Alimony no longer deductible: what now?

How will alimony be calculated in Massachusetts, now that for orders entered after 12/31/18 it is not deductible to the person paying? There is no definite answer to that question, unfortunately. Massachusetts statutory law provides that in most situations alimony will not exceed the lesser of 30-35% of the difference in the parties’ incomes or the recipient’s need. However, when that law was adopted in 2012, the assumption was that alimony would continue to be taxed to the recipient and deducted by the payor, neither of which is true for new alimony judgments entered after 12/31/18. The state legislature has made no progress in revising the statute, leaving the issue for the Probate and Family Court to resolve.

With this in mind, in cases calling for alimony, the best approach will be to negotiate an amount of alimony that reflects what would have been the tax treatment pre-2019. Those calculations are more complicated that they may appear, because of the variety of tax brackets that may apply to each party. Attorney Sullivan is prepared to represent either party relative to alimony issues, negotiate and calculate the options, and, if needed, obtain the analysis of a tax professional.

Should I mediate my divorce?

Mediation is a popular process for resolving issues that arise in divorce. But is mediation the right choice for you? The reality is that mediation is not for everyone. It requires that both parties trust each other and be committed to fully disclosing all financial realities of their situation, i.e., income, expenses, assets and liabilities. If one party seeks to use the mediation process to dominate the other, or is has a history of either psychological or physical abuse, mediation is less likely to result in a successful resolution.
The job of a mediator is to assist the divorcing couple in coming to an agreement, but the mediator does not represent the interests of either party, which is why each person should have his or her own counsel to consult with during the process, and to review all documents. Lastly, if you and your spouse have few issues, or have essentially resolved your disputes, then you have less of a need for a mediator than for an attorney to draft documents reflecting your agreement, while also ensuring that you have appropriately addressed all relevant issues to your maximum benefit. Remember, though: no attorney can represent both of you.
Attorney Sullivan is a trained, experienced mediator who is also available to consult with you if you if you are working with another mediator. Please feel free to call the office to discuss the benefits and risks of mediation your circumstances.

Paying for college education

Every parent is concerned about how to pay for their children’s college education. This concern may be magnified when the parents are divorced or divorcing. In Massachusetts, the Probate and Family Court does have authority to determine what portion of a child’s education that each parent will pay. The approaches vary by judge, and, of course, by the parties’ circumstances. Some parents choose to limit their potential obligation to a particular dollar amount, or to the total cost of a state college; others, particularly if their children are young, may choose to defer the determination of their respective contributions until the children are older, because circumstances may change during the intervening years. Depending upon the number of children in a family, the children’s ages, and the financial circumstances, it may also be appropriate to adjust child support when a child enters college. Whatever your circumstances, whether you are in the midst of a divorce, or already divorced, Attorney Sullivan is prepared to guide you through the process of resolving college education expense issues in the best way possible for your family.

I live in Massachusetts, and my spouse lives in another state; does it matter where we file for divorce?

Often, both spouses still live in the same state, perhaps even the same home, when they decide to divorce. However, if a couple has separated, one spouse may have moved to another state. In that case, jurisdictional law will determine where a divorce can be granted. Divorce law varies from state to state, though, and each state has different rules that govern whether it has jurisdiction over a divorce. Typically, the rules focus on where each spouse lives, and for how long, but other relevant factors may be where they each lived when the marriage broke down, where the couple lived during their marriage, and how long each spouse has lived at his or her current residence. The rules are not always as obvious as they might seem. Moreover, state law about some aspects of divorce, such as alimony, child support, parenting time and the factors affecting asset division can vary significantly. For example, in Massachusetts, child support can extend until a child is 23 years old, so long as the child is attending school full-time, but in New Hampshire child support ends at age 18 or graduation from high school. Therefore, in circumstances where it might be possible for two different states to exert jurisdiction over a divorce, the decision of where and when to file may be crucial, and is an important matter to discuss with your attorney.

Will mediation work for me?

If used properly, mediation in a divorce or post-divorce case can minimize both cost and acrimony. Another benefit of mediation is the ability to craft a creative agreement that suits the needs of your family. Are you and your spouse (or ex-spouse) on a level playing field, meaning that neither of you will attempt to use mediation to dominate the other? If so, then mediation may be for you. Ideally, your mediator will be an experienced attorney with mediation training. Also, mediation does not negate the need for each of you to have independent counsel, if only to review the resulting agreement to ensure that it serves your best interests.

Divorce and the family business

When there is a family business, whether one or both spouses operate the business, it is important to determine its value. Depending upon the size and type of business, it may have a very significant value or a negligent value. A specialized appraiser can speak with the business owner, examine the business financial records, and perform an analysis of the value. Often, the appraiser can provide an indication at the inception of his or her work as to the likelihood that the business has significant value. A divorce attorney works closely with the appraiser to ensure access to a appropriate and complete set of information for the appraisal. Of course, a business also provides a stream of income; if the parties disagree about the extent of that income, the appraiser may also be retained to analyze the owner income.

Why do I need an attorney for an uncontested divorce hearing?

People sometimes wonder why they need representation at an uncontested divorce hearing. By that time, an agreement has been signed and all issues have been resolved between the parties. However, what people sometimes overlook is that the agreement will not be entered as a judgment of the court unless and until a judge has found it to be fair and reasonable under the particular circumstances of the case. Often, an agreement that appears unfair on its face, and therefore is vulnerable to rejection by a judge, could have been approved if an attorney, or preferably, attorneys for both parties, had been present in the courtroom to offer an adequate explanation. In addition, a judge is more likely to approve an agreement if she or he sees that the parties have been represented by competent counsel and received the benefit of that advice. No one wants to appear in court with an agreement that is rejected by a judge, with instructions to return with a revised agreement. The best way to present such a result is representation of by counsel.

I am recently separated; how will I know whether I will receive alimony, and for how long?

Massachusetts substantially modified its alimony law in 2012.  As a result, courts were provided with more guidance about the circumstances under which alimony should be awarded, the length of time that alimony should be paid, and the events that should trigger a termination, reduction or suspension of alimony.  Typically, alimony will not exceed the recipient’s need or 30 to 35% of the difference in the parties’ gross incomes.  However, there are exceptions, and the court may deviate from that formula under some circumstances.  The duration of alimony typically depends upon the length of the marriage, i.e., the longer the marriage, the longer the term of alimony.  Moreover, Massachusetts now recognizes several categories of alimony:  rehabilitative, reimbursement, transitional and general term alimony.  Because of the intricacies of this law, the interplay of alimony with other divorce-related issues, and the wide array of interpretations within the court system, it is wise to discuss your circumstances with an attorney to determine how the law applies to your particular circumstances.

Abuse Prevention Orders (aka restraining orders)

Massachusetts has a statute that authorizes the courts to protect someone who has been abused or threatened with abuse from a family member or household member. Abuse is defined as physical harm, being placed in fear of imminent serious physical harm, or being forced to engage involuntarily in sexual relations. The abused and abuser must be family or household members, the definition of which includes people who have been in a “substantive dating relationship,” people that “are or were related by blood or marriage,” and people who have a child in common regardless of whether they have ever been married to each other or lived together. A violation of an abuse prevention order is considered a crime. A 2012 amendment to the statute added protection for domestic animals; this change in the law made a lot of sense, because many abusers harm household pets, or threaten to abuse the pet, and use the presence of the animal to keep the abused person from seeking assistance. If the abuse occurs when the courts are closed, which often is the case, the local police can assist by obtaining an order from the emergency judge on call, which is always available. While rational people typically comply with court orders, an abuse prevention order will not stop someone who is irrational or truly intent on harming another person, so it is always wise to seek counsel and take all steps to protect both family and pets.

Can men receive alimony?

Massachusetts has an Equal Rights Amendment so the law is gender neutral in the sense that requires the courts treat people equally without bias based on gender. This means that men, as well as women, can be eligible to receive alimony. Typically, alimony is paid by the primary provider for the family. This means that if the wife was the major income earner during the marriage, she could pay the husband alimony. However, many factors are considered when considering an alimony claim and it should be noted that alimony is not awarded automatically.