We recently posted a lengthy review of the the Massachusetts SJC decision in Cavanagh v. Cavanagh (2002)  and a similar overview of the subsequent SJC decision Openshaw v. Openshaw (2024) .  Both of these cases had significant rulings that should be reviewed in child support and alimony cases in Massachusetts.  Here, though, we want to focus on just one area these decisions have affected: how best to complete the court form Financial Statement in divorce cases. When completing the income section of the Financial Statement, people often struggle with how to deal with variable income and how to accurately address deductions from income.   The Financial Statement includes spaces for many times of income but it assumes the number is static.  For bonus, commissions, or second job income (which was an issue in Cavanagh), the income is often variable over time.  This is where we encourage our clients to use endnotes to explain any variability or expected chan...

April Showers Brought May Flowers: How the Openshaws Prepared for Rainy Days Ahead  by Nathaniel Butzke      Just in time for the rainy season, the Massachusetts Supreme Judicial Court shed new light on what it means to "live" a certain lifestyle as a married couple and how those habits should be reflected in post-divorce alimony. The case, Openshaw v. Openshaw (2024) , revolved around a couple who, during their marriage, didn't just focus on living well but also on saving wisely. When their marriage came to an end, the question arose: should their habit of saving be considered part of their marital lifestyle for the purposes of determining the appropriate amount of alimony?      The court's answer was a resounding YES . In essence, the court argued that saving isn't just a financial strategy; it's a way of life. For the Openshaws, who enjoyed a generous annual income far exceeding their living expenses, setting money aside wasn't merely about preparin...

Cavanagh v. Cavanagh - The Case, the Conundrum, & the Consequences Introduction by Nathaniel Butzke More than a year after its release, the Massachusetts SJC decision in Cavanagh v. Cavanagh (2002) remains a topic of discussion at every Massachusetts family law and mediation conference.  The decision had many ripple effects, still being felt on the beachhead of every divorce case involving child support or alimony. Following is an in depth review of the case and some of those effects. Introduction: In divorce proceedings, determining alimony awards is a complex process that requires careful consideration of various factors. Judges tasked with making these decisions must weigh the financial circumstances of both parties, ensuring that the supported spouse can maintain a lifestyle similar to that before the divorce, and children have access to similar households in either parents' care. However, interpreting the law governing alimony can present practical challenges, especially ...

UPDATE: The MA SJC weighed in on this issue with a definitive "yes": in  Openshaw v. Openshaw - Massachusetts SJC Rules that when savings was part of the marital lifestyle then a judge may consider that history in determining a recipient's "need" for alimony in divorce: The SJC ruled that when the court finds that "ongoing, regular saving was part of the couple's standard of living during the long-term marriage and that the parties' combined postdissolution income is adequate to allow both spouses to maintain the standard of living enjoyed during the marriage" then a "judge may account for a divorcing  couple's custom of making regular contributions to their savings plans in determining, under G. L. c. 208, § 53 (alimony statute or § 53),  the amount of alimony needed to maintain the marital lifestyle." Original Post: In Massachusetts, Alimony is defined by the Alimony Reform Act of 2011 (the "Act").  We've previ...

How long is a marriage? It’s a seemingly straightforward question, but divorce and alimony laws over the years, and the complexities created by overuse of the courts, have complicated the issue. The Balistreri case , which came down from the Massachusetts Appeals Court on June 29, 2018, clarifies the question somewhat. The alimony statute defines the length of a marriage as “the number of months from the date of the legal marriage to the date of service of a complaint or petition for divorce or separate support.” M.G.L. c. 208 §48 . Balistreri addresses situations where there may be more than one complaint for divorce or separate support floating around. This may be because of hastiness to go to court before other options have been explored, which then lead to a resolution of an issue, so that the complaint is abandoned and does not result in a judgment. It may also be because parties may first file a complaint for separate support before following through with a complaint for div...

While the definition and formula for alimony varies widely by jurisdiction, the payor and recipient's respective incomes are the key information in determining need and ability pay.  So it's no surprise that a key question in alimony disputes is whether the potential payor or potential recipient can earn more income than they currently are earning (or reporting).  In addition, sometimes spouses are concerned that the typical formulas used to calculate alimony will disincentive the payor or recipient from earning additional income because the additional income would then change the alimony amount. This was the subject of a recent question on the Massachusetts Bar Association's My Bar Access online forum .  The question focused on how to address this incentive in a case where the recipient (wife) was self-employed and the payor (husband) believed that the recipient was underemployed and could earn more.  The mediator was asking for ideas on how to build incentives in...

The Tax Cuts and Jobs Act (President Trump's tax reform passed at the end of 2018) ended the alimony tax deduction for divorce agreements starting on January 1, 2019.  For an explanation of this tax law change see our previous post:  The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty” . In Massachusetts our alimony statute includes a formula for calculating the maximum general term alimony in a divorce case.  However, this formula was created with the intention that alimony was tax-deductible to the payor and taxable income to the recipient.  Under §53 general term alimony is capped at the recipient’s “need” or 30-35% of the difference in the parties’ gross incomes.   Since the act was passed, the courts have clarified that “need” is a relative term and must reflect the parties' marital lifestyle in addition to other mandatory considerations contained in § 53(a).  For a more in depth analysis of the statute and subsequent cases, s...

by Valerie Qian & Justin L. Kelsey The Alimony Reform Act of 2011 defined what alimony is and how it should work in much greater detail than the prior law.  The Alimony Reform Act, 2011 Mass. Acts ch. 124. However, it also left many questions unanswered. In the six years since the Act became effective, on March 1, 2012, the courts have slowly been further clarifying, and in some cases arguably undercutting, the Act.  In this article, we will summarize the provisions of the Act and note the court cases that have affected the language of those sections. Alimony: What is it?  Alimony is defined in the Act as ' the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.' Mass. Gen. Laws ch. 208 §48 (2012) [hereinafter §48]. Since March 2012, the courts have made clear that this is how the law has defined alimony even prior to the Act, and the Act did not cha...

Guest Post from Valerie Qian* Does it make a difference for my legal rights if my spouse and I lived together before we got married? The lawyerly answer, which I know is one most people can’t stand, is “it depends.” The Bortolotti v. Bortolotti case, a 1:28 unpublished decision that came down from the Appeals Court in April 2018, sheds some more light on this situation. The relevant statute, M.G.L. c. 208 §48 , provides that the legal length of a marriage may be extended by periods of cohabitation if the parties had an “economic partnership” during these periods of cohabitation. The Bortolotti decision clarifies that “economic partnership” exists both in situations where both parties contribute income to the household, and in situations where one party may be economically dependent on the other. The decision further notes that when a judge exercises her discretion to exclude premarital assets from the marital estate, she should use a valuation of those assets at the time of the ...

As we have previously covered here,  The Tax Cuts & Jobs Act of 2017 Includes a Divorce “Penalty”  for divorces that take place after December 31, 2018 if they involve alimony.  Prior to this act, and up until December 31, 2018, alimony was tax deductible to the payor and taxable income to the recipient, which allowed for a shifting of taxable income to a lower tax bracket.  If an agreement is entered prior to the end of 2018, and this benefit is preserved, then it continues into future years, even if the amount is later modified.  This has led many couples, already in the divorce process, to consider whether they want to work on finalizing their case prior to the end of 2018 to preserve this option. Because some states, like Massachusetts, have waiting periods for finalizing a divorce, this law change raised a question: Does the deadline of December 31, 2018 apply to the divorce being finalized, or just having a written agreement completed? The answ...