Reimbursement Alimony in Massachusetts

In Massachusetts, judges of the Probate and Family Court may award alimony to one of the spouses during the divorce process. Alimony is payment by one former spouse towards the maintenance of the other spouse. Under the Massachusetts alimony law, there are four types of alimony: (1) general term; (2) rehabilitative; (3) reimbursement; and, (4) transitional. One form of alimony is called reimbursement alimony. The aim of reimbursement alimony is to pay one spouse back for the support (financial or otherwise) that spouse provided during the marriage.

Couples embarking on the divorce process in Massachusetts should hire competent legal counsel for this process. Divorcing couples must understand the various forms of alimony that a spouse in a divorce could receive from the payor spouse. The type of alimony that a Massachusetts judge awards to a person is based upon various factors and the length of the marriage.

For example, suppose that Jessica and Tim met during college. Soon after their graduation from school, they were married. Jessica worked as an entry-level technical writer, on a track to eventually be promoted to a senior-level technical writer or director of technical writing, with a dream of going to law school to become an attorney. Tim was an entry-level financial analyst. Jessica earned more than Tim. After one year of marriage, Tim and Jessica decided that Tim would attend graduate school for business. The two-year business program was intensive, but Jessica supported her husband’s dream to become a business mogul. During their discussions about whether Tim should attend business school, the couple decided that Jessica would wait to pursue her dreams of law school until her husband finished his two-year business program. Additionally, Jessica would not work while he was in graduate school, so that she could support him. After his graduation, Tim found a job that offered a significant pay increase, and Jessica continued to support Tim as a homemaker. She never went to law school, so she did not have the chance to pursue a law degree and eventually a wonderful and arduous career as an attorney. A few months later, Tim asked Jessica for a divorce. Jessica has many questions for her attorney: first, is she entitled to reimbursement alimony?

Reimbursement alimony is intended for marriages that are shorter in length of time, five years or less. The purpose of reimbursement alimony is to compensate the payee, or recipient, spouse for all that the spouse did to support his or her spouse. The payee spouse receives reimbursement alimony to compensate for time, money, and effort spent in enhancing the other spouse’s earning capacity.

Jessica would likely be the person in the marriage entitled to alimony, because Tim earned more money and because Jessica would need to be compensated for all that she did to support Tim. Because their marriage was shorter in length–less than five years–the form of alimony that a justice would likely award to Jessica would be reimbursement alimony. A Massachusetts Probate and Family Court judge may decide to award Jessica reimbursement alimony to compensate her for her time, money, and effort in enhancing Tim’s earning capacity. The spouses had decided that Tim would pursue an education to support his career. Because of this, Jessica was unable to advance in her career. This decision boosted Tim’s earning capacity and not Jessica’s as an individual. Because of this, a Massachusetts judge would award Jessica an alimony amount to reimburse her for all that she did to support Tim as a spouse, such as her staying at home to support Tim as a homemaker and also her foregoing her dreams to support his.

Suppose that Tim and Jessica had been married for longer than five years. Could Jessica receive alimony? The answer is that Jessica could receive alimony, but not reimbursement alimony, because reimbursement alimony is for marriages that lasted five years or less. A Massachusetts judge would likely award Jessica one of the other forms of alimony, such as general term alimony, to make her whole and comfortable as she was during the marriage. Reimbursement alimony is not designed to support longer marriages.

It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about reimbursement or other forms of 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.

The Intersection of Immigration and Family Law

Many natural born citizens in the United States take for granted the ease of navigating the legal system as a United States citizen. This assertion is especially true in comparison to the ease of navigating the legal system for non-naturalized citizens. Many citizens do not understand the significant role that one’s citizenship status plays in the family law context, such as the ability to marry, divorce, obtain custody of children, and obtain financial support from another person. Citizenship carries many benefits within the family law context. There are, however, ways for all people to navigate the legal system to understand family law and the intersection of it with immigration.

The law values the family unit and the protection of children, and family law in particular has the power to affect society and the family unit. Family law also has the potential to encompass other cornerstone issues of law as well, such as family law issues involved with immigration. Given the sensitive nature of this issue–as well as its timeliness–it is important to understand the intersection of family law and immigration law.

Each of the following scenarios includes family law and immigration law issues:

  1. Hovhaness was born in the United States. He met a woman named Agnes who was born in Armenia and arrived to the United States as a teenager. The two had one child together. Years after their son was born, Agnes decides that she wants to return to Armenia to be with her elderly parents. She wants to bring their child. Is she able to? Does Hovhaness have any rights to the custody of the child?
  2. Joshua and Jonathan are a same-sex couple. Only one of them is a citizen of the United States. The couple wants to know whether they can legally marry in the United States. If they marry, would they both be citizens?
  3. A former couple, Bobby and Josie, are divorcing. They are parents to two daughters. Bobby wants to move to another country to live. Is he able to do so? Does he have any child support, alimony, or other obligations?
  4. A mother and her two children are refugees from another country. The husband of the woman and father to the children died. The mother wants to know whether she has any recourse, any way to obtain monetary support from her husband’s estate, located in their native country.
  5. Ximena was born in the United States. Her mother and father immigrated to the United States illegally. With growing concern about her family, Ximena wants to know more about her rights and responsibilities. Is she a citizen? If not, it possible for her to become one? Is there a way to make her parents citizens? Imagine that Ximena also has an older brother, but he was born in Mexico. Is he a citizen?
  6. A young woman lives with a United States citizen, a man. He threatens to report her to authorities if she discloses to anyone about the abuse and violence that he perpetrates against her.
  7. Natalie was born in India. She met her husband in India as well. The couple moved to the United States and became legal citizens. Eventually the couple had two children. One day, Natalie’s husband left for India with their children. Does Natalie have any recourse? Would she be able to get her children back to the United States?
  8. A young man marries a United States citizen woman in order to obtain his permanent residence card.

Many immigrant families need legal support that involves family law and their immigrant status or former immigrant status. These issues affect people of different genders, orientations, religions, nationalities, and backgrounds.

Immigrants may need help in the preparation and filing of petitions for alien relatives, adjustment of status, naturalization, and issues involving deportation or removal. A skilled attorney may be necessary to help an immigrant or the citizen in a familial relationship with an immigrant to find the solution to a problem. Marriage visas, green cards, bonds, DACA assistance, other visas, and other statuses may be tools available to you for your specific family law and immigration issues.

If you have questions or concerns about issues about family law, custody, child support, or domestic relations, you should contact a competent family law lawyer. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to you promptly.

The New Tax Laws & Your Alimony – How Will You Be Affected?

If you are beginning the divorce process, there are many questions you may have for your divorce attorney regarding your finances. You many find yourself in a situation where you could be paying your former spouse alimony, or you could be the individual receiving alimony from your ex-spouse. In 2017, the GOP-run legislature enacted new tax laws that will greatly impact alimony payments and separation agreements. This article will explain to you some of the impacts the bill will have on your divorce and the financial implications you may face.

First, it is important to understand the fundamentals of alimony. When divorcing, a former spouse can ask for alimony, a form of financial maintenance to assist the other spouse in becoming financially stable once the marriage has ended. There are many factors that are considering in order to determine alimony payments. These include the length of the marriage, health of the parties, socioeconomic status of the ex-spouses, financial contributions to the marriage, age, education, profession, and a variety of other factors. Depending on the situation, alimony payments can last for a certain duration or an extended period of time. According to an IRS report, in 2015, over $12 billion dollars of alimony was paid in the United States. 

First–and the most important thing to know–is that alimony payments will no longer be tax deductible for any separation or divorce agreement signed after 2018. As the alimony will be treated like child support for new alimony recipients, these payments will not be reported as income. However, if alimony payments are already being made prior to the end of 2018, there will still be tax deductions for these payments.

 Also, if these payments are already in effect, you will not be affected by any of the new tax laws to be enacted in 2019. Any prior divorce agreements will remain valid, and the IRS will uphold prior alimony agreements.  However, if agreements are modified in the future, they must comply with the new tax code.

The new tax bill likely will impact both you and your ex, as alimony payments are generally given to those in a different socioeconomic status than their ex-spouse. For example, let’s assume you are the payor, and you are now receiving a tax deduction for your payments to your ex-spouse in a lower tax bracket than you are. If you were to divorce in 2019, as the payor, you may have a better chance of no longer paying as much, since there would be no tax deduction. Due to the lack of deductions, monthly payments would inevitably be more expensive. These deductions have been so important because if a former spouse is having difficulty with payments, they were given a bit of a break due to the deduction. If tax relief is given to the payor as part of the divorce agreement, this could be one option to alleviate some of the stress that these new tax laws bring.  

It is likely that many will not be able to afford as much in alimony, as these new tax laws are a deterrent to paying as much alimony as possible. Many have assumed that divorce proceedings will increase this year, as some people attempt to get ahead of the new tax laws. If both parties agree on these modifications, their old alimony agreement can be updated to conform with the new tax code. Since there will be no further tax deductions due to alimony, many payers will be rushing to divorce attorneys to deal with these agreements as soon as possible. It is inevitable that finances in a divorce could become a lot more cumbersome and messy.

If you are going through a divorce and are concerned about how the new tax laws will impact your current or future alimony payments, please contact a family law attorney to discuss your options. If you need more information about family law or this issue specifically, please feel free to 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.

 

How are Social Security benefits and pension/retirement plans treated for purposes of property division and alimony payments?

Robert and Mary, a Massachusetts couple, have been married for ten years and now want to proceed with obtaining a divorce. During the marriage, Robert worked and Mary took care of the home. They had no children. Because Robert has a pension plan, the question comes up: how does a court handle Social Security benefits and pension/retirement plans in property division and alimony?

In Massachusetts, the property in a divorce is subject to an “equitable division.” This does not mean that each party to the marriage receives an equal share of property in the marriage. Rather, each party to a marriage receives fair and equitable amounts of property, so that each party can experience a similar lifestyle to which he or she grew accustomed during the marriage.

A pension earned during the marriage is generally considered to be a joint asset of both parties, and would likely be equitably divided via a qualified domestic relations order. This is an order that is filed with the Massachusetts Family Court and if approved is given to the administrator of the pension, so that the pension maybe divided between the parties. The division of a pension may be a complex issue because pensions, also including IRA or 401(k) accounts, are not always equal in a dollar for dollar manner, as there may be penalties and taxes associated with them. A family law attorney can help evaluate and value the numerical amounts to handle this complexity on your behalf.

Retirement accounts are also considered to be marital assets in a divorce. As such, retirement accounts would be divided on an equitable basis. This issue becomes complex, however, because the parties must look to the length of the marriage. For example, in the case above, Robert and Mary were married for ten years. Suppose, therefore, that Robert continues to work for another 30 years. His payment to Mary would be one half of the quarter of the account, because his payment is one half of his working life during the marriage.

Alimony is different from property division in a divorce. Alimony is court-ordered support from one spouse to another and is separate from the equitable division of property. In Massachusetts, 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).

If a judge decides to award alimony under the common General Term alimony standard, then he or she will review the following factors when deciding whether or not to award alimony or for how much the alimony award should be assigned: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage, and other factors the court considers relevant and material.

Robert and Mary were married for ten years, and the facts indicate that Robert was the sole working person in their family unit. As such, alimony payments would likely be awarded to Mary from Robert. Depending on the type of alimony that the Court determines that Mary would receive, Mary would likely be able to receive alimony payments until Robert’s retirement age. The Massachusetts family court may review several factors in awarding alimony payments to Mary, such as her health and disability (if she has issues such as these), marital lifestyle (she was able to stay at home), and her contribution to the family unit (lost opportunity to work, for example).

If a Massachusetts Justice decides to use this equitable factors approach under General Term Alimony, then the Justice would likely order that Mary receive alimony for seven years, unless Mary remarries or if Robert passes away or if Robert reaches full retirement age. If Mary cohabitates with someone else and has maintained a common household with another person, then Mary’s alimony payments could be ordered to be ceased. It is important that a payor spouse, like Robert, not arbitrarily discontinue payments without the approval from a Massachusetts Justice.

If you are seeking a competent family, pension, retirement, or alimony law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Durational Limits on Alimony: New Case Law

As we explained previously, the Massachusetts Alimony Reform Act of 2011 prescribed durational limits for alimony payments. These limits cap alimony based on the length of the parties’ marriage. The limits are imposed at the time the marriage is over—but what exactly does that mean? In the case of multiple filings and counter-filings, for example (as tends to be the case with many divorces) just when is the marriage “over”?

The Appeals Court addressed this issue in a recent case, Sbrogna v. Sbrogna. In that case, the parties were married in 1973. The husband first filed a complaint for divorce in 1990 on the ground of irretrievable breakdown of the marriage; however, no record of service of process on the wife existed. A few months later, the husband filed some motions related to the case. Those motions were never acted on, and two years later, the case was marked “inactive,” though not dismissed or otherwise formally closed by the court.

In 1994, the parties filed a joint motion to amend and a joint petition for divorce based on the irretrievable breakdown of the marriage. The motion to amend was allowed, and the case proceeded as a joint action for divorce. The judgment of divorce was entered in 1994.

In 2016, the husband filed an action seeking to modify his alimony obligations. To do so, he attempted to use the 1990 filing date as the end date of the marriage, as opposed to the 1994 filing date of the joint petition. The husband argued that because of the 1990 filing, the parties were married more than fifteen years but less than twenty years, making his alimony obligation modifiable. The wife filed a motion to dismiss, which was granted. The husband appealed.

The Appeals Court explained the durational limits imposed by the Alimony Reform Act of 2011. Under those limits, a marriage lasting more than 15 but less than 20 years is capped at 80% of the duration of the marriage for purposes of alimony payments. However, those caps do not apply to a marriage lasting more than 20 years—hence the husband’s argument regarding the original 1990 filing date signifying the end of the parties’ marriage.

The Appeals Court then explained that for purposes of alimony, the length of the marriage is defined as the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce. However, the Court noted, the relevant pleading is that which results in a valid judgment of divorce. “To read the statute otherwise would lead to the nonsensical result that service of a pleading that leads neither to a valid divorce nor to an alimony award could nonetheless serve as the basis for calculating the length of the marriage and the duration of alimony, even if the parties reconciled and lived together for decades before ultimately divorcing,” the Court stated.

Because it’s common to have multiple complaints and petitions in divorce cases, any other reading of the statute would be difficult, if not impossible, to enforce, the Court said. As a result of this interpretation, the Court noted that for alimony purposes, the 1994 joint petition must be used as the date for calculating the length of the Sbrognas’ marriage. As such, the husband was not entitled to modification of his alimony payments, because the marriage lasted longer than twenty years, thereby falling outside of the Act’s durational limits on general alimony.

If you have any questions about alimony 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.

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 attorney today. Call our offices at 978-225-9030 during business hours or complete a contact form online.