A Part-time Job and Its Effect on Alimony or Child Support

In what ways might a part-time job or second job affect alimony or child support payments?

Under Massachusetts divorce law, a spousal support award is not set in stone. Rather, it may be altered by a petition for modification to the court initiated by either party. To prevail, the petitioner must demonstrate that an adjustment of the alimony judgment is warranted because of a material change of circumstances since the earlier judgment was entered.

Likewise, a court may modify an earlier judgment regarding the care and custody of minor children if it determines a material and substantial change in the parties’ circumstances has occurred requiring an adjustment that would be in the children’s best interests. As noted in Section III. (A.) of the 2017 Massachusetts Child Support Guidelines, among the occurrences that justify modifying a child support order are:

  • An inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines;
  • previously ordered health care coverage is no longer available;
  • previously ordered health care coverage is still available but no longer at a reasonable cost or without an undue hardship; and
  • access to health care coverage not previously available to a parent has become available.

Concerning both alimony and child support, a common basis for complaints for modification brought by one party involves the other party either taking on a second job to supplement his or her main income or accepting a part-time position.

In ordering one of the parties in a divorce to pay alimony to the other in the first instance, the court weighs numerous factors, including the length of the marriage, the parties’ age and health, their employability and the sources and amounts of income. To arrive at the parties’ incomes concerning an alimony award, a judge may attribute income to a party who is unemployed or underemployed.

In a spousal support modification action, any income earned by the party paying alimony from a part-time job, second job or through overtime is presumed not to be material to a redetermination of alimony, so long as the party is working more than a “single full-time equivalent position,” and the second job or overtime pay began after the initial spousal support award was entered.

In one case, the former wife appealed her court-ordered rehabilitative alimony payments to her ex-husband. The Appeals Court found the probate court judge had not abused his discretion in making the award, but had erred in determining her ability to pay the amount of spousal support by considering her income both from her full-time position and a part-time job she took on after the judgment of divorce had entered. The appellate court vacated the alimony award and remanded the case to the trial judge. The court held that a party working full-time cannot be considered “underemployed” based on the pay level from a post-judgment second job unless a judge finds supporting evidence that “a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.”

The 2017 Massachusetts Child Support Guidelines allow a court considering the best interests of the children to weigh “none, some, or all overtime income or income from a secondary job” from the calculation of gross income for child support purposes. A presumption exists that any part-time job, overtime pay or second-job income not be considered in a future child support order if the payor or recipient parent began receiving such income after the initial child support order was entered.

If you have any questions about alimony, child support, or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Parental Kidnapping

Approximately 800,000 children annually are reported missing, according to U.S. Department of Justice statistics—a staggering 2,000 minors daily on average. Family members account for 203,000, more than a quarter, of these child abductions, the National Center for Missing and Exploited Children (“NCMEC”) claims. In 78 percent of child kidnappings, the offender was the noncustodial parent, according to the National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children (“NISMART”).

Among the reasons cited by parents for violating the custody or visitation rights of their mates by abducting their children are to punish the non-offending parent or to compel reconciliation with the estranged parent. Fear of losing custody or visitation rights, and, in rare instances, shielding the minor from an alleged neglectful or physically or sexually abusive parent, are other reasons underlying parental kidnapping.

Under Massachusetts law, a minor’s relative who takes a child from his or her custodian without lawful authority and intends to hold the youth “permanently or for a protracted period,” is subject to a maximum one year in prison, a thousand-dollar fine, or both. Unlawfully removing the child from the Commonwealth and exposing the minor to danger is punishable by up to a $5,000 fine and a maximum five-year prison term.

Often, an accused parental kidnapper also faces a charge of violating a restraining order. Violation of such an order could result in a maximum fine of $5,000 and up to two-and-a-half years in prison.

Criminal liability against a parent as outlined above pre-supposes an existing court-issued custody order concerning the parents’ children. In a 1989 case, a woman took her five- and three-year-old sons from their Massachusetts home and relocated to Puerto Rico ten days before her estranged husband obtained a temporary custody order, unbeknownst to her.

The mother was arrested for parental kidnapping. The Supreme Judicial Court acknowledged the presumption under Massachusetts law that both parents have equal custodial rights of their children. The Court concluded that a parent who takes his or her children from the other parent before any court proceeding has generated a custody order is not acting “without lawful authority” as defined by the Commonwealth’s statute, and cannot be convicted of parental kidnapping.

At the national level, the Federal Parental Kidnapping Prevention Act requires every state’s appropriate authorities to enforce and not modify (with certain exceptions) any child custody determination made by another state’s court. This full faith and credit provision means that if another state having jurisdiction over a child custody question has pending custody proceedings outside the Commonwealth, a Massachusetts judge, for example, cannot issue a custody order in a non-emergency care and protection hearing involving the same minor without running afoul of the federal Act. The federal statute prevents two states from concurrently assuming jurisdiction over the same custody matter. It considers the resident state of the child or either parent to be the proper forum to resolve the dispute.

Unfortunately, sometimes—especially in particularly contentious divorce proceedings—family lawyers confront false kidnapping claims. Sometimes, these are brought by a vengeful custodial parent against a defendant parent during the latter’s designated visitation period when a child is returned late to the custodial parent. In such instances, experienced divorce counsel can refute spurious accusations through proof that unforeseen circumstances, such as traffic congestion, a delayed or cancelled flight or unexpected injury or illness caused the visitation to exceed the allotted time.

In other cases, noncustodial parents, fearful that their children are targets of physical or mental abuse by the custodial parent, may not return the child after a scheduled visit. When such unilateral action is taken, experienced divorce attorneys will seek relief from the probate court by arguing that the noncustodial parent was acting in the best interest of the child by protecting the youth from an unsafe home environment.

Under Massachusetts law, either spouse in a pending divorce action may petition the Probate and Family Court to issue an order to prohibit the other spouse from imposing any restraint on the personal liberty of the petitioner or his or her minor children during the pendency of the divorce proceedings. Likewise, by statute, a minor over whom a Massachusetts probate court has jurisdiction, either because the child was born, or has resided for at least five years, in the Commonwealth, cannot be removed from Massachusetts without the child’s consent, if he or she is of “suitable age” to give it. If the child is too young to consent, the child cannot be removed without the approval of both parents, unless the Court, upon cause shown, otherwise orders.

If you have any questions about child custody or support or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

 

 

 

 

 

What constitutes marital property in Massachusetts?

Marital property is distributed in Massachusetts divorce cases under the “equitable distribution” standard. Unlike some other states with “community property laws,” Massachusetts courts divide marital property by in an equitable, or fair, manner.

In Massachusetts, marital property includes all items, interests, and possessions attained by a couple during their marriage. Martial property in Massachusetts is not considered to be property that is acquired by any party before the marriage began. Property that was acquired before the marriage began is typically considered to be separate property that is not divisible by the court.

Separate property

Under some circumstances, it is possible that separate property may be considered to be marital property. Take, for example, a long-term marriage where the parties’ separate property is quite imbalanced: one spouse entered the marriage with considerable assets, while the other had few assets at the time. The parties may have become accustomed to a certain standard of living during their marriage, and the judge may consider some separate property (acquired prior to the marriage) to be marital property, in the interests of fair and equitable division. This consideration is dependent on the facts and circumstances of each individual divorce case. It is important to speak with a competent divorce attorney about this issue of marital and separate property, as this may impact your individual case.

Division by agreement

Parties in a marriage may decide that they want to divide their property on their one. This is done by agreeing on which property to divide. Once an agreement is made, it is written down as a “property settlement agreement.” With the agreement to divide property, parties submit the agreement to a Massachusetts Probate and Family Court. The judge then considers the agreement in the final divorce order. A judge would likely support a fair and reasonable distribution of their assets.

Equitable distribution

If the parties cannot agree about the division of their property on their own, the parties’ property is divided by a Massachusetts Family Court on an equitable basis. Equitable does not necessarily mean equal. Equitable uses several factors to determine the fair division of assets. These factors include: length of the marriage; conduct of the parties during the marriage; age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties; opportunity of each for future acquisition of capital assets and income; amount and duration of alimony; present and future needs of dependent children of the marriage; and contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.

Types of marital property

Property in a divorce could be any of the following: house(s) and real estate, car(s), furniture, art, jewelry, bank accounts, bonds, boats, policies, plans, pensions, stock options, accounts, coin or collections, wine collections, and more. While Massachusetts considers companion and other animals to be property, judges in Massachusetts may look to see the party who is the primary handler of the animal. There is a growing trend in other states that companion animals will be awarded to a party based upon what is best for the animal. This standard is not yet in Massachusetts, so dogs and cats, and other animals, are considered to be property as well.

There are some other assets that a party in a divorce may be entitled to: stock retirement accounts (401K and pension plans), deferred compensation plans from previous employers, capital losses from previous tax years, cemetery plans or plots, all collections with value, memberships to clubs, gifts, intellectual property such as trademarks, patents, copyrights, and royalty rights, lottery tickets, loans, travel rewards, and more.

If a party owns a business, it is also important to speak with a Massachusetts divorce lawyer about the ways that business ownership may impact the distribution of property in a divorce, especially as business gains are managed and salaries are paid.

To provide an example: Billy and Jean decide to divorce. Billy, a musician, owns an upcoming music label, which he created after is married Jean. Billy also owns the rights to several of his original songs that he recorded on his label. Billy and Jean have a joint bank account that they opened prior to their marriage, but that they regularly used during their 5-year marriage. The couple has a house, no kids, and Jean does not work. They each have a vehicle, but Billy’s car is worth two times more than Jean’s car. What property can be distributed? In Massachusetts, absent a marital agreement, a judge would likely consider the business earnings and future royalty earnings in the divorce decree. The judge would also equitably divide their earnings, the joint account, the value of the house, and their vehicles in an order for the equitable distribution of their property.

No two family law or divorce cases are alike. If you have any questions about divorce, family law, child support, alimony, or more, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

 

 

 

Alimony and Gross Income Calculations

What are “gross income” tax implications of alimony payments? Alimony is court-ordered support from one spouse to another under a divorce or separation agreement. The purpose of alimony is to allow a receiving spouse to endure the same or similar type of lifestyle that he or she had during the marriage relationship.

In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments. This ensures that alimony payments do not endure if their endurance would be unequitable, or unfair. The goal in Massachusetts is to achieve an equitable result based upon several factors about the marriage relationship.

It is important to note that child support is separate from alimony. Child support is awarded to a custodial parent, so that the children are financially supported when a divorce occurs between a child’s or children’s parents.

In the Commonwealth, there are four types of alimony: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

People who pay or receive alimony payments need to consider the “gross income” tax implications that are invoked with the paying and receiving of alimony payments in a divorce. This is an important consideration that should be handled between an experienced family law attorney and tax professional, especially since income is handled on a federal and state level.

For example, suppose that a couple is divorced in Massachusetts. The judge orders that the former husband pay $2,000.00 each month to the former wife. Are any of the former husband’s payments to his ex-wife deductible? In other words, how may the husband handle the alimony payments that he makes to his wife for tax purposes? The law states that a party’s alimony payments are deductible from gross income by the payer, and are included in gross income by the collecting spouse. Any alimony received is included in federal gross income and therefore must be included as Massachusetts gross income. With the example mentioned, the husband is likely able to deduct his alimony payments that he transacts to his ex-spouse. The former wife will have to include the payments that she receives as her income.

If the former husband and former wife in the aforementioned example have a child or children together and the former husband is ordered to also pay for child support, may the former husband include any child support payments as an alimony deduction? No, because the law states that a child support payment does not qualify as an alimony deduction and any amounts are not included as gross income by the recipient, which, in this example, is the former wife.

Here is an example: Sally and Joe decide to divorce. Sally and Joe have three children together between the ages of 6 and 14. Sally works as a public school teacher in an inner-city school and earns $45,000 per year. Joe is a CEO of a company and earns $170,000 per year. A Massachusetts justice of the Family Court ordered that Joe make alimony payments to Sally in the divorce decree. Additionally, the judge ordered that Sally will have custody of the children, but Joe will make child support payments to Sally for the children. Sally and Joe want to know whether they must include the alimony and child support payments on their tax returns.

Because Joe is the person making the alimony payments to Sally, Joe may deduct his alimony payments on his tax returns. Sally, however, must include any alimony payments that she receives as “gross income.” Joe may not deduct child support payments and Sally should not include child support payments as income on her taxes; child support payments are awarded for the “best interest of the children.”

Massachusetts alimony and child support issues are nuanced and complex. If you have any questions about divorce, family law, child support, alimony, or more, please contact our competent attorneys. You may schedule a free consultation with an experienced divorce law attorney or family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online. Do not hesitate to call our offices today.

Automatic Restraining Order Upon Filing for Divorce

Suppose Jack filed for divorce, and Jill is left confused, unaware of what comes next in the divorce proceedings. Jill is served the divorce papers and realizes that there is an automatic restraining order as part of the summons and complaint. Frantically, she calls a divorce attorney, wondering if a restraining order is all about. Could it mean she cannot have contact with her ex-spouse? Is it possible that she won’t be able to access her financial accounts or her home?

As divorce attorneys, we receive many inquiries regarding the initial paperwork filed in a divorce proceeding. Whether you filed for divorce or are defending a divorce action, you may have heard that Massachusetts Probate and Family Court attaches an automatic restraining order against the defendant spouse at the time of the divorce filing. What is an automatic restraining order; how can you follow it; and what are the sanctions for not following it?

In every Massachusetts divorce case, there is an automatic restraining order. This automatic restraining order is present when the plaintiff-spouse files for divorce, and when the defendant-spouse is served the initial divorce complaint it as part of the Summons. The automatic restraining order is present throughout the entire divorce case, unless modified by agreement of the parties or order of the Court. Upon entry of the divorce judgment or decree, the automatic restraining order is terminated and vacated.

The automatic restraining order, which is codified as Massachusetts Supplemental Probate and Family Court Rule 411, provides for certain restrictions to parties in a divorce. It states the following:

“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.

Selling your stocks? Giving your children some of your antique jewelry? Hiding your ownership in a partnership or business? All of these could be considered by the Court to fall under the protections of the automatic restraining order, and engaging in these acts despite the order may expose you to sanctions by the Court.

Additionally, Rule 411 prohibits either party from incurring any further debts that would burden the credit of the other party—this includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Rule 411 also prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, as well as from causing the other party or the minor children of the marriage to be removed from the coverage.

The goal of an automatic restraining order is to ensure that the parties’ do not make any drastic changes during the divorce proceedings. If one party would do something to give themselves an unfair advantage in the proceedings, or on the other hand, unfairly place the other party at a grave disadvantage, this could greatly impact the outcome of a case.

A question you may have is: what happens if you or your ex-spouse violates the automatic restraining order? Is there a way to make the non-compliant party comply? Are there any repercussions for violating the order?

If either party violates the automatic restraining order provision of Probate Court’s Rule 411, the other party can either file a formal complaint for contempt with the Court. A complaint for contempt arises when a party does not agree with a court order. It is a judge’s decision as to whether or not the party has violated the automatic restraining order. If so, the party will be held in contempt of court, and the judge will impose sanctions based on the severity of the violation. Sanctions are court-ordered penalties for disobeying a law or rule—in this case, they may range from fines to unfavorable rulings on certain motions.

If you need assistance with an automatic restraining order 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.