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.

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.

 

 

 

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

Modification of Alimony Payments

Kelly and Alex were granted a divorce. The judge also entered a judgment for alimony payments, so that Kelly was ordered to pay Alex $800 per month, along with providing health insurance for Alex.

Kelly has not complied with the health insurance requirement, although she has paid the required monthly alimony amount. Kelly was recently laid off from her well-paying position and now makes about two-thirds of her previous salary. What are Kelly’s options for modifying her alimony payments, especially given that she hasn’t complied with part of the original order?

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).

A judge may decide to change a general term alimony payment if there is a “material change of circumstances warranting modification.”[3] The modification may be permanent, indefinite, or for a finite duration.[4] In addition to needing a “material change of circumstances” Massachusetts Judges also require “clear and convincing evidence” of an extension of an existing alimony order.[5] Massachusetts courts will not order a modification of reimbursement alimony.[6] Additionally, courts will not modify or extend transitional alimony.[7] Depending upon the grounds for doing so, Massachusetts courts may deviate from the duration and amount limits for general term alimony and rehabilitative alimony.[8]

With regard to Kelly, it is important that she speak with her competent alimony law attorney, so that she can request that a modification be made to her alimony order. If she has an order for general term alimony, a judge may enter a modification, so long as she has a “material change in circumstances.” Kelly should not elect to change her payments without a judge’s permission, or else face issues with contempt. It is possible that Kelly will be forced to make additional payments to make up for the health insurance provisions that she owes to Alex.

If you have any questions about issues of divorce, alimony, or property division, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

 

 

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Mass. Gen. Laws. ch. 208 § 49(e)

[4] Id.

[5] Mass. Gen. Laws. ch. 208 § 49(f)(2)

[6] Mass. Gen. Laws. ch. 208 § 51(b)

[7] Mass. Gen. Laws. ch. 208 § 51(b)

[8] Mass. Gen. Laws. ch. 208 § 53

Valuing Partnerships and Professional Practices in a Divorce

How is a share in a partnership valued in a divorce? How are professional practices valued in a divorce?

People facing a divorce are often concerned about their financial futures. One such financial concern regards how shares in a partnership are valued in a divorce. Parties may also wonder how professional practices are valued in a divorce.

Say, for example, that Taylor and Alex have shares in a financial management business. Also, Taylor owns a medical practice. Now that they are divorcing, Taylor and Alex want to know how their assets will be divided, and specifically, how the shares in the financial management business and the medical practice will be divided.

In Massachusetts, assets are divided on an equitable basis.[1] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[2] 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.[3] The definition of estate is broadly defined, however.[4] In fact, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[5] With regard to the division of shares in a partnership, courts will generally interpret G.L. c. 208 § 34 to include partnership assets within the scope of the possible assets that may be divided in a divorce.

Shares of a partnership and business practice interests are part of the marital estate and may be valued by a valuation expert to assess the market value of the asset. A professional practice, like a medical practice, is considered in Massachusetts to be subject to division during the divorce process.[6] Massachusetts courts may order one of the parties in a divorce to relinquish their share of ownership in the business and receive payment either as a lump sum or in a series of installment payments. A court may order that the business be sold and the spouse receives the profits. One spouse could buy-out the business from the other spouse or offset the business with other assets.

During the valuation process, there are generally three valuation methods: the market approach (estimates business value by comparing the business to a similar business that is recently sold); the income approach (estimates business value by converting economic benefits into a value); and the asset approach (estimates business value based on the assets and liabilities of the business).

In the above example, Taylor and Alex have several possible options afforded to them. A Massachusetts Probate and Family Court will divide the estate equitability based upon the parties’ needs and what is most equitable based on their individual case.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. 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] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

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

[3] M.G.L. c. 208 § 34

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

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

[6] Goldman v. Goldman, 28 Mass. App. Ct. 603, 613 (1990).

Exchanging Financial Information During a Divorce

Olivia and Oscar are undergoing a contentious divorce in the Massachusetts Probate and Family Court and are encountering issues exchanging financial information. Oscar is a partner in an accounting firm which is local and privately held. Olivia’s attorney has asked Oscar for his most recent K-1 form, which listed his income from the partnership the previous year. Oscar is refusing to provide them. Olivia wonders if there is a way to ensure that she will receive the documents, which she knows are important for her alimony claim.

Chances are, Oscar will need to turn over the documents to Olivia during the process of discovery, which is the exchange of information between the parties pre-trial. According to the Massachusetts Rules of Domestic Relations Procedure, the parties are entitled to “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]” [1] Because the requested documents are not protected by privilege (such as attorney-prepared memoranda) and are relevant to the matter, Oscar will need to turn them over to Olivia after she sends him a properly drafted request to produce them.

The Probate and Family Courts provide for automatic exchange of some information between parties to a divorce action. Within 45 days of serving the divorce complaint, the parties are required to file with the Court and to send to the other party a financial statement. In addition, each party is entitled to the other side’s pay stubs, as well as tax returns and supporting schedules and documents for the last three years (unless they were filed jointly).

The financial statement requires each party to fill in information about a slew of financial matters, including: personal information, income, weekly expenses, assets, and liabilities. For parties who make less than $75,000 annually, a short form financial statement is required; for those who make more than that figure, a long form is required.

In addition to the above, a party may serve upon the opposing party a request to produce other types of relevant documents. Some examples include the last three years’ worth of bank statements, financial statements, profit-and-loss statements, and copies of loan and mortgage applications.

Should Oscar refuse to cooperate with the discovery rules, Olivia may file a motion to compel cooperation, by which the Court may order Oscar to turn over the requested documents. The rules also provide for sanctions, such as fines to be paid by the non-cooperative party.

If you have any questions about divorce or related domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

[1] Mass. R. Dom. Rel. P. 26(b)(1)