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 our competent family law attorneys 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 our competent family law attorneys 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

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 modification of 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

Retroactive Modification of Child Support Payments

Is the retroactive modification of child support payments a possibility in Massachusetts?

Say, for example, that a payor party’s income increases. The receiving party does not file for modification right away–perhaps because she does not know of the increase in income. Once she does file, may the Court increase the payments retroactively, going back to the date that the payor party’s income changed?

In an interesting recent case, the Massachusetts Appeals Court held that retroactive modification of child support was valid. Specifically, where the parties agreed in their separation agreement that future modifications of support are retroactive to date of change of income, the court has the jurisdiction to modify retroactively to that date. This is true even when the date predates the filing of the complaint for modification. 1

In the case, Calabria v. Calabria, the parties were divorced in 2010. The husband was ordered to pay $416 semimonthly in child support. In their separation agreement, the parties agreed that in the event of a change in income or employment, they would immediately notify the other party, seek modification, and modification would be retroactive to the change of employment or salary date.

In 2013, the wife filed a complaint for contempt, claiming among other things that the husband failed to notify her of a change in his income. As the parties exchanged financial information during that proceeding, the wife found out that the husband was consistently making more by 2012 than he did at the time of divorce. She filed a complaint for modification.

The trial judge applied the Massachusetts Child Support Guidelines dating back to the time period of 2011, 2012, and 2013, and computed a deficit of $9,264 for the prior years. The husband appealed, claiming that the judge was without authority to make any increase retroactive to a date earlier than the date of the complaint for modification. The Appeals Court disagreed.

The court specified two circumstances in this case which particularly allowed for this decision. First, the parties had specifically provided for retroactive adjustment of child support in their separation agreement. Second, the adjustment fostered the best interests of the parties’ child and did not derogate from the purposes of the law on modifications of child support.

“Here, we are presented with a modification judgment that gives effect to a predivorce agreement of the parties concerning retroactive adjustment of child support and that results in an increase rather than a decrease in child support during the period preceding the complaint for modification,” the Court explained. “In such circumstances, the objective of [the law] to furnish finality and clarity to orders for child support in order to facilitate prosecution of an enforcement action based on the support order is not impaired by the possibility that the support obligor might assert claimed defenses to payment.” 2

If you need help with child support modification or other issues of family law, contact our offices to schedule a free consultation with one of our competent family law attorneys.

1 Calabria v. Calabria, No. 16-P-1397, May 31, 2017 – July 13, 2017.

2 Id., at 5.

What are Void and Voidable Marriages?

A wedding may be the happiest day of one’s life, but in some cases, the wedding day might not lead to a valid marriage. According to the Courts, and well-established in statutory and case law, certain marriages never even happened.

In Massachusetts, marriages of incest or bigamy are statutorily considered void without the need for any judgment.[1] Marriages of consanguinity or affinity are prohibited; the statutes, precisely, state the following:

No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.[2]


No woman shall marry her father, grandfather, son, grandson, brother, stepfather,   grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.[3]

The Commonwealth also prohibits bigamy. There are certain exceptions: for instance, if a party enters the second marriage in good faith and with full belief that his or her first spouse was dead, or that the first marriage was dissolved by divorce or annulment, then the Court may hold that the second marriage is valid despite the existence of the first marriage.  [4]

In addition, a marriage may be considered voidable (meaning, either party may seek to invalidate it through annulment) for several other reasons, including:

  • Where one party was under the age of eighteen and entered the marriage without proper permission;
  • Where one party was insane at the time of entering the marriage; or
  • Where one party was suffering from “idiocy” at the time of entering the marriage.

The process of annulment allows the parties to request that the Court issue an order declaring the marriage invalid. If one party doubts or denies the validity of the marriage, that party (or a guardian or other person acting on behalf of the party) may commence an action of annulment, which is commenced in the same manner as a divorce action, in the Probate and Family Court. An annulment is different from a divorce: it is not dissolution of the marriage, but rather a declaration that no marriage exists between the parties.

There are still other reasons a party may seek to annul the marriage, including:

  • Fraud
  • Impotency
  • Duress, coercion, or other threats

What about children who are born during a marriage—is their status affected in any way? Yes. Statutorily, the issue born to a void marriage is considered to be born out of wedlock. [5] In a voidable marriage, the issue is considered “the legitimate issue of the parent who was capable of contracting the marriage,” [6] or in other words, the party who did not suffer from non-age, insanity, or “idiocy” is considered to be the legitimate parent of the child.

If you are seeking an annulment or have related questions, 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. 207 s. 8

[2] Mass. Gen. Laws, ch. 207 s. 1

[3] Mass. Gen. Laws, ch. 207 s. 2

[4] Mass. Gen. Laws, ch. 207 s. 6

[5] Mass. Gen. Laws, ch. 207 s. 15

[6] Mass. Gen. Laws, ch. 207 s. 16

Do both parties need a lawyer for a prenuptial agreement?

Prenuptial or premarital agreements have become more popular in recent years for a variety of reasons. With a shrinking middle class, many people entering their first marriage expect to receive a significant inheritance or gifts from parents at some point during their lives. Additionally, it is not uncommon for people entering second marriages to want an additional sense of protection, particularly for the assets they acquired before getting married. Sometimes the idea of protecting oneself with a premarital or prenuptial agreement is pushed by a party’s parents, and sometimes it is the idea of the party him or herself. Either way, the agreements have gained popularity in Massachusetts. Before you enter into one, you are well served generally understanding how they work.

Essentially, the idea of a prenuptial agreement is that the parties choose how a divorce would work in the event it ever happens.  The agreements can cover different issues and are generally tailored to the individual facts and circumstances of the situation.  The focus, however, is always financial, dealing almost exclusively with alimony and/or property division.  The terms of a premarital agreement attempting to establish a custody arrangement or child support figure are unenforceable. Any such terms would be stricken from an agreement and not enforced–that is, if the entire agreement was not set aside as a result. Issues regarding the children will always be determined at the time of divorce, because child support is always based on income at the time it’s determined, and custody arrangements are always based on the best interests of the children, which cannot be determined in advance.

The parties are generally free to enter into agreements regarding alimony and property division, called equitable distribution in Massachusetts, as they see fit. However, unless some basic guidelines are followed, the parties risk the agreement being set aside and not enforced at the time of divorce. When that occurs, it is ordinarily a big disappointment to the party in a superior financial position and generally undermines the purpose of the entire process.

Parties entering into a premarital agreement must generally understand the terms of the agreement and must have adequate time to contemplate the terms before getting married. Failing to have these elements present will raise the issue of whether the parties truly understood the agreement into which they entered, and also whether they entered the agreement under duress. While it may be tempting for a party in the better financial position to push strongly to get the prenuptial agreement completed and signed, being too aggressive may result in the agreement not being enforceable. One important element in ensuring the absence of duress is for each party to have a competent family law lawyer represent them through the process.

These issues were recently discussed in a rule 1:28 opinion in the case of Allen v. Allen. In that case, the premarital agreement in a 17-year marriage was set aside by the family court judge overseeing the divorce. The facts upon which the judge relied are as follows. The wife was from Brazil and her primary language is Portuguese. The husband exclusively spoke English, and when they started their relationship, they needed an interpreter just to communicate. Leading up to their marriage, the husband told the wife that he would not marry her unless she signed a prenuptial agreement. He had an agreement drafted by a lawyer who did not speak Portuguese.  The husband signed the agreement five days before the wedding. The wife then brought the agreement to the Portuguese-speaking lawyer who, although he did not represent her in the matter, translated the document for her. Notably, that lawyer did not practice divorce or family law, something the appellate court took note of in affirming the trial judge’s decision.

The Portuguese-speaking lawyer’s only function was translating the prenuptial agreement verbally into Portuguese for the wife. The agreement was generally protective of the husband’s interests, waving alimony and property division between the parties.

When the parties filed for divorce, the husband sought to enforce the agreement, and the wife sought to have it set aside. The wife prevailed, and the judge ultimately ordered the husband to pay alimony for a period of 702 weeks. The judge also distributed the marital estate, distributing most of it to the husband but a sizable portion to the wife.

The husband appealed, clearly dissatisfied with the trial judge’s ruling. How could this have been avoided? Competent and experienced divorce and family law attorneys know the basic requirements of a prenuptial agreement. Even if they aren’t in the practice of drafting or negotiating these agreements, they see them come up in divorce cases. Step one in ensuring a prenuptial agreement is enforceable is having competent, experienced divorce lawyers representing each party. The reason that is necessary is that the parties are not able to enter into an agreement knowingly if they don’t understand how a divorce would work in the absence of an agreement. In order to be counseled effectively on what would happen in the absence of an agreement, you need to speak with a lawyer who actually understands divorce and family law.

Beyond having competent counsel, the concepts of basic contract law would apply. For the agreement to be enforceable, you need to have a full disclosure of finances from both parties. Each party needs to understand the basic financial world of the other. That includes the other party’s income, assets, and debts. There also must be adequate time between signing the agreement and when the wedding actually occurs. Failing to have that creates an argument of duress. Consider for example the wedding being scheduled, 150 family members booking flights and hotel rooms, tens of thousands of dollars spent on the wedding itself, and then one spouse saying he or she will not marry the other without the other signing a prenuptial agreement waving important rights.  That fact pattern would put the individual in such a difficult position here, that he or she may sign just to avoid problems for his or her family and friends. Signing the agreement far enough out will avoid these issues. The agreement also cannot be completely one-sided. In Massachusetts, the judge will review the agreement at the time it is enforced to make sure it is not unconscionable, putting one spouse into an extreme financial hardship. Accordingly, the parties are well-advised to draft the agreement in a way that neither party will end up destitute.

The first step in getting a premarital agreement established is a consultation with a competent divorce lawyer or family law lawyer To schedule a free consultation with our office call 978-225-9030 or complete the contact form on this website.