Suitable Residence as a Custody Consideration

Kelly and Ken are divorced and share custody of their three minor children. Kelly maintains a modest, but clean and safe home in a small town, while Ken lives in a one-bedroom apartment. Ken’s building is pretty run-down, and it is located in an area of a large city known for its high crime rates. Kelly is concerned that Ken cannot provide a suitable residence to the parties’ children when they visit with him. First, she is concerned about the children’s safety in Ken’s neighborhood and building; second, she is concerned that the lack of an extra bedroom means the children’s sleeping arrangements are less than ideal. Kelly wishes to petition the court for sole physical custody of the children.

Custody Factors

When addressing issues of custody, the Probate and Family Court judge will look at various factors to determine which parent would be most suitable to have primary physical or legal custody of a child. Making these decisions based on the “best interests of the child standard,” the factors considered are the fitness of the parent, children’s preference, and home environment, among others. In these cases, even if your ex-spouse says your home is unfit, it is ultimately up to a judge to determine what is best for the child.

Suitable Residence Factor

When considering the suitable residence factor in determining child custody, the court may consider whether the living conditions would affect a child’s physical, mental and emotional health. For example, in Ventrice v. Ventrice, the Court reversed a custody award because the judge did not consider the children’s living situation. In that case, the ex-wife’s negligent attitude towards her home environment and safety forced the judge to reverse the initial award. The Court found that the ex-wife’s home was “dirty and unkempt” and she failed to barricade an 80 foot cliff near her home, all things that were not in the best interest of her children.

Additionally, the Massachusetts courts have held that a residence where a child would be taken care of by many different adults would not be in the best interest of the child. In Hunter v. Rose, the Court awarded custody to the parent with a stable job and flexible work hours, rather than to parent who had lived in four different residences in less than one year, with no nearby relatives and five different care providers for daughter. The court believed that this living arrangement would put the child in unfamiliar environment with new caregivers and medical providers while the parent was unavailable, thereby putting in question whether it was a suitable residence. Also, the Court has determined that if the child were to be placed in a stable home environment or in a clean home, this would have a positive effect on a parent’s hopes for physical custody.

On the other side of the coin, the Courts have also held that simply giving a child a high standard of living does not mean custody should be awarded to the parent whose lifestyle allows for a higher standard. For example, in one case, Bak v. Bak, the Court held that stating that material advantage and successful child-rearing do not necessarily go hand in hand. To base custody determination on material advantage would likely punish the less affluent party, the Court stated. In other words, even if your home is nicer than your spouse’s, this in and of itself is not a reason to award custody for you.

However, it is important that the income and resources of a parent are sufficient to provide a proper standard of living and suitable residence for the child. In the hypothetical scenario above, the Court will consider whether it is in the best interests of the children to stay with Ken, in light of the lack of space, safety considerations, and other potential issues with the standard of living that Ken may offer. Of course, the living arrangements will be only one of many different factors that the Court will consider in determining which party should have custody, ultimately basing its decision on what is in the best interests of the child.

If you need more information about issues of child custody or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

What is Rehabilitative Alimony, and How Does It Work?

Family dynamics are complex. The members of a family unit must work hard to support their family system. In some family units, one spouse may work while the other stays home. Other families include two spouses who work. The diversity of the family unit applies to Massachusetts same-sex relationships as well.

One example of an issue in Massachusetts family and divorce law cases is how rehabilitative alimony is awarded and the method by which it works.

Take the following example: Leila and Les started dating fifteen years ago. Les worked full-time as a bank teller, and Leila had recently earned a college degree in computer information systems and started a career in her field at a local company. Over the years during their relationship, Les graduated from college and graduate school. During this time, Leila supported Les’s professional endeavors. She cared for all household responsibilities, including tasks such as cleaning, cooking, and raising the couple’s children after they were born. Recently, Leila and Les were married, but sadly they decided to divorce.

Because of the years of sustaining the family unit at home, Leila even as a girlfriend, did not build a career for herself. She now believes that she would not be able to obtain a career unless she pursued another college degree. Her computer degree is outdated, and she does not have as much experience as others in her field. Assuming that their divorce proceeds forward, how would the Massachusetts courts award alimony to the wife? Is the court able to award alimony for a short length of time?

In Massachusetts, the Probate and Family Court may award rehabilitative alimony. As one of four forms of alimony, rehabilitative alimony is a form of financial support for a short period of time. Rehabilitative alimony allows the spouse who receives the alimony to reestablish herself until she is self-sufficient and self-sustaining. Until the receiving spouse is self-supporting and more independent, the paying spouse may be required to make payments to the receiving spouse.

To refer to the example above, Leila may want to obtain a modern computer degree or take additional classes to update her skill set. A Massachusetts court may award her alimony for the length of time required to complete her degree plus several more months, so that she may obtain a career position. The judge may award an equitable amount that is subject to the judge’s discretion.

Suppose that the husband in the aforementioned example remarries. Would he be able to terminate the payments to his former wife? The answer is no. However, if the wife remarries, the wife would not be able to continue to receive alimony payments.

One question often asked by many couples, spouses, and clients is, how long may the rehabilitative alimony payments last? Alimony payments may be made for 5 years or less. The payments may also end if either party passes away.

This award may later be modified if needed, in the event of a material change in circumstances. Let’s say that the Massachusetts orders Les to make monthly payments to Leila in the amount of $2000. Two months later, Leila becomes a social media blogger superstar and earns one million dollars per year. May Les stop making payments to her without the court’s approval? The answer is no, but Les may petition the court to modify the alimony amount. Because Leila could be deemed to be self-sustaining based upon her income, the Massachusetts judge would likely alter the amount of the alimony payment.

Conversely, if the wife was unable to become self-sufficient during the period of her alimony, the wife may ask the court to extend her alimony by arguing that her circumstances are compelling enough to warrant an extension of alimony.

In addition to awarding rehabilitative alimony, Massachusetts courts may award three other forms of alimony: (1) General Term Alimony; (2) Reimbursement Alimony; and (3) Transitional Alimony.

It is important to hire a competent family law lawyer to handle your unique case. If you have any questions about alimony, divorce, or family law issues, please call our offices at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.

Full Disclosure of Assets is Needed for Prenuptial Agreements

Peter and Petra are getting married. Peter has considerable assets, including several homes, vacation homes, and checking and savings accounts. He also owns a string of rental properties from which he receives income. He deposits the rental income into an account which is not under his name, but rather the name of a trust he created. Petra, conversely, does not have much by way of assets, save for a modest savings account.

Peter and Petra have agreed to draft and sign a prenuptial agreement. Their respective attorneys have informed them that they would need to fully disclose their assets to the other party—in other words, they would need to inform each other about anything and everything of value they own. Peter has asked his attorney whether he needs to tell Petra about the rental income. After all, it is held in trust; what if Peter chose not to disclose it?

Prenuptial Agreements, Generally

An antenuptial agreement, also called a prenuptial agreement, is a written contract between two people who are about to be married. It serves to set out the terms regarding the division of property in the event of a divorce, along with any provisions for alimony.

Generally, in order for a prenuptial agreement to be considered valid and enforceable in Massachusetts, the agreement must meet the following elements:

  • it must be in writing;
  • signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the agreement must be fair and reasonable, and enforcement must not be against countervailing equities;
  • the parties must have adequate opportunity to consult with independent counsel;
  • the parties must understand and clearly indicate the rights which they are contracting away; and
  • the parties must not relieve themselves of their legal obligations during the marriage through the agreement.

 

Full Disclosure of Assets

In the above scenario between Peter and Petra, the element of full disclosure is at issue. To ensure that the process of signing the antenuptial agreement is fair and equitable to both parties, the court requires a full financial disclosure of the parties’ assets. In essence, the parties will be viewed to have a confidential relationship which brings with it the duty to disclose, mutually attributed to each party.

Lack of full disclosure may result in the parties’ agreement being invalidated. In some cases, lack of disclosure amounts to a form of fraud, particularly where there is a demonstrable inequity between the parties’ assets. Looking at the above example, this is the case, as Peter clearly possesses more assets than Petra.

In one case, the Massachusetts appeals court invalidated a prenuptial agreement after finding a lack of full disclosure on the husband’s part. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). In that case, the husband kept the wife in the dark regarding his financial assets. He also claimed during the divorce proceedings that his primary asset, his real estate company, was a partnership. He claimed that his parents owned a one-half interest in the company. Moreover, the husband then attempted to make a fifty-percent, retroactive distribution of the real estate company’s assets to his parents during the divorce proceedings.

Financial Disclosure Schedules

In order to avoid any potential questions down the line, full disclosure should take place in writing. Each party should, for best practices, draft a financial disclosure schedule, which will be attached to the prenuptial agreement as an addendum. This schedule should clearly delineate and disclose all of the party’s assets to the other party. It should include:

  • a listing of the party’s assets, along with the value of each asset;
  • any outstanding liabilities of the party;
  • the sources and amounts of the party’s income;
  • any interests in businesses, partnerships, etc.; and
  • any expectations of inheritances or other potential assets.

Moreover, the agreement should include a section which makes it clear that both parties have read each other’s financial disclosure schedules, understand it, have acknowledged reading it, and have had the opportunity to consult with an attorney regarding it.

If you need assistance with a prenuptial agreement or have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

 

Stopping Your Divorce When You and Your Spouse Have Changed Your Minds

Let’s set the scene: you and your spouse have already filed for divorce. As you are still friendly, you plan on getting a no-fault, and are awaiting your court date. As time is passing by, you are thinking about what is best for the both of you, your family, and your future. You both decide that you no longer want to go through with the divorce. What do you do?

At this stage in court proceedings, when there has been no involvement of a judge, dismissing a divorce is a very easy process. In this case, we are going to assume that you have filed a joint petition for divorce. If so, you and your spouse can go to the court and execute a Stipulation of Dismissal. When a settlement is reached in a pending case, a voluntary stipulation of dismissal is generally filed by the parties to resolve the action.

On the other hand, this may be a situation when there has been court involvement and perhaps a divorce already has been approved by a court in the Commonwealth. As in other states, there is a mandatory waiting period after a Judgement of Divorce in Massachusetts before it becomes final. This period is known as a nisi period. During this 90-day nisi period, the parties in divorce are given the option to change their mind before the divorce becomes final. During the nisi period, the marriage has not been dissolved. In an interesting Massachusetts case, Vaughan v. Vaughan, the Court held that where one party died during the nisi period, the other party was considered the surviving spouse of the deceased party.

If you decide to change your mind regarding a divorce which was already granted by the court, the parties can file a motion to dismiss the divorce judgment. A judge may only grant a motion to dismiss a divorce complaint during the nisi period if there is “sufficient cause.” For example, in one case, Mailer v. Mailer, the court held that issues with financial aspects of a divorce would not rise to sufficient cause to grant the motion of dismiss. However, an exception to this is if both parties in a divorce file a memo to agree to dismiss the divorce—there, no hearing is required, and the motion to dismiss will be granted.

Assuming you are the party who is seeking to dismiss a divorce action on behalf of yourself and the other party, it is necessary to file a statement of objections to the judgment of divorce during the nisi period.

If you need more information about dismissing a divorce or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

Condonation

Condonation, along with connivance, collusion and recrimination, are affirmative defenses to a fault claim for divorce. These defenses were commonplace in England’s ecclesiastical courts[1] but infrequently asserted in Massachusetts divorce cases and not statutorily grounded. Many jurisdictions have abolished the condonation defense.[2]

Condonation involves one spouse absolving or accepting the other spouse’s misconduct which would constitute grounds for divorce. In essence, it means that a party continues or resumes marital cohabitation despite the other spouse’s misconduct. The defense is most often raised in divorce actions alleging adultery. The argument says that dissolution of the marriage should be denied because the complaining spouse forgave or didn’t object to the other spouse’s wrongful behavior and their union continued. If, however, the unfaithful spouse were to cheat again after the previous infidelity was forgiven, an adultery claim could be brought. Condonation may also be offered as a defense in other fault-based divorce actions, such as those alleging fraud.

Some jurisdictions consider a couple’s resumption of marital relations after the defendant spouse’s wrongful behavior as conclusive proof of condonation. The Massachusetts Appeals Court, following the lead of the Maine Supreme Court, has held that “[s]exual intercourse is not…per se condonation.”[3]

In the Zildjian case, the defendant wife appealed her alimony award and judgment of divorce for cruel and abusive treatment granted her husband, contending that the couple continued to live together after the first two instances of alleged cruel and abusive treatment. The court rejected her argument, finding that: “Condonation is a state of mind to be determined upon all the evidence, including rational inference.”[4] Condonation, the court noted, requires a factual determination of an intent to forgive, adding that a trial judge’s denial of the defense should only be overturned on appeal if clearly wrong.

In a more recent case, Sullivan v. Sullivan,[5] the wife was granted a divorce on the grounds of adultery. The husband vacated the marital home one month after his spouse discovered his affair, though the couple tried to reconcile over the course of several months, taking family trips together, going on several dates, and engaging in sexual relations when the wife visited the husband’s condominium. Nevertheless, the Appeals Court upheld the probate judge’s rejection of the husband’s defense, ruling that the wife never condoned the husband’s affair, that the husband never returned to the marital home and that the wife continued to demean the husband about his infidelity during the couple’s attempted reconciliation.

If you have any questions about divorce or family law issues, call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Robbins v. Robbins, 140 Mass. 528, 529-530, 5 N.E. 837, 839 (1886).

[2] Chalmers v. Chalmers, 65 N.J. 186, 190-191, 320 A.2d. 478 (1974).

[3] Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 391 N.E.2d 697, 700 (1979).

[4] Zildjian, 391 N.E.2d at 700, citing Hayden v. Hayden, 326 Mass., 587, 591, 96 N.E.2d 136, 139 (1950).

[5] 10-P-1531 (Mass. App. Ct. 2011)

Visitation Options in Cases of Domestic Violence

Matt and Mary are going through the divorce. Matt alleges that during the marriage, Mary had engaged in a repeated pattern of physical and verbal abuse toward him. The couple had two children together, and the children live with Matt. Both parties want to know whether Mary may have visitation rights with the children.

In other words, the issue is as follows: would a Massachusetts judge allow the person with a history of physical and verbal abuse to have visitation with his or her children?

In Massachusetts, the rights of the parents to have custody of their minor children are generally equal.[1] Courts are concerned with the happiness and welfare of the child, including understanding the ways in which the child’s present or past living conditions affect the child’s physical, mental, moral, or emotional health. Id.

This right is not all-encompassing, however. Massachusetts courts may require that a parent have supervised visitation with children. Supervised visitation means that a “third party is present during the visits to ensure that the child is safe and that the visiting parent acts appropriately.”[2] There are many instances where supervised visitation is appropriate, including “when the visiting parent has a history of abuse toward that child or another child” or “when the visiting parent has a history of abuse toward the other parent.”[3]

As another consideration, an abused parent may continue to suffer abuse by the other parent. In this circumstance, the victim may obtain a restraining order under chapter 209A of the Massachusetts General Laws.[4] A 209A order requests that a Massachusetts judge order that the victim be given custody of the children, but this is rebuttable.

Moreover, the Supreme Judicial Court has held that “where there has been domestic violence between parties, judges must consider the effects that this violence has had on the child before making a decision about custody” and that physical violence is a violation of a basic human right, that is, to live in physical security.[5]

If a parent with custody of children believes that the children are at risk of abuse during visitation, the parent with custody may petition the court to end the visits between the children and the abuser and demonstrate that the visits are not in the best interest of the children.[6] If the parent with custody is at risk of harm, but the children are safe, the parent with custody may seek an order for a supervised exchange of the children.[7]

If you or your child(ren) are in serious or immediate physical danger, you should contact emergency personnel. You may wish to speak with an attorney with competence in this area of the law. Family law, domestic violence law, intimate partner violence law, and child law are intricate facets of the legal system and your family dynamics. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws. ch. 208 § 31

[2] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf<

[3] Id.

[4] Id. at 249

[5] Id. at 254 (citing to Custody of Vaughn, 422 Mass. 590, 595 (1996))

[6] Family Law Advocacy for Low and Moderate Income Litigants, 2nd Edition, 2008 >https://www.masslegalservices.org/system/files/library/Chapter+09+Final.pdf< (citing to Donnelly v. Donnelly, 4 Mass. App. Ct. 162 (1976))

[7] Id.

What Provisions Should be Included in a Separation Agreement?

For just about every couple seeking a divorce, the separation agreement is an exhausting and time-consuming document. With the right attorney, the process can be smoother, but it is imperative that a person seeking a divorce contact an attorney experienced in these matters. Your attorney should work toward drafting a separation agreement on your behalf. But what provisions ought to be included?

Separation agreements should address several mandatory statutory factors related to alimony, benefits, funds, estates, property, and insurance.[1]

These mandatory factors may also include other provisions. For example, separation agreements may include custody provisions, such as the legal and physical custody of any children. They may include living arrangements, parenting plans, emergency decision planning, religious training, and more. Agreements may also include provisions related to child support, such as the amount, costs for extracurricular activities, and taxation information. Separation agreements may also include provisions related to a child’s education expenses and involvement in college applications or financial aid. The agreement may also include provisions related to the health, dental, and vision insurance for children.

Separation agreements may also include alimony provisions, such as the amounts, tax effect, and possible future modification of alimony. Provisions related to the former spouse’s health, dental, vision, and life insurance may be included. Also, provisions related to the marital home may be included. This encompasses joint ownership provisions, homeowner’s insurance provisions, maintenance provisions, and more. If the parties possess other shared income, the parties should include provisions related to that additional property as well. This may include pension and retirement, securities, bank accounts, and family business provisions. Separation agreements may also include provisions related to taxes, debt, liabilities, and the procedure for any future disputes.

After the separation agreement is written, the agreement is presented to a Massachusetts judge.[2] After a hearing about the merits of the separation agreement, the judge may decide to accept the separation agreement.[3] The judge may decide that a separation agreement is sufficient if the separation agreement contains provisions for custody, support and maintenance, for alimony and the disposition of marital property, and for what is in the best interests of any children, if applicable.[4] This is a broad standard, and each drafted separation agreement must be specific to the parties because every family has unique challenges and responsibilities.

Separation agreements must also be “fair and reasonable.”[5] Some of the many factors that establish whether a separation agreement is reasonable include the following: the consideration of financial provisions as a whole; the context of how the negotiation of the agreement occurred; the background and knowledge of the parties; and the agreement in the context of the statutory factors for property division and spousal support.[6]

If you are seeking answers to your questions about separation agreements or general family issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws ch. 208 § 34

[2] Mass Gen. Laws ch. 208 § 1A

[3] Id,

[4] Id.

[5] Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984)

[6] Id.

Absent Parents and Termination of Parental Rights: New Case Law

A judge may draw a negative inference from a parent’s absence and find that the parent is unfit, terminating parental rights, according to a recent decision of the Massachusetts Appeals Court.

In Adoption of Talik, the Court terminated parental rights of a mother failed to attend a trial regarding reunification with her child.  Adoption of Talik, 92 Mass. App. Ct. 367 (2017). The child, born in 2013, tested positive for narcotics at birth and was placed in the custody of the Department of Children and Families, then shortly after discharged to the care of his foster parents.

DCF drafted a service plan for the mother, with the goal of reunifying the mother and the child. Under that plan, the mother was to participate in substance abuse treatment, provide toxicology screens, and attend visits with her child, among other tasks. Due to a lack of attendance, the mother was discharged from the program.

Soon thereafter, DCF’s goal changed to that of adoption. A relative of the child who resided in California expressed interest in having the child placed with her, and California Child Protective Services conducted a placement study. The study concluded that the relative’s home did not meet the proper standards for placement as applied in Massachusetts, and the child remained with his foster parents. The mother sued, claiming that DCF abused its discretion, and seeking to have the child placed in the care of the relative.

During the trial, the mother’s attorney was present, but the mother was absent despite having had notice of the proceedings. The judge issued a decision terminating the mother’s parental rights and approving DCF’s plan to have the child adopted by his foster parents. On appeal, the mother argued an abuse of discretion by the trial judge.

The Appeals Court affirmed the trial judge’s decision. “[A]n adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt,” the Court stated. “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child’s best interests.” Id., at 371-372.

The Court further explained that the trial judge has discretion to determine whether to draw such an inference, considering whether such inference is fair and reasonable based on all applicable circumstances. In the present case, the Court noted, the judge did not abuse his discretion, given the mother’s history of substance abuse, long history of domestic violence, failure to continue treatment, and noncompliance with the service plan.

If you need more information about Massachusetts family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

Alimony Modification and the Emancipation of a Child: Recent Case Law

A recent Massachusetts case addressed the issue of alimony modification where the event triggering a material change of circumstances was the emancipation of a child.

In Flor v. Flor, the parties’ divorce judgment had ordered the husband to pay child support to the wife until their child’s twenty-third birthday. Flor v. Flor, 92 Mass. App. Ct. 360 (2017). The divorce decree also included an express waiver of the wife’s right to seek past and present alimony, but an express reservation of her right to seek alimony in the future.

As the child’s twenty-third birthday approached, the wife brought an action for modification and sought an award of alimony from the husband. The trial judge sided with the wife, ordering the husband to pay $145 weekly payments in alimony. The judge found that the wife’s expenses increased since the divorce while the husband’s expenses decreased; that the wife had not held steady employment since the divorce; that the husband’s financial circumstances were far superior to the wife’s; and that the emancipation of the child, couples with the loss of child support payments, constituted a material change in circumstances.

The husband appealed, claiming that the trial judge abused his discretion. The husband argued two things regarding the lack of a material change in circumstances: “, (1) that any material changes in circumstances are wholly attributable to the wife’s own neglect, and (2) that the loss of child support cannot be viewed as a material change.” Id., at 363.

The Appeals Court sided with the wife, stating that the impact of the wife’s failure to work was too speculative to require the judge to have attributed income to the wife. The court held that the trial judge correctly applied the Massachusetts laws governing alimony modification. “The judge found that the wife’s expenses had increased, and that she was unable to cover those expenses, even with a minimum wage job, whereas the husband enjoyed increased assets, decreased expenses, and had the ability to support the wife,” the Court stated. “The judge thus concluded that the wife had carried her burden of demonstrating that a material change in circumstances existed.” Id., at 364.

The husband further argued that he had a reasonable expectation that his support obligations would terminate at his child’s emancipation, based on the separation agreement. The court disagreed. “[T]he express reservation of the wife’s right to seek alimony in the future renders any such expectation unreasonable on its face,” the Court said. “The agreement reflects a mutual understanding that should circumstances change, the wife would be able to seek spousal support.” Id., at 366.

If you need more information about the Massachusetts alimony law or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

The Health of the Parties in Modification of Alimony

After a judgment has been ordered by the court for alimony there are certain situations where either party may take action to modify the judgment.[1] For a party to be successful on a claim for alimony modification, the party must prove to the court that there has been a material change in circumstances that would render a change in alimony just.[2] A judge will then consider all relevant factors to decide if a modification of alimony is appropriate.[3] One of the many factors the court will consider when modifying an existing order is chronic illness or unusual health circumstances of either party.[4]

Since alimony is modifiable the court has discretion to change the amount being paid in situations where the health of a party affects his or her ability to earn an income. When the party receiving alimony payments suffers from a severe mental illness, courts have been inclined to award a more generous alimony amount than if the party were in good health.[5] The judge will consider how severe the mental illness is and how it affects the receiving party’s earning capacity and ability to secure and maintain employment.[6]

In one Massachusetts case, Vedensky v. Vedensky, because the husband’s severe mental illness prevented him from working at his former level, the wife was ordered to pay an amount that exceeded her expected alimony payment. Similarly, a more generous alimony payment has been awarded in situations where the receiving party’s ability to work was compromised due to a physical illness.[7]

Courts have also been known to decrease or eliminate alimony obligations if the party making the payments is experiencing health issues. Where the health of a paying party results in a significate financial hardship, courts have found this to be a material change in circumstances.[8] The court will consider how the parties health affects their ability to work and subsequently their inability to continue making the payments.[9] After evaluating the status of the party’s health coupled with other significant factors, the court may decrease the payments or terminate them altogether.[10] Ultimately, it is up to the courts discretion to determine if the health of either party results in a material change in circumstances that should result in a modification of alimony.

If you need more information about the Massachusetts alimony law or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Ann. Laws ch. 208, § 37 (discussing situations where a revision of judgement of alimony would occur).

[2] Bercume v. Bercume, 428 Mass. 635, 704 N.E.2d 177 (1999) citing Schuler v. Schuler, 382 Mass. 366, 416 N.E.2d 197 (1981) (laying out the standard for material change in circumstance).

[3] Id.

[4] Mass. Ann. Laws ch. 208, § 53

[5] Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 22 N.E.3d 951 (2014) (showing an example of a time the court did not abuse their discretion when modifying alimony due to mental illness)

[6] Moran v. Moran, 612 A.2d 26 (R.I. 1992) (showing a situation where a mental illness affected a parties ability to earn income.).

[7] Hogan v. Hogan, 822 A.2d 925 (R.I. 2003) (describing a situation where wife suffered from multiple sclerosis, compromising her ability to work).

[8] Parrett v. Parrett, Conn. Super. (Super. Ct. Oct. 14, 2009).

[9] ARTICLE: Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal Support, 46 Suffolk U. L. Rev. 13 citing Parrett v. Parrett, No. FA780159581S, 2009 Conn. Super. LEXIS 2855 (Super. Ct. Oct. 14, 2009) (After a 30 year alimony obligation, the obligor obligation to pay alimony ended due to hi a showing of his severe health problems).

[10] Id. at 7