In Massachusetts family law in general, the importance of equity and fairness is of utmost concern. The court, when reviewing prenuptial agreements, will seek to ensure that the agreement is fair and reasonable and that its enforcement does not go against countervailing equities.
The Agreement Must Be Fair and Reasonable at the Time of Signing
In one case, the court chose to invalidate the agreement in part due to its lack of fairness. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). The court stated, quoting the trial judge:
“[the father] had over $7.5 [m]illion in equity when the agreement was signed and [the mother] had $2[,]500.00 in equity. The provision for [the mother] to receive, upon a divorce, a lump s[um] payment of alimony at the rate [of] $5,000.00 for each full year of marriage is well below fair. When her lawyer tried to negotiate it up a little, [the father] said no. He negotiated himself out of a fair agreement. The property division agreement is also unfair when viewed from the date of signing. The agreement gives the wife one-half of the increase in the equity, if any, in the marital home from the date of the agreement less mortgages and encumbrances. If the parties lived in a rental home or an apartment the wife would receive no assets. If the equity in the home did not go up, the wife would receive no assets. If the husband chose to encumber the home to the maximum extent possible, the wife would receive no assets.” Schechter, at 259.
Of particular importance to this issue is the 2009 case of DeMatteo v. DeMatteo, in which the Supreme Judicial Court enforced an antenuptial agreement which had been contested by the wife during the divorce. DeMatteo v. DeMatteo, 436 Mass. 18 (2002). In that case, the husband (whose net worth was between $108-$133 million) presented the wife with an antenuptial agreement, providing full written disclosure of his assets, including tax returns. Both parties retained counsel, and negotiations followed.
The agreement, drafted by the husband’s attorney, provided that in the event of a divorce, the wife would receive the marital home free of encumbrance, the automobile that she was then driving, and an annual payment from the husband of $25,000 until her death or remarriage. The wife initially rejected the agreement and asked for the husband to increase the annual payments to the wife to $35,000, adjusted annually for increases in the cost of living. She also asked for medical insurance, life insurance, and the lesser of twenty per cent of the husband’s estate or $5 million. Upon further negotiations, the wife dropped that last demand, but the annual payments were increased to $35,000 and medical insurance was also provided for the wife in the final antenuptial agreement.
The high court in DeMatteo spent particular effort on discussing the requirement of “fair and reasonable” in antenuptial agreements. The court explained this requirement as follows:
To meet the requirement of “fair and reasonable,” at the time of execution an antenuptial agreement need not approximate an alimony award and property division ruling a judge would be required to make under G.L. c. 208, § 34. Judged by those statutory requirements, the parties’ right to settle their assets as they wish would be meaningless. The relinquishment of claims to the existing assets of a future spouse, even if those assets are substantial, also does not necessarily render an antenuptial agreement invalid. An antenuptial agreement may be most desired when a wealthy individual contemplating marriage seeks to ensure that, if the marriage is not successful, his or her own assets will not accrue to the spouse. Many valid agreements may be one sided, and a contesting party may have considerably fewer assets and enjoy a far different lifestyle after divorce than he or she may enjoy during the marriage. It is only where the contesting party is essentially stripped of substantially all marital interests that a judge may determine that an antenuptial agreement is not “fair and reasonable” and therefore not valid. DeMatteo, at 31.
The Agreement Must Also Be Fair and Reasonable at the Time of Divorce
In addition to the validity of the agreement, the court will also consider whether the agreement is enforceable at the time of divorce.
The seminal recent case on this doctrine is DeMatteo v. DeMatteo, in which the trial court invalidated an antenuptial agreement signed by the parties. The Supreme Judicial Court ultimately reversed, holding that the agreement was both valid at the time of execution and enforceable at the time of the divorce. In a very important paragraph regarding antenuptial agreements and their enforcement, the high court also clarified the meaning and application of the Second Look Doctrine in Massachusetts as follows:
“In Massachusetts, a valid antenuptial agreement is not unenforceable at the time of divorce merely because its enforcement results in property division or an award of support that a judge might not order under G.L. c. 208, § 34, or because it is one sided. Moreover, it is not appropriate for a judge to use the same test of enforceability of an antenuptial agreement as she would for the enforceability of a separation agreement, for the reasons explained earlier. Rather, we follow the majority of courts and require that a judge may not relieve the parties from the provisions of a valid agreement unless, due to circumstances occurring during the course of the marriage, enforcement of the agreement would leave the contesting spouse “without sufficient property, maintenance, or appropriate employment to support” herself. ..Such circumstances might include, for example, the unanticipated mental or physical deterioration of the contesting party (here the antenuptial agreement provided for full health insurance for the wife), or the erosion by inflation of agreed-on support payments to such a degree as to nullify the obvious intention of the parties at the time of the agreement’s execution (here the support payments agreed to by the parties contained an adjustment for cost of living, which the wife does not claim is inadequate). The “second look” at an agreement is to ensure that the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution.” DeMatteo, at 36-37.
In a subsequent case, however, the appeals court upheld a trial court’s invalidation of the antenuptial agreement based on the Second Look Doctrine, as enforcing the agreement would have left the wife with negative equity in the marital home. Kelcourse v. Kelcourse, 87 Mass.App.Ct. 33 (2015). In that case, the husband had considerable assets, including a commercial marina, while the wife had no appreciable assets at the time of signing. The agreement provided for each party to retain his or her assets, and it provided for the wife to take the marital home in the case of a divorce. During the marriage, the parties bought a fixer-upper home together, which they inhabited as their principal residence, and which the husband intended to renovate. By the time of the divorce, the property had further deteriorated, and the husband had moved out.
The court noted, quoting DeMatteo:
“A “second look” at the agreement during divorce proceedings ensures that it “has the same vitality at the time of the divorce that the parties intended at the time of [the agreement’s] execution.” … A prenuptial agreement will not be enforced if enforcement, “due to circumstances occurring during the course of the marriage, … would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.” Ibid., quoting from 1 H.H. Clark, Jr., Domestic Relations in the United States § 1.9 (2d ed. 1987). The Probate and Family Court judge found that the prenuptial agreement was valid when entered into by the parties, but upon taking a second look, the judge found that it could not be enforced. She determined that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated when they executed the agreement, and that enforcement of the agreement would be unconscionable.” Kelcourse, at 35.
In a recent case, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.
In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. She had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.
The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.
Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2
In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.
In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.
At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare.
The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.
The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3
The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.
“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”
1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).
2 Id., at 4.
3 Id., at 8.
One of the most distressing and devastating challenges to any marriage is the challenge of adultery. Though some marriages survive the stressful impact of one spouse’s unfaithfulness, others simply cannot.
Adultery is defined by Black’s Law Dictionary as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” For good reason, adultery is a fault ground for divorce in many states, including Massachusetts.
Adultery is also considered a crime in Massachusetts. The relevant criminal statute reads, “A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” 1
The case of Commonwealth v. Stowell upheld the constitutionality of the criminal adultery statute in Massachusetts. 2 In that case, the defendant was convicted of adultery after being arrested for having sexual intercourse with a man who was not her husband. On appeal, she alleged that the adultery statute violated the Constitution’s fundamental right to privacy, but the Supreme Judicial Court disagreed. While the Court noted its awareness that adultery is rarely prosecuted as a crime, it also noted that did not mean the statute was invalid or judicially unenforceable.
In terms of divorce actions, some specific procedural considerations apply when a party pleads adultery as a fault ground. First, adultery must be specifically pleaded in the Complaint. Second, circumstantial evidence may be used to prove adultery. In one case, for example, the husband observed another man leave the husband’s home on several occasions while the wife was home, and on one of those occasions, the wife wore a kimono and slippers. The court allowed the case to proceed on the basis of adultery. 3
It should be noted, however, that pure speculation is not enough to prove allegations of adultery. In one case, for example, the court found that simply having ample opportunity to engage in adultery, by way of a husband’s many visits with another woman, did not establish that adultery occurred. 4 “The fact that the parties had ample opportunity to commit adultery is not, of itself, grounds for divorce,” the Court noted. “There must be some evidence of speech or conduct indicating an adulterous disposition.” 5
Another issue to discuss is that of condonation. If a spouse forgives a party who engaged in an adulterous relationship and continues to live together as a married couple, he or she is will not be able to plead adultery as a ground for divorce. This is provided that the spouse has full knowledge of the adulterous behavior, and that the behavior is not repeated after condonation.
1 Mass. Gen. Laws ch. 272, s. 14
2 Commonwealth v. Stowell, 389 Mass. 171 (1983).
3 Murphy v. Murphy, 244 Mass. 110 (1923).
4 DiRosa v. DiRosa, 350 Mass. 765 (1966).
5 Id., at 765.
As we discussed in a previous post, the 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, make significant changes from the 2013 Guidelines in how parenting time affects a child support order, how health/vision/dental insurance is accounted for in setting a child support order, how child support is calculated for a child between the ages of eighteen and twenty-three, and how a court addresses the issue of contribution towards college.
In this post, we examine some of the other changes and clarifications, that for many individuals will have a significant impact on their child support orders in the future.
Minimum Level of Child Support
The 2017 Guidelines, for the first time since 2002, increased the minimum child support order from $18.46 to $25 per week. The Task Force cited economic data and the increase in the cost of living in Massachusetts since that time.
Interaction between Alimony and Child Support
The 2017 Guidelines explain that the Alimony Reform Act of 2012 “prohibits the use of gross income which the Court has already considered in making a child support order from being used again in determining an alimony order.” G.L. c. 208, § 53(c)(2). In the commentary, the Task Force points out that “the converse is not stated in the statute.” In other words, the Alimony Reform Act of 2012 prohibits income that has already been used to calculate child support to then be used in calculating alimony, but does not prohibit alimony from being calculated first, and then calculating child support.
The commentary did not provide any direction, except to say that there were no appellate cases on point for this specific issue, and while they wished to provide more instruction, they were not recommending any changes.
The 2017 Guidelines did maintain language from the 2013 Guidelines that encouraged, when appropriate, parents to take advantage of the tax implications of alimony and child support, and to make a combined order when appropriate.
Attribution of Income
The 2017 Guidelines changed some of the factors in attributing income to an individual who is capable of earning more than he or she is currently earning to assign a hypothetical amount of income for the purpose of calculating child support. The 2013 Guidelines language that a “Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level” has been changed in the 2017 Guidelines so that a “Court shall … consider the specific circumstances of the parent, to the extent known and presented to the Court, including, but not limited to, the assets, residence, education, training, job skills, literacy, criminal record and other employment barriers, age, health, past employment and earnings history, as well as the parent’s record of seeking work, and the availability of employment at the attributed income level, the availability of employers willing to hire the parent, and the relevant prevailing earnings level in the local community.”
The considerations specific to the children in attributing income to a parent remain unchanged from 2013 to 2017 (“the age, number, needs and care of the children covered by this order”).
Self-Employment and Other Business Income
The 2017 Guidelines clarified some of the issues with self-employed individuals and how to handle their income which might be written off for tax purposes, but further in the commentary provided a number of appellate cases on the issue of self-employment and rental income.
Structure of Guidelines
While the structure of how the Massachusetts Child Support Guidelines are written does not change any factor for consideration, the 2017 Guidelines, the Task Force took the opportunity to include commentary in the Guidelines themselves. The commentary highlights changes from the previous guidelines, often explaining their rationale for their changes. This commentary will provide judges, attorneys, and parents with more guidance in coming to a child support order, and this author applauds the Task Force for the transparency of explaining why changes were made, or why changes were not made.
Generally, in order for an antenuptial agreement (also known as 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.
One of these important requirements for antenuptial agreement to be valid is the ability of both parties to consult with independent counsel. In particular where one party asks the other to sign the agreement before marriage, the courts will scrutinize the circumstances surrounding the signing to ensure that each party had a meaningful opportunity to consult with his or her own counsel.
In one unpublished appellate case, the court invalidated a prenuptial agreement on this basis, where the wife was from Brazil and spoke limited English. Allen v. Allen, 90 Mass. App. Ct. 1101 (2016). In that case, the husband’s attorney drafted the agreement. The wife visited a Portuguese-speaking attorney who translated the agreement and read it to her out loud; however, that attorney gave the wife no legal advice. The appeals court, agreeing with the trial judge, found that the wife did not have adequate opportunity to consult with counsel:
“As the judge observed, ‘Even if Attorney Kesselman explained the terms of the Agreement to the parties when he met with them, he represented only Husband. Wife’s admission to Attorney Guerreiro that another attorney already had explained the Agreement to her does not change that. Attorney Kesselman could not give legal advice to Wife about the consequences of the Agreement to her. Attorney Guerreiro did not represent Wife and did not give any legal advice to her about the Agreement.’ Contrary to the statement in the premarital agreement that the parties each “had independent legal counsel of his and her own choosing prior to their execution” of the agreement, Maria was unrepresented.” Allen, at 2.
In another case, the judge’s decision to invalidate the prenuptial agreement was also partially based on a lack of meaningful opportunity to consult with counsel. The court in that case noted:
“Although each party was represented by counsel, the evidence supports the judge’s finding that the negotiation was brief and one-sided. The mother first met with her attorney on October 31, 2002. In mid-November, the mother’s attorney sent a series of draft proposals to be included in the agreement to the father’s attorney. The father rejected the proposed terms and on December 16, 2002, the father’s attorney sent the father’s terms by electronic mail to the mother’s attorney with a message that due to the wedding scheduled for the following week the father “would like to sign this tomorrow as relatives are arriving on Wednesday and … schedules will be quite hectic after that.” Although the mother’s lawyer informed the father’s lawyer that the father “ha[d] to put something on the table” in light of the enormous disparity in the assets of the parties, the father did not alter his position. The mother agreed to the terms of the proposed agreement.” Schechter v. Schechter, 88 Mass. App. Ct. 239, at 256-257 (2015).
It is important to note that actual consultation with an attorney is not required in order for an antenuptial agreement to be valid; it is only the opportunity to consult with counsel which is required.
Every four years, the Massachusetts child support guidelines task force assesses the child support guidelines, makes recommended changes, collects comments from the public, revises further, and then presents them to the Chief Justice of the Trial Court, who signs them into application on a date certain. This process has just completed, with the new 2017 Massachusetts Child Support Guidelines going into effect on September 15, 2017. We’ve dived in since they were released yesterday, and here is our initial commentary, with links to the guidelines and supporting materials on mass.gov.
The 2017 Massachusetts Child Support Guidelines & Parenting Time
The 2013 Massachusetts Child Support Guidelines had introduced, for the first time, an intermediate calculation for child support, to be used in circumstances where the “parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%.” This intermediate calculation averaged the base child support guidelines calculation as if one parent was with the child or children approximately two-thirds of the time, with the calculation if the child or children spent approximately equal time with both parents.
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, eliminates that intermediate calculation, and in its commentary, explains why in somewhat scathing terms: “The Task Force agreed that the provision relating to these circumstances needed to be eliminated. The Task Force considered public comment, attorney and judicial experience, the 2008 Report of the Child Support Guidelines Task Force, and the Final Report of the 2012 Task Force when making this determination. The 2012 change [to create the intermediate calculation] increased litigation and acrimony between parents, shifted the focus from a parenting plan that is in the best interests of the children to a contest about a parenting plan that attempts to reduce a child support order, and failed to create the consistency in child support orders that it sought to create.” (emphasis added).
The 2017 Guidelines leave two methods through which child support should be calculated: 1. Basic Calculation – the basic calculation presumes that the children have a primary residence with one parent and are spending approximately one-third of the time with the other parent. There is a rebuttable presumption that the child support calculation should be the child support order. 2. Cross Guidelines – “[w]here two parents expect to or do share equally, or approximately equally, the financial responsibility and parenting time for the children, the child support order shall be determined by calculating the guidelines worksheet twice, first with one parent as the recipient, and second with the other parent as the recipient.” In short, calculate child support both ways, and the difference is the presumed child support order.
Of note is the retention of the consideration of the financial responsibility in the cross guidelines calculation, and not in the basic calculation. Further, the 2017 Guidelines places an increased emphasis on the ability of a court to deviate from the Guidelines. The amount that the Guidelines calculates is still the presumed order, but the Task Force seemed to place additional emphasis on the ability to deviate from that figure if it is in the best interests of the child.
The 2017 Massachusetts Child Support Guidelines & Proportional Sharing of Child Care, Health/Vision/Dental Insurance Costs
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, adopts the historical approach in deducting the costs of child care, health insurance, dental insurance, and vision insurance from a parent’s available income for purposes of calculating child support. The Task Force then added a second step, so that parents are sharing, at least somewhat in proportion to their respective incomes, these costs.
Let’s say that that Pat and Dana have one child. Pat is the primary wage-earner, and earns, $2,000 per week. Pat’s employer-provided health and dental insurance costs $100 per week. Dana earns $1,000 per week. The child lives primarily with Dana, spending approximately one-third of the time with Pat. Under the 2013 Guidelines, Pat’s presumed child support payment to Dana is $362 per week. Under the 2017 Guidelines, Pat’s presumed child support payment to Dana, which adjusts twice for Pat’s contributions towards health insurance and dental insurance (as well as vision insurance and child care costs), would be $325.
When the payor is providing for the cost of health insurance, dental insurance, vision insurance, and/or the cost of child care, it would be beneficial for him or her to speak with an attorney to discuss whether it is advisable to modify his or her child support obligation.
The 2017 Massachusetts Child Support Guidelines & Children between the Ages of 18 and 23, and Contribution towards the Cost of College
In addressing the payment of child support for children that are over the age of eighteen and have graduated from high school, the 2013 Massachusetts Child Support Guidelines instructed that a “Court shall exercise its discretion in ordering support and/or college contribution. The Court shall consider the reason for continued residence with and dependence on the Recipient [of child support], the child’s academic circumstances, living situation, the available resources of the parents, the costs of post-secondary education for the child, the availability of financial aid and the allocation of these costs, if any, between the parents. Contribution to college costs is not presumptive, but is based upon the above factors. If a specific college contribution is ordered, this contribution shall be considered by the Court in setting the weekly support order, if any.”
The 2017 Massachusetts Child Support Guidelines, effective September 15, 2017, provides more guidance for parents, judges, and attorneys, in how to address the issue of children that have graduated from high school but are not yet emancipated for purposes of a child support order, or an order for a parent or parents to contribute towards the cost of that child’s college education. The 2017 Guidelines differentiates between children under 18 and children over 18 in the formula itself. Table B, which is used for adjusting the formula on the number of children in the family, has transformed from two columns to five: Table B in the 2013 Guidelines Table B in the 2017 Guidelines The result is a 25% adjustment downward for children over the age of 18.
As explained in the Commentary to the 2017 Guidelines, this considers the possibility that children of that age group might not be living full-time at a parent’s residence if living at a post-secondary educational institution, and have the ability to work and contribute towards household expenses. The 2017 Guidelines explains that courts retain discretion in awarding child support for children between the ages of eighteen and twenty-three. The 2017 Guidelines also eliminate as factors for consideration in setting an order for a child over the age of 18 “the costs of post-secondary education for the child,” and “the availability of financial aid and the allocation of these costs, if any, between the parents.”
On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college. The Guidelines establishes a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.” Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.
Read more information about additional changes and considerations in the 2017 Guidelines in our follow-up blog post.
Is the retroactive modification of child support payments a possibility in Massachusetts?
Say, for example, that a payor party’s income increases. The receiving party does not file for modification right away–perhaps because she does not know of the increase in income. Once she does file, may the Court increase the payments retroactively, going back to the date that the payor party’s income changed?
In an interesting recent case, the Massachusetts Appeals Court held that retroactive modification of child support was valid. Specifically, where the parties agreed in their separation agreement that future modifications of support are retroactive to date of change of income, the court has the jurisdiction to modify retroactively to that date. This is true even when the date predates the filing of the complaint for modification. 1
In the case, Calabria v. Calabria, the parties were divorced in 2010. The husband was ordered to pay $416 semimonthly in child support. In their separation agreement, the parties agreed that in the event of a change in income or employment, they would immediately notify the other party, seek modification, and modification would be retroactive to the change of employment or salary date.
In 2013, the wife filed a complaint for contempt, claiming among other things that the husband failed to notify her of a change in his income. As the parties exchanged financial information during that proceeding, the wife found out that the husband was consistently making more by 2012 than he did at the time of divorce. She filed a complaint for modification.
The trial judge applied the Massachusetts Child Support Guidelines dating back to the time period of 2011, 2012, and 2013, and computed a deficit of $9,264 for the prior years. The husband appealed, claiming that the judge was without authority to make any increase retroactive to a date earlier than the date of the complaint for modification. The Appeals Court disagreed.
The court specified two circumstances in this case which particularly allowed for this decision. First, the parties had specifically provided for retroactive adjustment of child support in their separation agreement. Second, the adjustment fostered the best interests of the parties’ child and did not derogate from the purposes of the law on modifications of child support.
“Here, we are presented with a modification judgment that gives effect to a predivorce agreement of the parties concerning retroactive adjustment of child support and that results in an increase rather than a decrease in child support during the period preceding the complaint for modification,” the Court explained. “In such circumstances, the objective of [the law] to furnish finality and clarity to orders for child support in order to facilitate prosecution of an enforcement action based on the support order is not impaired by the possibility that the support obligor might assert claimed defenses to payment.” 2
1 Calabria v. Calabria, No. 16-P-1397, May 31, 2017 – July 13, 2017.
2 Id., at 5.
A touchy subject to discuss, but one which becomes an issue from time to time, is the subject of impotence as grounds for divorce. In Massachusetts, a spouse may choose to request either an annulment or a fault-based divorce on the grounds of the other party’s impotence. Choosing to file for divorce means the spouse may request the division of marital property in line with the applicable domestic relations statutes.
According to Black’s Law Dictionary, impotence means “the incapacity for copulation or propagating the species,” for purposes of medical jurisprudence. It is important to discuss here that impotence does not mean infertility for purposes of family law and divorce. Infertility, referring to an inability to conceive a child, is not a ground for a fault-based divorce in Massachusetts. However, impotence, referring to an inability to copulate, is grounds for divorce or annulment.
Only a few (generally older) cases have addressed the issue of impotence as fault grounds for divorce in Massachusetts. The cases typically deal with issues of impotence which exist at the time of marriage, and not issues which develop later in the marriage.
In one case, the husband filed for divorce based on impotency where sexual intercourse was impossible without causing the wife such pain as to endanger her health. 1 In that case, after the parties lived together for nearly seven years, a physician advised them to separate. The husband’s request for a divorce was granted. In another case, the husband was likewise granted a divorce where, unbeknownst to him, the wife suffered from congenital physical abnormalities which prevented her from engaging in sexual intercourse. 2
If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
1 S. v. S., 192 Mass. 194 (1906).
2 M. v. M., 342 Mass. 773 (1961).
In 2011, the Massachusetts Legislature passed the Alimony Reform Act, making significant changes to laws concerning alimony in the Commonwealth. Among those changes were durational limits imposed on alimony obligations from marriages that lasted fewer than twenty years.
In essence, those durational limits act as presumptive termination dates for alimony payments. For example, in the case of a four-year marriage, alimony may terminate after two years of payments upon divorce. Under some circumstances, a party may request that the court deviate from the prescribed termination date, where deviation is required in the interests of justice.
But are those durational requirements constitutional?
In two recent cases, the Massachusetts Supreme Judicial Court considered whether the durational limits operate as an unconstitutionally retroactive law. The Court held that the durational limits were in fact constitutional.
In Van Arsdale v. Van Arsdale, the Court considered a direct appeal where the husband’s alimony obligation was terminated. 1 The parties married in 1979 and divorced in 1997. The husband was ordered to pay $3,333 per month in child support and $3,333 per month in alimony. The parties agreed to review the husband’s alimony payment obligations when their youngest child became emancipated and when the husband retired from full-time employment, so long as he was at least 62 years old.
In 2005, the husband filed a complaint for modification, as the parties’ youngest child had become emancipated. The parties agreed to discontinue child support payments and increase alimony payments to over $7,500 per month. In 2015, the husband successfully sought to terminate his alimony obligation based on the fact that he retired, and based on the Alimony Reform Act’s durational limits. The wife appealed.
In reviewing the wife’s argument that the durational limits were unconstitutionally retroactive, the Supreme Judicial Court considered whether the law attached new legal consequences to events that were completed before the law’s enactment. “The durational limits merely create a presumption of termination that a recipient spouse…can rebut by showing that deviation from the limits is ‘required in the interests of justice.’ Applying such a presumption is not impermissibly retroactive,” the Court noted. 2
The Court reasoned that a party may argue for a deviation from the durational limits, which would require the trial judge to consider the parties’ circumstances at the time of filing, and not at the time of divorce. “By requiring such a temporal focus, the statute ensures that any new legal consequences that result from the durational limits are not the result of actions that predated the act, but rather are based on the circumstances of the parties as they exist before the judge deciding a modification complaint,” the Court explained, upholding the durational limits. 3
Following its decision in Van Arsdale, the Court decided the case of Popp v. Popp. 4 In that case, the husband was ordered to pay $12,000 per month in alimony. In 2015, the husband sought and received a modification of those payments, as he had retired. The judge also applied the new alimony durational limits and ruled that payments would cease in 2020, based on the length of the parties’ marriage.
Similarly to the Van Arsdale case, the wife in Popp claimed that the durational limits on alimony payments were unconstitutional; she also claimed that the trial judge failed to consider certain factors, such as her ability to maintain marital lifestyle and her lost economic opportunity as a result of the marriage. In line with the Van Arsdale decision, the Supreme Judicial Court held that the durational limits were not unconstitutional and upheld the trial court’s decision.
If you have any questions about domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
1 Van Arsdale v. Van Arsdale, SJC 1-2223, March 6, 2017. – May 31, 2017.
2 Id., at 8.
3 Id., at 9.
4 Popp v. Popp, SJC 1-2228, May 31, 2017.
May a party recover damages from a former romantic partner with whom the party cohabited, where the party contributed significantly to the improvement of the common home? Say, for example, that two people live together but never marry. One of them happens to be in the home improvement business. As the years pass, that party performs significant home repairs and improvements, paying for materials out of his pocket. When the parties break up, may that party recover for the amount of money and work he put into the home—which is staying with the other half of the couple, who happens to be the title owner?
The Massachusetts Appeals Court recently decided a case which dealt with this issue. Bonina v. Sheppard involved a long-term cohabiting relationship, where the parties never married. 1 The plaintiff was a contractor, and he expended significant funds, resources, and labor on fixing up the home, which was owned solely by the defendant. After the relationship ended, the plaintiff brought suit against the defendant, claiming that she was unjustly enriched by his contributions to the home’s improvement. The trial court ruled that the plaintiff could recover damages in the amount of over $156,000, and the defendant appealed.
The Appeals Court explained that unjust enrichment occurs “where a party retains the property of another ‘against the fundamental principles of justice or equity and good conscience.’” 2 The Court first shot down the defendant’s assertion that she could not have been unjustly enriched, because the parties were in a romantic relationship. “The parties’ romantic relationship does not prevent the plaintiff from recovering from the defendant under an unjust enrichment theory,” the Court explained. “In Massachusetts, there is no presumption that a claimant’s contributions during a romantic relationship are gratuitous.” 3
The Court also agreed with the trial judge in finding that the plaintiff’s contributions were not meant to be gifts. Instead, the court sided with the defendant’s argument that he believed the couple would eventually jointly increase the value of the home, and then jointly buy a bigger home. The plaintiff could recover damages under a restitution theory, the Court noted.
Next, the Court discussed whether the trial judge’s arrival at the damages amount was properly calculated. The Court recognized that the way to measure restitution damages is by reviewing not the defendant’s gains, rather than the plaintiff’s losses. However, the Court noted, the plaintiff’s costs may be used as evidence of and relevant to the value of the benefit the defendant received.
“The correlation of costs with benefits is especially valid where, as here, the costs that the plaintiff incurred were for construction materials and fixtures for the defendant’s home. In these circumstances, there is a direct dollar-for-dollar correlation between the costs incurred by the plaintiff and the benefit conferred on the defendant,” the Court explained. “Moreover, in the present case, neither the plaintiff nor the defendant presented evidence regarding other possible measures of unjust enrichment, such as the increased value of the home resulting from the materials and the services. As such, the trial judge had no other reliable, measurable basis on which to calculate the award.” 4 The Appeals Court affirmed the trial court’s award of damages.
If you have any questions about domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
1 Bonina v. Sheppard, No. 16-P-771 (March 2, 2017-June 1, 2017).
2 Id., at 6.
4. Id., at 11.