Alimony in Cases of Upward Mobility

In a situation where the spouses are accustomed to an upper-class lifestyle, may one spouse receive alimony based on her expectation that the other spouse’s income will be on an upward trajectory? It’s an interesting issue because there is admittedly some ambiguity in the statute, even after reformed in 2011. Here I, a divorce lawyer, dealing with these issues regularly, assess the SJC’s latest ruling on alimony. So the question is, may a receiving spouse assert that she should be entitled to a higher future alimony amount, as she expected her lifestyle to improve had the couple stayed married? This was the issue discussed and decided by the Massachusetts Supreme Judicial Court in a recent decision.

Young v. Young involved a couple married for nearly 24 years before cross-filing for divorce. Young v. Young, SJC-12240 (March 6, 2017. – September 25, 2017.) After finding that the husband worked as a “high level executive” and received various forms of compensation, and after considering the couple’s affluent lifestyle, the trial judge awarded the wife $48,950 per month in alimony payments. Because of the constantly shifting nature of the husband’s compensation, the judge awarded alimony in the form of 33% of the husband’s gross income to the wife, rather than as a fixed monthly amount.

The trial judge reasoned: “Because the parties lived with the expectation and reality that [the husband’s] bonus level is on an upward trajectory, and given the fact that their needs historically followed this upward trajectory, and due to the complex nature of [the husband’s] compensation over and above his base salary and bonus, it is reasonable and fair in the circumstances to use a percentage for the future alimony particularly given the constantly shifting nature of [the husband’s] compensation.” Young, at 6.

The husband, with lawyer, appealed. In reviewing the case, the Supreme Judicial Court made an important decision regarding the amount of alimony to be paid in cases where a couple’s standard of living entailed an upward trajectory. The court concluded that in cases where the supporting spouse has the ability to pay, the need for support of the recipient spouse was the amount required to enable the receiving spouse to maintain the standard of living he or she had at the time of the separation leading to the divorce, and not the amount required to enable her to maintain the standard of living the couple would have enjoyed in the future, had the couple not divorced.

“Even if the parties enjoyed an upwardly mobile lifestyle for the duration of their marriage, nothing in the language of the statute or our case law suggests that the recipient spouse is entitled, by way of alimony, to enjoy a lifestyle beyond what he or she experienced during the marriage,” the Court noted. Young, at 11.

Moreover, the Court stated that while percentage-based alimony amounts did not automatically run afoul of the law, in this particular case, the judge abused discretion. “Here, the percentage-based award ran afoul of the act and therefore was an abuse of discretion not because of its variable nature, but because it was intended to award the wife an amount of alimony that exceeds her need to maintain the lifestyle she enjoyed during the marriage,” the Court explained. When devising strategy, a lawyer must remember, “There may be cases in which a variable or contingent award is warranted, but such cases are the exception rather than the rule, and must be justified by the special circumstances of the case.”

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.

Can You Appeal a Temporary Order During Divorce?

If you have issues in your case that require an order sooner than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate mush be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?

Joe and Jane are getting divorced. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Sam objected to the probate judge’s allowance of Cindy’s motion that he vacate the marital home during their divorce proceedings.

Are temporary appealable before the parties are granted a final judgment of divorce?

Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.

A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.

Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held, because it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]

A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.

Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings, so the appellant petitioning for review must provide:

  • a request for review giving the date and nature of the order;
  • a statement of issues;
  • a statement of relief requested; and
  • a copy of the order at issue.

Additionally, the petition to a single justice requires a maximum 15-page memorandum of law that includes portions of the records pinpointing the issues the petitioner wants the justice to review.

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] M.G.L. c.215, §9.

[2] M.G.L. c. 231, §118.

[3] Borman v. Borman, 378 Mass. 775, 779 (1979).

[4] M.G.L. c.215, §14.

[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).

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).

Prenuptial Agreement Requires Meaningful Choice in Giving up Rights During the Marriage

Generally, in order for an antenuptial agreement, commonly known as a prenuptial agreement, to be considered valid and enforceable in Massachusetts, the agreement must meet the following elements:

  • in writing and signed by the parties;
  • signed voluntarily and under no signs of duress or fraud;
  • made after full disclosure of the parties’ assets;
  • the prenuptial agreement must be fair and reasonable, and enforcement must not be against countervailing equities;
  • the parties must have adequate opportunity to consult with independent counsel;
  • the parties must understand and clearly indicate the rights which they are contracting away; and
  • the parties must not relieve themselves of their legal obligations during the marriage through the agreement.

One ground for contesting a prenuptial agreement is on the basis of an invalid waiver of marital rights, such as the right to alimony or property. In essence, this means that each party must have the ability to exercise a meaningful choice in giving up his or her rights under the marriage. Each party must understand what rights they are giving up, and each party must exercise his or her choice to do so.

In an important recent case, Eyster v. Pechenik, the court invalidated a one-page prenuptial agreement, drafted by the husband and signed by the parties, in which the parties waived their right to the property of the other spouse. Eyster v. Pechenik, 71 Mass. App. Ct. 773 (2008). The agreement made no mention of alimony or support. The court invalidated the agreement, holding that no meaningful waiver was present. In doing this, the Court also contrasted the facts of the case from the seminal case of  DeMatteo v. DeMatteo, 436 Mass. 18 (2002). The court stated:

“In DeMatteo, the waiver was clear and comprehensive… In the present case, the agreement contained no waiver of the wife’s rights. In DeMatteo, both parties were also represented by independent counsel…Here, neither side consulted a lawyer. The significance of the legal advice in DeMatteo was noted repeatedly by the court.…Also unclear is the parties’ understanding of the terms of the agreement and their effect, and the parties’ understanding of their rights in the absence of the agreement. See DeMatteo, 436 Mass. at 29, 762 N.E.2d 797. This was not “the case of [an] agreement[ ] concluded without the assistance of independent legal counsel for each party, [in which] the agreement states, in language easily understandable by an adult of ordinary intelligence with no legal training, … the nature of any rights or claims otherwise arising at dissolution that are altered by the contract, and the nature of that alteration.” ALI Principles § 7.04(3)(c). Rather, the agreement contains no discussion of marital rights nor how such rights are altered. Furthermore, the provisions of the agreement are sketchy. Assets acquired after marriage other than gifts or inheritances are not clearly addressed or resolved by the one-page agreement, particularly when the document is read from a lay person’s perspective.” Eyster, at 784-785.

One infamous recent case involved the widow of the late John Belushi, who remarried and moved to Martha’s Vineyard. Pisano v. Pisano, 87 Mass. App. Ct. 403 (2015). Prior to her second marriage, she and her husband executed a prenuptial agreement in which they waived their rights to the other spouse’s property in the event of a divorce. Although the agreement referenced alimony, it did not include a specific waiver as to the alimony clause. The husband claimed that the agreement was invalid and that he did not specifically waive his rights to alimony, as “the agreement contains no waiver of the parties’ rights to alimony upon divorce, that the waiver of the parties’ claim to the other’s separate property does not constitute a waiver of the parties’ alimony right on income from the separate property, that the judge failed adequately to distinguish between a waiver of a property interest and a waiver of alimony (which constitute two separate and distinct rights), and that the ruling resulted in effect as an unknowing and involuntary implied waiver of his alimony rights under G.L. c. 208, § 34, contrary to established law and the public policy of the Commonwealth[.]” Pisano, at 411.

The court disagreed with the husband, holding that the overall waiver of rights in this case was sufficient to waive alimony. “While the premarital agreement, as the husband states and as the judge noted, does not contain a waiver of alimony per se, against the backdrop of the parties’ intent to protect their separate property (including income streams), and the above discussed language of paragraph 7 as it pertains to awards of alimony, we think the judge reasonably and properly construed the agreement to limit the husband’s claim for alimony in the manner we have previously described. We also agree with the judge that the modification of rights under G.L. c. 208, § 34, does not, in the circumstances, act as an “unknowing waiver” of the husband’s alimony rights.” Pisano, at 414.

In another unpublished case, Roof v. Abelowicz, the parties entered into a prenuptial agreement: the husband wanted to preserve his estate for his minor children from a previous marriage, while the wife wanted to retain her interests in real estate. Roof v. Abelowicz, 91 Mass. App. Ct. 1112 (2017). At the time, the parties’ assets were roughly equal, but by the parties’ divorce, the husband’s assets had significantly appreciated. The wife sought to invalidate the agreement and claimed that she was not fully aware of her rights at the time of signing. The court disagreed and held that the agreement was valid. “In this case, the terms of the agreement provide guidance as to the parties’ understanding. The tenth clause of the agreement contains an explicit waiver provision, providing that each party entered into the agreement with advice of counsel of their own choosing. Additionally, both the wife and the husband had been previously married and divorced, and, therefore, had previous experience with their rights under the law,” the court noted, also bringing up an email by the wife in which the wife clearly stated that she understood what she was contracting to. Roof, at 2.

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.


Massachusetts Long Arm Statute in Divorce and Custody Cases

Jack and Jen were married in Massachusetts and lived together as husband and wife for four years, during which they had one child, Jonah. Jen has left the marital home on her own. Jack wants to file for divorce, and he also wants custody of Jonah and wants Jen to pay child support. The wrinkle? Jen has just moved to California, and Jack is unsure how to begin the process. Should he file for divorce in Massachusetts, or consider hiring an experienced family law attorney in California? And how might the child support order be affected by the parties’ continental divide? We’ll need to look to the Massachusetts long arm statute to see if Massachusetts has personal jurisdiction over both parties before proceeding.

First, Jack may file the divorce action in Massachusetts based on Jack’s domicile, as he has lived in Massachusetts for more than one year. In addition, the cause of action for the divorce also took place in Massachusetts. In order to serve Jen with process, Jack may turn to two resources: Rule 4(e) of the Massachusetts Rules of Domestic Relations Procedure, and the Massachusetts Long Arm Statute.

Rule 4 (e) deals with service of process in divorce cases. Service of process allows the defendant proper notice of the divorce action against him or her. The section of the rule authorizes service of process in the following manner:

When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to a letter rogatory; or (5) as directed by order of the court. [1]

The Massachusetts Long Arm Statute [2] also provides Jack with an important remedy: it describes the circumstances under which a Massachusetts court may exercise jurisdiction over a person who has engaged in certain business or actions in the Commonwealth. Personal jurisdiction, which allows the court to bind a defendant to the court’s orders, is available under the Massachusetts Long Arm Statute in divorce cases. Specifically, the statute applies to anyone who was “maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim[.]”[3]

The same section of the Massachusetts Long Arm Statute will apply to Jack’s claim for child support against Jen. So long as Jack continues to live in Massachusetts, he may petition the Massachusetts Probate and Family Court for child support, and the Court may exercise personal jurisdiction over Jen.

Should Jack later seek a modification of the child support order (or any alimony order which may be granted), he may use the next section of the Long Arm Statute. Section (h) of the statute provides for personal jurisdiction over a defendant “having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.” [4]

Another important law to aid Jack with the enforcement of any child support order he may receive is the Uniform Interstate Family Support Act. First, this law provides the court which issues the order with continuing jurisdiction:

A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant or the parties have consented in a record or open court that the tribunal of the State may continue to exercise jurisdiction to modify its order, unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.[5]

Second, the Uniform Interstate Family Support Act provides that a state’s child support order will receive the “full faith and credit” of every other state—in other words, other states will be able to enforce the order. In Jack’s case, this gives the California courts the power to enforce any child support order rendered by the Massachusetts courts.

What to speak with a family law attorney about your case? Schedule a free consultation with our office by calling 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] Mass. R. Dom. Rel. P. 4(e)

[2] Mass. Gen. Laws ch. 223A, s. 3

[3] Mass. Gen. Laws ch. 223A, s. 3(g)

[4] Mass. Gen. Laws ch. 223A, s. 3(h)

[5] 28 U.S.C. 1738B

Stages of Development and the Custody Order

How do the stages of child development impact the custody order?

Whether a child is an infant, an eight-year-old, or a teenager, the court will establish custody orders with the “best interest of the [dependent] child” as the priority and focus. [1]This standard, known as “best interests of the child” standard, is established by courts to make decisions for the child’s betterment, from the child’s perspective. Id.

In Massachusetts, the rights of the parents to the custody of their minor children are generally equal.[2] Courts are concerned with the happiness and welfare of the child, including understanding the ways in which the child’s present or past living conditions affect his or her physical, mental, moral, or emotional health. Id. If custody of a child is contested, the parties should submit a custody implementation plan setting forth the details of their shared custody including, but not limited to, the child’s education, the child’s health care, the parental procedure to resolve disputes between the parties, the parties’ visitation periods, and more. Id. The court may accept the plan established by the parties, modify it, or reject it completely.

Although it is possible that one parent may “offer some extraordinary advantage to the child that makes [a change in the child’s living arrangement] worth the risk,” Massachusetts courts have held that “if the child has been living with one parent for some time, the child’s needs are being adequately met under that parent’s care, and that parent is capable of continuing to care for the child, it is not in the child’s best interests to disrupt that successful arrangement.”[3] If, however, a court determines that it is in the best interest of the child to re-arrange the child’s legal and physical custody, a judge may do so.

As a result, the stages of a child’s development are often varied and complex. No two children are alike, and judges will look to the facts of each case to determine the best interest of the child, including the theoretical and actual milestones of a child’s development and how each parent could impact that child’s growth, happiness, development, and welfare.

If you have any questions about custody 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. Gen. Laws. ch. 208 § 28

[2] Mass. Gen. Laws. ch. 208 § 31

[3] In re Custody of Kali, 439 Mass. 834, 844 (2003)

Valuing Automobiles and Personal Items During Divorce

During the divorce process, most parties want to ensure that the end of the marriage won’t result in the end of their preferred lifestyle. How are automobiles treated during property division? How are other personal items of value, such as jewelry and antiques valued in a divorce?

Say, for example, that Alex and Jamie were married for twenty years and have filed for divorce. They appreciate their belongings and want to know how their material items will be divided. Alex is a collector of antiques and also owns two expensive automobiles. Jamie drives the family van and also owns jewelry. Because they cannot agree on the division of their property, they want to know how the antiques, vehicles, and jewelry will be divided by a Massachusetts family court during the divorce process.

If the parties in a divorce agree to their own division of property, the courts in Massachusetts will usually support the fair and reasonable distribution of their agreement related to the property division. However, if the parties cannot agree, Massachusetts courts will make the determination as to how assets should be divided. This division is known as an “equitable division.” Equitable does not necessarily mean that each party is entitled to “equal” or 50/50 division of assets. Instead, the courts will use several factors to determine the fair division of assets. Although the list is not exhaustive, courts determine what is fair by examining the following factors[1]:

  • 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.

If one former spouse believes that she is entitled to more property than a judge initially awarded, another judge may order that without a clear and adequate explanation for the amount of property awarded between the parties, the division of property may not be equitable.[2]

If they cannot agree, Alex and Jamie would experience the Massachusetts court-imposed “equitable division” standard. Their twenty years married, their conduct during the marriage, and the personal items and property shared between them, including the antiques, cars, and jewelry, would be evaluated and divided.

The value of the personal items is dependent on the circumstances which arrant division of property in recognition of the marital partnership concept [. . .][3] Therefore, Alex’s and Jamie’s tangible property could be valued at a fair market value rate, which means that the amount that the property would sell within an open market. If the amount of an item cannot be determined, a judge could look to professional appraisals, receipts, and other material documentation to reach the property monetary amount.

If you have any questions about the divorce process or assignment of property, you may schedule a free consultation with our office. 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] Mass. Gen. Laws ch. 208 § 34

[2] Bowring v. Reid, 399 Mass. 265, 268 (1987) (remanding a decision so that a judge may articulate the rationale for the Section 34 alimony and property awards, especially because the plaintiff alleges that the defendant was unfaithful and abusive and the plaintiff’s contribution to the marriage, her needs, and her sources of income were not considered.); See, Redding v. Redding, 398 Mass. 102 (1986).

[3] Davidson v. Davidson, 19 Mass.App.Ct. 364, 370 (1985) (citing to Inker, Walsh & Perocchi, Alimony and Assignment of Property: The New Statutory Scheme in Massachusetts, 10 Suffolk U.L.Rev. 1, 8 (1975))

Preparing to Pay for College Expenses: A Primer for Co-Parents

Planning for college expenses is hard enough, but it gets even more challenging for those who co-parent. Among other expenses related to the maintenance and welfare of a child, college costs are sometimes ordered by the court to be paid by a party during a divorce or child support proceeding.

In a related article, we wrote that in Massachusetts, a party may be required to continue paying child support when his or her child heads off to college. Under Massachusetts General Laws Chapter 208, Section 28, parents have an ongoing duty to support a child who is at least 18 but not yet 21 if the child maintains a legal domicile with a parent and is principally dependent upon that parent for support.  Even after a child turns 21, if the child has a legal domicile with a parent, remains principally dependent upon a parent for support and is enrolled in an educational program, a parent may be ordered to pay support until the age of 23.

And as we explained in a recent blog post, the 2017 Massachusetts Child Support Guidelines, which were recently passed and become effective on September 15, 2017, provided additional guidelines regarding college cost contributions. On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college.

The Guidelines establish a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.” Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.

What does all of this mean if you are a parent (whether custodial or non-custodial, whether payor or payee) of a college-aged or soon-to-be-college-aged child? Simply put, it is essential that you and your co-parent are on the same page and that you plan early for college expenses. Turning to a trusted professional may be very helpful.

An independent educational consultant who knows the college process and the steps to complete the process may help with the added stress between two divided parents,” says Rebekah Elmore, independent educational consultant and founder of Peak College Consulting. “ A professional IEC knows how to deal with the complexity of family dynamics and works closely with everyone to make the college process as stress free as possible. By hiring a college consultant, parents can step back and let the consultant and student work through the steps without the possible stress the divorce or separation has on the relationship. Many of the students that I work with from divorced families like the fact that they don’t have to pick one parent over another. Keeping both parents informed of where we are in the process and what the overarching plan looks like, keeps them both equally informed and equally a part of this amazing journey.”

Another consideration comes up as to the amount of college expenses to be paid by the non-custodial party. Just what is reasonable? When must one pay for an out-of-state school, or a more expensive private school? These questions frequently arise, and many factors are taken into consideration when answering them.

One case illustrates this point. In that case, the parties agreed that they would split college expenses evenly and that they would mutually select the college for their daughter to attend; however, the daughter and mother chose her college without input from the father. 1 When the father balked at paying $17,000 per year for college, the mother instituted contempt proceedings against him.

A Probate and Family Court judge eventually found that the mother and the child had selected a school “financially out of reach” for the father and ordered him to pay approximately one-quarter of the expenses of the private college. On appeal, however, the Appeals Court reversed and remanded the case, holding that the trial judge failed to consider all relevant factors in reaching her decision. “It was appropriate for the judge to consider whether the cost of Roger Williams was out of reach for [the father]. However, other important equitable factors were not addressed,” the Court held. “From this record, we have very limited information about [the daughter’s] scholastic aptitude, course of study, or any benefits of attending Roger Williams or any alternate schools, or how they might meet [the daughter’s] goals. In sum, more is required to satisfy the requirement that the judge give appropriate consideration to the parties’ intentions as expressed in the college expense provisions.” 2

It should also be noted that several Massachusetts cases have weighed in regarding the timing of support orders for college expenses. In several cases, the Appeals Court has stated that determination of college expenses (and their shares by the parties) was premature where the minor children were not yet nearing college, absent some special circumstances. 2

If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. 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 Mandel v. Mandel, 74 Mass. App. Ct. 348 (2009).

2 Id., at 357.

3 See, for example, Braun v. Braun, 68 Mass. App. Ct. 846 (2007) and Ketterle v. Ketterle, 61 Mass. App. Ct. 758 (2004).

Challenges Faced by Grandparents Seeking Custody or Visitation

Forget the sappy Hallmark ads depicting grandparental bliss. Forget the press about the important relationship forged between grandparents and grandchildren. When it comes to visitation, grandparents using the courts to assert their rights to see their grandkids face an uphill battle. Count Massachusetts among roughly 20 states with restrictive visitation statutes.

The notion that parents have the right to custody, control and care of their offspring is well-established in law. In a 2000 case[1], the U.S. Supreme Court found a “presumption that a fit parent will act in the best interest of his or her child” regarding whether grandparent visitation should occur.

Under Massachusetts law[2], grandparents may petition a probate court for visitation rights with their unmarried minor grandchild if that minor child’s parents:

  • are divorced;
  • married but living apart;
  • under a temporary order or judgment of separate support;
  • are one or both deceased; or
  • bore the child out of wedlock and paternity has been adjudicated or acknowledged in writing and the parents do not reside together.

The probate court may grant “reasonable visitation rights” to the grandparents, even if the minor child’s parent(s) object, if the court deems, in writing, that doing so serves the minor child’s “best interest.” The statute, however, offers no insights into gauging “best interest.” Moreover, adoption of the minor child by anyone other than a stepparent precludes granting grandparent visitation rights or terminates any such rights that were in effect pre-adoption.

The seminal Massachusetts case[3] on this subject involved a maternal grandfather who sought visitation of the minor child of unmarried parents where paternity had been adjudicated. The mother successfully argued in probate court that the visitation statute unconstitutionally violated her due process rights. The Supreme Judicial Court reversed the judge’s dismissal of the grandfather’s claim and upheld the statute’s validity, but imposed on grandparents the burden of proving “failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.”

The high degree of risk to a minor necessary to rebut the presumption favoring parents deciding their child’s best interest was demonstrated in another Massachusetts case.[4] In that case, the Appeals Court reversed the dismissal of a maternal grandmother’s visitation complaint where the parents didn’t cohabit. The parents had cut off contact between the child and the grandmother, who had previously obtained a restraining order against the father for alleged abusive and harassing phone calls. Grandparent visitation was warranted, the Appeals Court concluded, to deter the possibility of the minor facing isolation from family and physical abuse.

A parent’s death or incarceration often underlies visitation disputes. Courts weighing visitation examine factors, including the preexisting relationship between the petitioner and grandchild, the child’s emotional needs, and the danger of physical or emotional abuse to determine whether the grandparent’s absence would significantly affect the child.

A visitation petition[5] should detail the nature of the grandparent’s relationship with the minor, describe present access to the grandchild, how curbing or denying access significantly harms the minor, and propose a visitation schedule. The minor’s parents must be informed of the petition, which often triggers a court appointment of a guardian ad litem to investigate and offer a recommendation to the court.

If parents abdicate their child-rearing obligations, a grandparent may seek legal custody. No specific statute provides for grandparents to sue for custody. Unless the parents consent, are deemed unfit, or are otherwise unavailable to provide care, grandparents will be hard-pressed to obtain guardianship of their minor grandchildren. Besides foster care and adoption, the Commonwealth does permit a parent to sign a revocable Caregiver Authorization Affidavit that gives a grandparent a concurrent voice with the parent regarding decisions affecting the minor’s health care and education.


[1] Troxel v. Granville, 530 U.S. 57 (2000).

[2] M.G.L. c. 119, §39D

[3] Blixt v. Blixt, 437 Mass. 649 (2002)

[4] Sher v. Desmond, 70 Mass. App. Ct. 270 (2007)

[5] Affidavit of Care and Custody

Custody Disagreements Regarding Religious Upbringing

As the divorce rate of interfaith couples increases, judges are forced to address the issue of “spiritual custody,” determining custody disagreements regarding religious upbringing. Often, religion is something a person holds near and dear, especially during the emotional time of divorce. As such, determining which faith one’s child will be raised is extremely important.

During the divorce or custody process, a judge will award each party with rights based on equitable distribution and a fairness to each party. In custody disputes, the judge has broad discretion to decide what is appropriate for the minor child by applying the “best interest of the child” standard. This standard has been expanded and is now being applied to a spiritual custody disputes.

Under the best interest of the child standard, a judge can use his or her discretion to grant physical custody of the child to one parent, but may find it is in the best interest of the child the non-custodial to be awarded spiritual custody. A child will live primarily with a parent who is awarded physical custody, and thus is the custodial parent. However, if a judge decides the child’s interest is best served by being raised in the non-custodial parent’s faith, this would bar the custodial parent from raising the child in his or her faith.

The notion of “spiritual custody” refers to a parent’s right to direct the religious upbringing and education of the child. As we noted in a previous blog post, the Court does not look at the interests of the parents, the “rights” of the parents, the preferences of the parents, or even the relative morality or lifestyles of the parents—unless it affects the welfare and best interests of the child.  It is important to note that resolving the issue of spiritual custody may directly affect the custodial parents’ rights to the free exercise of religion.

In one Massachusetts case, the Supreme Judicial Court held that the party who sought to restrict the other parents from exposing their children to their religious practices and beliefs has the burden to “demonstrate in detail that exposer to the [mother’s] religion would cause the children ‘substantial injury, physical or emotional, and [would] have a like harmful tendency for the future.’” Kendall v. Kendall, 426 Mass. 238, (1997). The court has added that for the parent looking to restrict the other parent’s religious rights, there must be “an affirmative showing of harm caused by exposure to the conflicting religious teachings.” Id. at 243-244.

Without clear evidence that exposing children to a religion would lead to substantial injury of the child, courts have been reluctant in restricting a parent’s religious liberties. See Lapat v. Lapat, 83 Mass. App. Ct. 1123 (2013). In general, Massachusetts state courts follow the actual or substantial harm standard when ruling in child custody cases involving religious disputes. When applying this standard, the court will only restrict a parent’s First Amendment right to raise their child under the religion of their choosing only if that parent’s religious practice causes actual or substantial harm to the child.

If you have any questions about issues of child custody or support, you may schedule a free consultation with our office. 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.