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.

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.

What is Rehabilitative Alimony, and How Does It Work?

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

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

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

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 Her computer degree is outdated, and she does not have as much experience as others in her field.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

The Health of the Parties in Modification of Alimony

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

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

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

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

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

 

 

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

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

[3] Id.

[4] Mass. Ann. Laws ch. 208, § 53

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

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

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

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

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

[10] Id. at 7

The Respective Estates of the Parties: a Factor in Alimony

Suppose Grace and Will own a home and have pension plans. Now that they are divorcing, they want to know how a court would impose alimony payments. How do the respective estates of the parties factor into the court’s decision regarding alimony?

Alimony is court-ordered support from one spouse to another.[1] 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. In Massachusetts, there are four types of alimony[2]: (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).

In Massachusetts, assets are divided on an equitable basis.[3] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[4] A court may assign all or any part of the estate of the other, including, but not limited to, retirement benefits, military retirement benefits, pension, profit-sharing, annuity, deferred compensation, and insurance.[5] The definition of estate is broadly defined.[6] As such, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[7]

A judge 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.[8]

For Grace and Will, a court will evaluate their income levels and the type of alimony that should be awarded (and if any should be awarded). If a judge determines that an alimony award is necessary, the court will factor the estates of the parties in the award on an equitable basis. Courts will also look to determine whether either of the parties wasted marital assets and will make an award based on equitable, not solely “equal” factors.

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

 

 

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

[4] Adams, 459 Mass. at 371 (citing to Redding v. Redding, 398 Mass. 102, 108 (1986))

[5] M.G.L. c. 208 § 34

[6] Rice v. Rice, 372 Mass. 398, 400 (1977) (holding that an estate is all property to which the party holds title, however acquired.)

[7] Moriarty v. Stone, 41 Mass. App. Ct. 151, 156 (1996) ; Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

[8] Alimony Award Process, https://www.mass.gov/service-details/how-the-court-decides-if-alimony-will-be-awarded-alimony; Mass. Gen. Laws ch. 208 § 34