some of child support as unallocated support.

Exceptions:

Furthermore, there are exceptions which can also help crafty attorneys get around this child support limitation in the Alimony Reform Act. In setting any alimony order the Judges are not completely limited by this formula and can vary depending on numerous circumstances:

"Grounds for deviation may include:

(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 heath 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 cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;

(7) A party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor;

(8) A party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity; and

(9) Upon written findings, any other factor that the court deems relevant and material."

Aside from the fact that there is a broad catch-all in number 9, the most obvious and useful tool in arriving at a more fair balance of child support and alimony in any case is deviation factor number 2: Tax considerations applicable to the parties. In the example used above, even if Chris and Pat have children, restructuring the support paid by Chris to include some alimony and some child support could result in better tax treatment for the family overall, and greater net income for both.

The Alimony Reform Act simply puts the burden on parties to show these tax considerations to the Judge to assist them in deciding what cases are appropriate for variation. The Judge can then deviate from the guidelines completely, or choose to use a portion of Chris' income in calculating child support and a portion in calculating alimony, a result still consistent with the Section 6(c) limitation.

This ability to deviate, built into the Act, means that the child support limitation is not as limiting as some fear.

The Catch

Yes, there is always a catch. The problem in reaching agreements or judgments that split the total support payment between child support and alimony is that both of these types of payments have different duration. Under the Act, alimony duration is limited by a formula dependent on the length of the marriage, whereas child support duration is limited by the emancipation of the children. These dates may coincide but most likely will not, and the needs of either the children or the lower-earning spouse will need to be taken into account in creating such a deviation.

Finally, as with the rest of the Act, once it becomes effective we will have to see how the Courts of the Commonwealth implement it. Despite our opinion that the reading of this child support section is clear, we are  not on the Appeals or Supreme Court and until they rule there is certainly room for interpretation.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Click here for a Massachusetts Child Support Guidelines Worksheet.

Thank you to Julia Rueschemeyer for inspiring us to finally write this post.