This past June, in a landmark decision, the US Supreme Court found the Defense of Marriage Act (DOMA) unconstitutional, declaring that that same-sex couples who are legally married in a state recognizing same sex marriage deserve equal rights to the benefits under federal law that go to all other married couples. This decision is widely seen as striking down DOMA in favor of marriage equality, but of course it’s more complex than that and the ramifications are now unfolding.

The latest major change as a result of the DOMA decision is that the IRS now will recognize same sex married partners as married regardless of the state in which they reside, thereby requiring that such couples file their federal income tax returns as either married filing jointly or married filing separately; they can no longer file separately as unmarried individuals (same as for heterosexual married couples). The IRS is also allowing such couples to file amended income tax returns for prior years in which they may have paid too much as a result of filing separately, but they do not have to file amended returns if doing so would result in higher taxes than they paid. This is indeed welcomed news for all such parties.

One wrinkle however is that such couples, if residing in a state which does not recognize same sex marriage after having been legally married in a state which does, may be required to file state income tax returns separately, a complication augmented by the fact that state income tax filing generally follows from federal. Still, overall this is a progressive move.

Another complication is that, while this key component of DOMA was overturned, another major component remains: Section 2 of DOMA declares that those states which do not recognized marriage equality (same sex marriage) do not have to recognize any same sex marriage from states which such marriage are legal. This not only informs the tax code as referenced above, but also can complicate divorce proceedings for same sex couple residing in a state which does not recognize same sex marriage. How so? If a couple is not recognized as legally married in a given state, then that state can deny that couple the right to divorce since, according to state law, they are not married to begin with. Furthermore, they cannot return to the state where they were married for the purpose of seeking a divorce since all states require residency for such proceedings. This would mean that such a couple would have to uproot themselves from their current state of residence and re-establish residency in the state in which they were married prior to seeking divorce.

On Monday, September 26, 2011, Governor Deval Patrick signed into law Chapter 124 of the Acts of 2011, An Act Reforming Alimony in The Commonwealth. This law sets new limits on alimony in Massachusetts, sharply curbing lifetime alimony payments in divorce cases and making a series of other changes to a system that critics considered outdated. Below is a summary of the law. See my blog post of May, 2012 for a discussion of the implications of the new law.

  1. Alimony Term Limits
    • Long term marriages (more than 20 years): Alimony will end at retirement age as defined by the Social Security Act.
    • 5 years or less: Maximum Alimony term is 50% of the number of months of marriage.
    • 10 years or less but greater than 5 years: Maximum Alimony term is 60% of the number of months of marriage.
    • 15 years or less but greater than 10 years: Maximum Alimony term is 70% of the number of months of marriage.
    • 20 years or less but greater than 15 years: Maximum Alimony term is 80% of the number of months of marriage.
    • Other term limits apply for "Rehabilitative Alimony, "Reimbursement Alimony", and "Transitional Alimony".
  2. Second Wife’s (Husband’s) Income and Assets Excluded
    "In the event of the payer’s remarriage, income and assets of the payer’s spouse shall not be considered in a re-determination of alimony in a modification action."
  3. Co-Habitation Suspends, Reduces, or Terminates Alimony
    "General Term Alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payer shows that the recipient has maintained a common household with another person for a continuous period of at least three months."
  4. Child Support: Gross Income is Excluded From Alimony
    For purposes of setting an alimony order, the court shall exclude from its income calculation gross income which the court has already considered for setting a child support order…"
  5. Child Support: Alimony Term is Co-Terminus with Child Support
    "Where the Court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support. "
  6. Alimony Amount is Limited
    "… the amount of alimony should generally not exceed the recipient’s need or 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued."
  7. A Second Job or Overtime Income is Not Included in Alimony Modification
    "Income from a second job or overtime work shall be presumed immaterial to alimony modification if:
    (1) A party works more than a single full-time equivalent position; and
    (2) The second job or overtime commenced after entry of the initial order."
  8. Payment of Health Insurance and/or Life Insurance Reduces Alimony Payment
    In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for General Term Alimony and Rehabilitative Alimony upon written findings that deviation is necessary. Grounds for deviation may include:
    (3) Whether the payer spouse is providing health insurance and the cost of health insurance for the recipient spouse;
    (4) Whether the payer spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
  9. Alimony Term Extensions Are Limited And Require Clear And Convincing Evidence
    "The court may grant a recipient an extension of an existing alimony order for good cause shown. In granting extension, the court must enter written findings of:
    (i) A material change of circumstance that occurred after entry of the alimony judgment; and (ii) Reasons for the extension that are supported by clear and convincing evidence.
  10. Alimony Ends with the Remarriage of the Alimony Recipient

We all know the expression, nothing is inevitable but death and taxes. Federal and state income taxes are not only inevitable, but complicated by a divorce proceeding. If you and your spouse are in the process of getting divorced, the question arises, how should you file your taxes? According to the IRS, so long as you are married, you must file as married. The choice is whether to file jointly or separately. One spouse cannot force the other to file jointly.

But the situation is trickier once the divorce has been granted. Assume that you were divorced in December. Can you then file jointly for the year, during most of which you were married? No, you must file an individual return for the entire year. The IRS is clear on this, stating in Publication 504 that one is considered to be single or unmarried for the entire year even if divorce was granted on December 31. What are the implications of this rule? When a married couple files a joint return, both spouses are held jointly and individually liable for all interest and/or penalties due on that joint return. It does not matter who earned the income; a spouse who did not earn any income may still be held liable for all due taxes on the other spouse’s earned income. Your Separation Agreement may even specify that your former spouse will be liable for any taxes or penalties due on your joint return, but the IRS under Publication 504 may still hold both parties jointly and individually liable for any amount owed.

What about claiming your child(ren) as dependent(s) on your return after the divorce becomes effective? Only one parent may claim dependency of a child, and there are any number of factors which play into this determination. Child dependency is normally declared in the Separation Agreement. If you and your spouse have more than one child, they may be divided between the households. Your Separation Agreement may specify alternating years as the custodial parent, so that one year you may claim your child, and the next year your ex can claim that child. According to the IRS definition, the custodial parent is the parent with whom the child lived with for a longer period of time during the year, counted by number of nights spent in that parent’s care. What if a child lived an equal length of time with both parents? In such a case, the IRS guidelines state that the parent with the higher adjusted gross income can claim the child as an exemption.

There are many other factors, including the language of the Separation Agreement, as for instance if the Separation Agreement declares that the “noncustodial” parent is supposed to claim the child on his or her tax return? In order to satisfy such an arrangement, the child dependency exemption has to be transferred from the “custodial” parent to the “noncustodial” parent, requiring that several conditions be met for the IRS to accept the change. Obviously, such details need to be worked out in advance with the advice and guidance of an experienced divorce attorney.

Federal IV-D regulations require uniform child support guidelines of every state, and 45 C.F.R. § 302.56 further requires that each state review those guidelines every four years. The Massachusetts Trial Court’s revised Massachusetts Child Support Guidelines, effective August 1, 2013, were recently announced and are available online at the Massachusetts Department of Revenue’s website, as well as the Child Support Guidelines Worksheet. They are also available on my website: Guidelines and Worksheet.

According to the Massachusetts Trial Court’s press release dated June 20, 2013, Chief Justice of the Trial Court Robert A. Mulligan stated that the revised Child Support Guidelines were based on the comprehensive review by the Child Support Guidelines Task Force he appointed in 2012. Probate and Family Court Chief Justice Paula M. Carey chaired the Task Force that conducted the review. Trial Court judges use the Child Support Guidelines “in setting temporary, permanent or final orders for current child support; in deciding whether to approve agreements for child support, and in deciding cases that are before the court to modify existing orders.”

Summary of Key Changes to the Existing Guidelines

The 2012 Child Support Guidelines Task Force recommended a number of clarifications and changes. Some are minor, while others represent new or modified provisions. The most significant include:
While the 2012 Child Support Guidelines Task Force recommended a number of both minor and new or modified provisions, the most significant changes include the following items (list quoted from the Trail Court press release):

  • Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
  • Availability of employment at the attributed income level must be considered in attribution of income cases.
  • The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship.
  • Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
  • Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
  • A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.
  • Guidance and clarification is given in the area of child support over the age of eighteen where appropriate. While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
  • The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013).
  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.

Questions concerning these changes or any provisions of the Massachusetts Child Support Guidelines should be discussed with an experience divorce attorney.

After a divorce, there are often stresses in a child’s life which an adult may overlook. One of the chief stresses can be the transition from your home to your ex-spouse’s home, whatever the time interval (every few days, weekends, several weeks). This is a constant disruption to a child’s life, and a persistent reminder of the family breakup. So how to best assist your children during these moves?

We can split these transitions into two broad areas: When your child is dropped off, and when your child is picked up. You and your ex should agree upon these basic guidelines to help your child adjust to the changes.

As we see played out in TV and movie dramas over and over, parents may have a difficult time in letting go at the appointed hour. But remember this is about the child, not the parents. So ease this time by adhering to the schedule, departing and delivering your child on time as agreed. Remind your child a day or two before the move so they have time to prepare and be ready for the change. Help them pack, including a favorite toy or game, outfit, or other items that are familiar and comforting. Do not wait until the last minute and rush packing, but be ready well in advance. If at all possibile, drop off your child, rather than having your spouse pick them up, so that you avoid the risk of disrupting some special moment or connection.

When your child comes back from your spouse, again, it’s better that your spouse drop the child off rather than you go to pick the child up. This way your child gets to complete their time with their other parent without interruption. Ask your child what they want to do: spend some intimate time with you doing some favorite activity like reading, cooking or playing; run out to play with friends they’ve missed; or settle into being home with the TV and pets. Give them time and space if they need it, but stay nearby and attentive. Remember that children like routine and patterns, which give them a sense of safety and wellbeing, so establish a “return routine” such as game playing, visiting the playground, or serving a favorite dinner which your child can help prepare.

Watch for signs of stress and anxiety. Some children will adjust to these changes better than others (with much depending on how the parents act and react), so if your child shows any distress or anxious behavior, consider with your ex the benefits of counseling for your child.

Massachusetts was the first state to legalize same sex marriage, back in 2003, with the first same sex couples marrying in 2004. Now nine states and the District of Columbia have legalized same sex marriage and people talk of a “sea change” in marriage in the US (and, indeed, elsewhere, as similar changes have been underway in other countries, particularly in Europe). This raised the question of the constitutionality of DOMA, the Defense of Marriage Act, passed by Congress and signed into law by President Clinton (who has recently spoken out in opposition to the law) in 1997. In all, there are some 1,100 federal marriage benefits denied to all same sex married couples, regardless of whether they were legally married according to their state law. Beyond the questions of marriage benefits, however, there are also questions regarding the dissolution through divorce of any same sex marriage.

Obtaining a divorce for same sex couples is an area replete with difficulties, including issues of jurisdiction for divorce (your state may determine divorce based on residency, which will prevent the Commonwealth of Masschusetts from having jurisdiction to grant divorce even if the marriage was originally performed in Massachusetts), and a great many limitations on “standard” divorce practices due to the fact that same sex marriages are not recognized at the federal level. These limitations may include alimony, pension divisions, and limitations on bankruptcy provisions. This is an area where a very experienced divorce lawyer is often required.

A separation agreement is an agreement between two married people to live apart for an unspecified period of time, perhaps forever. Generally, a separation agreement covers alimony; child support and custody arrangements if there are children; payment of bills and management of separate bank accounts; and may also determine division of property if the separation appears permanent. If the couple reconciles, the separation agreement is voidable (can be cancelled) by the parties. However, most separation agreements are interim agreements to serve between the time of separation and the eventual divorce of the parties.

This raises the question of what becomes of the separation agreement upon a judgment of divorce. Separation agreements are said to either “merge” or “survive” divorce, meaning that either the agreement is merged into (becomes part of) the divorce judgment, or, while its terms are incorporated into the divorce judgment, the agreement remains a separate and independent legal contract.

When a separation agreement is “merged” into a judgment of divorce, its terms are modifiable by the court (which retains the power to revise or modify its previous judgment). Thereafter, the “merged” separation agreement has no separate legal standing.

However, when a separation agreement “survives” a decree of divorce, it stands as a contract between the parties and can be enforced in civil proceeding in Superior Court or Probate Court, and any violation of the agreement is enforcible under the contempt power of the Court.

In many cases, it is not as simple as “merge” vs. “survive” as some parts may be treated separately. In almost all circumstances, child related provisions merge and/or change. Property division usually survives. Alimony and, increasingly, health insurance provisions may be handled in a merge.

We all know that divorce is one of the hardest experiences in life, especially for young children who cannot understand why mommy and daddy are suddenly separated and their family life torn asunder. There are altogether too few resources to help children adjust to these drastic changes, although more are appearing each year. Sesame Street now offers a Divorce Toolkit for Parents and Children which may provide some valuable assistance for you and your young family,entitled Little Children, Big Challenges: Divorce.

The Toolkit includes components for Caregivers and Families, a Storybook, Songs, Downloads, and Videos. You might want to review these components yourself or with your spouse before presenting them to the kids. Simple activities such as a divorce coloring book can help your children adjust in this trying time.

You have divorced and the court has determined child support and visitation/parenting rights and obligations. Subsequently your company relocates your job outside of Massachusetts. If you keep your job and relocated out of state, your available parenting time will be reduced; however, if you quit your job to remain in Massachusetts, you will at least temporarily be unable to fulfill your child support obligations due to the reduction in your income. What options exist and what is your best decision, to move or quit your current job?

First of all, such circumstances require the consultation of an experienced divorce attorney who can weigh the considerations and legal obligations and help you make the best decision. In large part, this will be determined by the exact language of the court’s order regarding your obligations and whether a modification of the divorce order would be appropriate and available to you. Assuming this goes in your favor, you can then decide how important it is to you and to your children to remain nearby for more frequent visitation.

You will need to file a Notice of Intent to Relocate with the court prior to your move if you do decide to keep your job and relocate. You will continue to be entitled to parenting time in accordance with child custody laws under the section when distance is a factor, although distance will limit the actual amount of time you can spend with your children.

Under such circumstances, your notice to relocate will need to include a statement as to the impact of the relocation on your parenting time and any changes you propose for exercising parenting time.

As the song has it, “Money changes everything.” Without a doubt, one of the most frequent causes of divorce is financial discord between the partners. One or both spouses’ debt may become unmanageable, whether through indulgence or carelessness, or through unfortunate circumstances beyond one’s control. As the mountain of debt soars higher, personal and marital stress may also increase, leading to partners deciding to part ways.

As you no doubt have seen, whether in personal experience or in the movies, much of divorce proceedings may focus on property division, but debt division can be equally contentious, especially where two marital partners are equally responsible for the debt, even if that debt was incurred by only one of the spouses. So what happens in divorce? Generally, debt is divided in the same manner as assets; that is, the court aims for equitable division of debt.

Thus, debt that is acquired during the marriage (and possibly leading up to the marriage) will be equally divided….maybe. Many factors come into play, and you should most definitely discuss your unique circumstances with a qualified divorce attorney. For example, a short-term marriage may not hew to this rule of thumb. Other exceptions include cases where one spouse garners debt through spending money on an extramarital affair, where the other spouse should not be obligated to repay that debt, or where one spouse has a gambling habit and has gambled his or her way deep into debt (however, if the other spouse had knowledge of the gambling habit, and benefited therefrom when the first spouse was winning, a judge may find that the debt should be divided equally between the partners).

These are but a few examples. As a very complex and vital area in a potential divorce proceeding, the only good advice is to seek the counsel of a qualified divorce lawyer to examine your circumstances in depth.

High Tech has added an arsenal of technical gear to spy on a spouse suspected of adultery, from GPS tracking of cars and cell phones to video recording and computer spyware. These advances in technology bring up the important issue of the legality and advisability of such spying.

While it may be tempting to use such techniques, or even something as apparently innocuous as logging onto a spouse’s computer to review their Internet history, there are serious legal ramifications since such activity is, generally, illegal in itself. According to Federal law, 18 U.S.C. § 1030, it is a crime to access someone’s computer without authorization, and that includes spouses and children over 18 years of age (parents do have the right to access their underaged children’s computers). Since cell phones are effectively small computers, the law can be extended to include accessing the history of someone’s phone calls, although that is not expressly defined. While this has not been interpreted by Massachusetts court in a divorce setting, the Federal law takes precedence, and someone who spies on a spouse in this manner is violating the law.

Another new technology, GPS tracking, can be used to place a tracker on a spouse’s care, but this may be considered stalking, and in Massachusetts following another person three or more times can be considered stalking. Other states have implemented laws regarding stalking via GPS tracking, and Massachusetts may follow suit.

Massachusetts law defines a right of privacy, defined in G.L. c.214 § 1B. Although the right is privacy is enforced through civil, nto criminal, proceedings, it nonetheless should give one pause before spying on a spouse. Indeed, judges do not want to reward illegal activity of any kind, and such spying may backfire on the spy rather than the one spied upon, denying the admission of any evidence found by illegal surveillance.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262