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

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

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

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

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

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

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

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

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

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

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

Parental Kidnapping

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

Social Media Posts During Divorce

Most people have at least one social media account, seeing that there are various forms of social media on several platforms–Facebook, Instagram, Snapchat, and Linkedin, among others. People facing a divorce often ask: does the use of social media have an impact on a divorce proceeding? As a simply answer, it might. In fact, with the click of a mouse, you could sabotage your divorce or child custody action.

Suppose that Jack and Jill are getting divorced. Jack and his new girlfriend go to Europe. Jack’s girlfriend has family in Europe, and her family paid for their flights. While there, Jack and his girlfriend explore several prominent destination spots. Jack’s girlfriend posts pictures of their trip to her social media account. Jack’s girlfriend is a professional photographer and manages to capture shots of their food and surroundings to make their location and lifestyle seem glamorous. Unfortunately, Jack’s girlfriend tags Jack in these photos on Facebook, so that the photos appear on his page too.

On the surface, it would appear that Jack has money for an expensive vacation – what the photos do not reveal is that Jack spent no more than $400 on the entire trip. The photos do not reveal Jack working remotely during his trip, although he does work during his trip because he cannot afford to be away from work. Although Jack’s Facebook is private or mostly private, Jack’s social media friends are social media friends with social media friends of Jill’s. Ultimately, Jill sees these photos. When Jack requests alimony from his ex-spouse Jill, Jack’s request is denied because the judge sees that Jack has the means to travel to Europe and dine at French restaurants.

Email and text messages are admissible in court, and Massachusetts courts may use evidence from social media accounts against a party in a divorce action. One rule to consider in a divorce: if you would not want all parties and the judge to see your posts, then the post should not be uploaded. As such, it is important to change your settings to not allow someone else to tag you in photos or upload evidence to your Facebook “wall” without your permission.

Another consideration deals with employment and income, which may come up in regards to issues of alimony, support, or property assignment. For example, Linkedin is a social media platform that may show that your ex-spouse has another job, which may mean that your ex-spouse has more income than originally realized.

Yet another way that social media can play a role in family law deals with its impact on custody considerations. Imagine that you are a parent fighting for your child’s custody. What would happen if a judge saw images of you drinking with friends at the time when you were presumed to have been watching your children? This information could damage your custody case. Even if you weren’t drinking, but were with people who were drinking – the appearance of your lifestyle could affect how you are perceived in court.

What if you and your spouse agreed to raise your child on a “healthy” diet, but you’re posting pictures of your child eating cookies and junk food? Imagine that your child was unruly and took his coat off during the winter, and you posted a picture of your child without a coat on in the snow? Does this show poor parenting?

There are countless situations and photographs that could be spun in the favor of your ex-spouse. As such, it is important to note that even if you are a wonderful parent or even if you are accurate in your financial reporting, a judge could make a decision that is not in your favor. After all, the judge is a human and appearances matter.

If you have a social media account, you should not delete it once your divorce litigation begins. However, it is important to refrain from using your accounts because your words and posts may be used against you in your divorce action or child custody case. You also should not use dating sites or applications until your divorce is finalized.

Many people believe that if an account is private or if the settings are adjusted, then no one can see their posts. This is untrue. Many social media platforms change their digital privacy settings often, which could lead to the revealing of your “personal” photographs or posts. In addition, in this connected world in which people live, there are often very few degrees of separation between people. You may have a friend who has a friend who reveals your personal information to your ex-spouse.

If you are seeking a competent divorce lawyer or family law 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 with prompt attention.

Stopping Your Divorce When You and Your Spouse Have Changed Your Minds

Let’s set the scene: you and your spouse have already filed for divorce. As you are still friendly, you plan on getting a no-fault, and are awaiting your court date. As time is passing by, you are thinking about what is best for the both of you, your family, and your future. You both decide that you no longer want to go through with the divorce. What do you do?

At this stage in court proceedings, when there has been no involvement of a judge, dismissing a divorce is a very easy process. In this case, we are going to assume that you have filed a joint petition for divorce. If so, you and your spouse can go to the court and execute a Stipulation of Dismissal. When a settlement is reached in a pending case, a voluntary stipulation of dismissal is generally filed by the parties to resolve the action.

On the other hand, this may be a situation when there has been court involvement and perhaps a divorce already has been approved by a court in the Commonwealth. As in other states, there is a mandatory waiting period after a Judgement of Divorce in Massachusetts before it becomes final. This period is known as a nisi period. During this 90-day nisi period, the parties in divorce are given the option to change their mind before the divorce becomes final. During the nisi period, the marriage has not been dissolved. In an interesting Massachusetts case, Vaughan v. Vaughan, the Court held that where one party died during the nisi period, the other party was considered the surviving spouse of the deceased party.

If you decide to change your mind regarding a divorce which was already granted by the court, the parties can file a motion to dismiss the divorce judgment. A judge may only grant a motion to dismiss a divorce complaint during the nisi period if there is “sufficient cause.” For example, in one case, Mailer v. Mailer, the court held that issues with financial aspects of a divorce would not rise to sufficient cause to grant the motion of dismiss. However, an exception to this is if both parties in a divorce file a memo to agree to dismiss the divorce—there, no hearing is required, and the motion to dismiss will be granted.

Assuming you are the party who is seeking to dismiss a divorce action on behalf of yourself and the other party, it is necessary to file a statement of objections to the judgment of divorce during the nisi period.

If you need more information about dismissing a divorce 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.

 

Condonation

Condonation, along with connivance, collusion and recrimination, are affirmative defenses to a fault claim for divorce. These defenses were commonplace in England’s ecclesiastical courts[1] but infrequently asserted in Massachusetts divorce cases and not statutorily grounded. Many jurisdictions have abolished the condonation defense.[2]

Condonation involves one spouse absolving or accepting the other spouse’s misconduct which would constitute grounds for divorce. In essence, it means that a party continues or resumes marital cohabitation despite the other spouse’s misconduct. The defense is most often raised in divorce actions alleging adultery. The argument says that dissolution of the marriage should be denied because the complaining spouse forgave or didn’t object to the other spouse’s wrongful behavior and their union continued. If, however, the unfaithful spouse were to cheat again after the previous infidelity was forgiven, an adultery claim could be brought. Condonation may also be offered as a defense in other fault-based divorce actions, such as those alleging fraud.

Some jurisdictions consider a couple’s resumption of marital relations after the defendant spouse’s wrongful behavior as conclusive proof of condonation. The Massachusetts Appeals Court, following the lead of the Maine Supreme Court, has held that “[s]exual intercourse is not…per se condonation.”[3]

In the Zildjian case, the defendant wife appealed her alimony award and judgment of divorce for cruel and abusive treatment granted her husband, contending that the couple continued to live together after the first two instances of alleged cruel and abusive treatment. The court rejected her argument, finding that: “Condonation is a state of mind to be determined upon all the evidence, including rational inference.”[4] Condonation, the court noted, requires a factual determination of an intent to forgive, adding that a trial judge’s denial of the defense should only be overturned on appeal if clearly wrong.

In a more recent case, Sullivan v. Sullivan,[5] the wife was granted a divorce on the grounds of adultery. The husband vacated the marital home one month after his spouse discovered his affair, though the couple tried to reconcile over the course of several months, taking family trips together, going on several dates, and engaging in sexual relations when the wife visited the husband’s condominium. Nevertheless, the Appeals Court upheld the probate judge’s rejection of the husband’s defense, ruling that the wife never condoned the husband’s affair, that the husband never returned to the marital home and that the wife continued to demean the husband about his infidelity during the couple’s attempted reconciliation.

If you have any questions about divorce or family law issues, 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] Robbins v. Robbins, 140 Mass. 528, 529-530, 5 N.E. 837, 839 (1886).

[2] Chalmers v. Chalmers, 65 N.J. 186, 190-191, 320 A.2d. 478 (1974).

[3] Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 391 N.E.2d 697, 700 (1979).

[4] Zildjian, 391 N.E.2d at 700, citing Hayden v. Hayden, 326 Mass., 587, 591, 96 N.E.2d 136, 139 (1950).

[5] 10-P-1531 (Mass. App. Ct. 2011)

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