Child Support v. Alimony - What happens when the non-custodial parent needs support?

We received the following question as an Anonymous Comment on our previous post: Alimony Reform and Child Support: What will Change?

How will you calculate child support in a case where the dependent spouse does not have physical custody and the incomes of the parties are grossly disparate?


With the new Alimony Reform in Massachusetts taking effect on March 1, 2012, we have been hearing this question a lot.  Although it is an unusual situation to have the custodial parent also be the higher earning spouse, it does happen.

Under the new Alimony statute:

"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."

Since the Massachusetts Child Support Guidelines presumptively apply up to a total gross income of $250,000, this section means that cases where the total gross income does not exceed $250,000 there won't be any income leftover to calculate alimony (absent some deviation factor).

While this could mean less overall support for cases where the custodial parent is also the lower wage-earner, the impact is even more significant when the non-custodial parent is the lower wage-earner.  While the non-custodial parent who earns less gets a break on child support, it seems unfair to say they never qualify for alimony if the total gross income of the parties is less than $250,000.

For example, consider the following sample case:

Mom has been the primary care parent and is a doctor who owns her own practice and has reasonable control over her hours and earns $200,000 per year.  Dad is a CNA who works odd hours and therefore has not spent as much time with the children.  He earns $35,000 per year.  The parties have been married for 15 years and have two children, ages 4 and 5.

The Massachusetts Child Support Guidelines will require that Dad pay Mom $94 per week in child support (approx. 14% of his income).

Since all of Mom and all of Dad's income were used in calculating child support a pure reading of the statute leaves nothing left to calculate alimony.  However, if there were no children this would clearly be an alimony case.  One argument in favor of this reading is that Mom who is the custodial parent in this case will be able to provide a better household for the children based on her higher income and no alimony.  The counter to that argument, though, is that keeping the Dad from having a similar lifestyle could damage his ability to spend time with the children and their desire to spend time at Dad's house, thereby encouraging Dad to be less involved rather than more involved in the children's lives.

It is unknown at this point how the trial courts and the appeals court will read this section.  Many practitioners that we have spoken to believe Judges will look to find a way around this "unfair" result, and use deviation factors to allow them to award alimony to the lower-earning spouse in a case like this (or at least reduce or eliminate child support).

The problem with these cases is that they are often not as clear cut as the example above, and often will involve prejudicial judgments made about the low-earning father or the non-custodial mother (i.e. assuming something is wrong with them).  Until the Appeals Court or SJC rules on this type of case we won't know for sure how this case will be dealt with, and we expect that the lower courts will vary in their application of the statute to these types of cases.

Retirement Does Not Stop Alimony - The Pierce Decision

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

A much awaited decision from the Massachusetts Supreme Judicial Court was published today: Pierce v. Pierce, SJC - 10381, Nov. 9, 2009. In this case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65. Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony. The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony.

The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement. Without that presumption, the Husband argues, the person receiving alimony has the right to essentially "veto" the retirement choice.

The Court rejected this argument, stating that the Judge's decision was within her discretion, and that retirement is only one of the factors in deciding what an alimony order should be. In answering the Husband's argument that this creates a "veto", the court dances around the issue by stating that the alimony judgment "eventually will need to be reduced," but that "the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.

Without saying it outright, the Court is endorsing the idea, that to some extent, when it comes to alimony the law treats the two parties as if they're still married. One spouse in a marriage doesn't have a veto over the other's decision to retire, but it is certainly something that would be discussed before a unilateral decision was made, especially if the other person is currently out of work. This is consistent with the Court's treatment of a long-term marriage forever linking two people's financial circumstances. We're not saying it's fair, just that it's consistent with the current case law, and that any changes are going to have to come from the legislature.

As an interesting side note, in it's discussion the Court reiterates the case law stating "In conducting this multifactor analysis, whether in fashioning the original alimony judgment or in modifying that judgment, the judge must weigh all the statutory factors in light of the facts of the particular case; no single factor is determinative. "

This quote could apply in a much broader sense than just to the factors in this case. For instance, many Judges have noted recently that they favor using a formula (such as the MBA-BBA Joint Tax Force Formula, explained further in the Stevenson-Kelsey Spousal Support Calculator article) . The Court's language regarding considering all factors, would appear to indicate that formulas are not allowed.

As a practice tip, this suggests that whether you are arguing the use of an alimony formula or arguing for the end of alimony upon retirement, you should always provide the underlying arguments on all of the statutory factors as well.

What if I want to try Reconciliation? Is there a way to protect myself?

One of the questions that I ask clients in our free 1-hour initial divorce consultation, is whether or not they believe their marriage is irretrievably broken down with no chance of reconciliation. This is the standard in Massachusetts for a Judge granting a divorce. Many potential clients, despite having scheduled a divorce consultation, are actually unable to answer this question because there is still some "chance of reconciliation." In these instances I explain their rights in a potential divorce case but recommend that they try counseling and not come back to my office unless they are sure about their answer. For some, they fear that trying to reconcile will put them in a vulnerable position financially and for those instances there is now a solution: Post-nuptial agreements (also called marital agreements) allow married couples to make contracts that will control what happens if they get divorced.

A post-nuptial agreement can resolve the financial concerns and assure someone they are protected, so they can then focus their energies on a true reconciliation without worrying if they are being taken advantage of. Similar to a pre-nuptial agreement, there are very specific restrictions, on how a post-nuptial must be created for it to be enforceable in Massachusetts.

As delineated by a recent Massachusetts Supreme Court case, there are even more requirements for a valid and enforceable post-nuptial agreement than there are for a pre-nuptial agreement (though many of the requirements are similar). Ansin v. Craven-Ansin, No. SJC-10548, July 16, 2010.

Links to news stories, the opinions of numerous attorneys and mediators as well as the Ansin opinion itself are all available at MaritalMediation.com. As a summary, the Ansin decision requires that a post-nuptial agreement withstand the following scrutiny to be upheld:

• Both parties must have had the "opportunity for counsel of own choosing."
• The agreement must be in writing.
• The agreement must be made with clear knowledge of the specific marital rights being waived.
• There must not be any fraud or coercion.
• The agreement must be fair and reasonable in view of M.G.L. c. 208 s 34 and not so different from a division under that statute as to be unreasonable.
• The agreement must be fair with respect to the impact it will have on the children of the marriage.
• The agreement must be fair with respect to the impact it will have on any third parties.
• The parties must have disclosed in writing a statement of assets with approximate values.
• The parties must have disclosed in writing a statement of their approximate income.
• The parties must have disclosed in writing a statement of any reasonably expected income changes in the "near future".
• The commitment to reconciliation must not be falsely misleading.

In order to ensure that you comply with these requirements, each party to a post-nuptial agreement should consult with their own counsel and review this list (as well as the Ansin decision).

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.