The Massachusetts Alimony Reform Act of 2011 has been passed by both the House and the Senate and now awaits the Governor's signature. Once it is passed, which is almost assured at this point, there will be many questions about how it is implemented. The one I am receiving most often already is:

How will alimony be calculated in cases with child support?

The section of the Alimony Reform Act that addresses this question is Section 6(c):

"For purposes of setting an alimony order, the court shall exclude from its income calculation:

(1) Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and

(2) Gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts Child Support Guidelines or otherwise; provided that nothing in this section shall limit the court’s discretion to cast a presumptive child support order under the Child Support Guidelines in terms of unallocated or undifferentiated alimony and child support."

As indicated, the Alimony Reform Act would exclude from any General Term Alimony calculation gross income which was already used to calculate child support. Since the Massachusetts Child Support Guidelines presumptively apply up to a total gross income of $250,000, many practitioners read this section to mean that any cases where the total gross income does not exceed $250,000 will not have alimony if they have child support. This is the most obvious reading of the section, and was the intention as described by one of the drafters on the Joint Task Force at a recent conference I attended (I won't call her out by name but she is a lawyer who clearly understood the implications).

There has been some outrage over this interpretation because it is one of the most significant changes this law makes to presumptive alimony in child support cases. However, there are exceptions, which I will detail below.

Before I tell you the exceptions, though, let's examine if this is truly unfair (or at least inconsistent with the rest of the Act):

Sample Case:

The Act contains a formula for calculating the maximum alimony award as follows: "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."

This means that if the higher-earning spouse (let's use the name Chris) earns $125,000 and the lower-earning spouse (Pat) earns $25,000 in gross income, then alimony should not exceed $30,000 to $35,000 per year. This assumes no child support, that Pat has a need for support, and that the marriage is of sufficient length to warrant support. If we use the average of $32,500 then Chris' after payment income is $92,500 and Pat's is $57,500, and all of Pat's $57,500 will be taxable income. Assuming an effective tax rate of 15%, Pat ends up with $48,875 in net income.

Now let's add children. Chris still earns $125,000 and Pat earns $25,000. Chris is the non-custodial parent and Pat is the custodial parent. Child Support by the guidelines (assuming no other expenses for simplicity) is $510 per week, $26,520 per year. Since all of Chris' income was taken into account for child support guidelines, the Alimony Reform Act would indicate that none is left to consider for alimony. Chris' after payment income is $98,480 and Pat's is $51,520, but only $25,000 of this is taxable income to Pat. Again assuming an effective tax rate of 15%, Pat ends up with $47,770 in net income. In addition, Chris is still paying tax on $125,000 in income.

As you can see, although Pat is receiving almost $6,000 less in support, when you take into account the taxation of alimony vs. the tax-free nature of child support, the effective support that Pat is receiving from child support is only about $1,000 less. And this difference is not necessarily going to Chris, rather it is being taxed by Uncle Sam.

Given the tax-free nature of child support to the recipient, in cases where all of the income is considered in calculating child support, the Alimony Reform Act's exclusion of that income from calculating alimony is consistent with the caps that they have proposed on total support. Of course, these numbers won't work out the same at all income levels. The differences will be greater as the gap in incomes becomes greater. And while it may seem foolish to pay that extra money to the tax-man, the drafters did provide for an alternative by allowing the Judges to have discretion on assigning some of child support as unallocated support.

Exceptions:

Furthermore, there are exceptions which can also help crafty attorneys get around this child support limitation in the Alimony Reform Act. In setting any alimony order the Judges are not completely limited by this formula and can vary depending on numerous circumstances:

"Grounds for deviation may include:

(1) Advanced age; chronic illness; or unusual health circumstances of either party;

(2) Tax considerations applicable to the parties;

(3) Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;

(4) Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;

(5) Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;

(6) Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;

(7) A party’s inability to provide for his or her own support by reason of physical or mental abuse by the payor;

(8) A party’s inability to provide for his or her own support by reason of a party’s deficiency’s of property, maintenance or employment opportunity; and

(9) Upon written findings, any other factor that the court deems relevant and material."

Aside from the fact that there is a broad catch-all in number 9, the most obvious and useful tool in arriving at a more fair balance of child support and alimony in any case is deviation factor number 2: Tax considerations applicable to the parties. In the example used above, even if Chris and Pat have children, restructuring the support paid by Chris to include some alimony and some child support could result in better tax treatment for the family overall, and greater net income for both.

The Alimony Reform Act simply puts the burden on parties to show these tax considerations to the Judge to assist them in deciding what cases are appropriate for variation. The Judge can then deviate from the guidelines completely, or choose to use a portion of Chris' income in calculating child support and a portion in calculating alimony, a result still consistent with the Section 6(c) limitation.

This ability to deviate, built into the Act, means that the child support limitation is not as limiting as some fear.

The Catch

Yes, there is always a catch. The problem in reaching agreements or judgments that split the total support payment between child support and alimony is that both of these types of payments have different duration. Under the Act, alimony duration is limited by a formula dependent on the length of the marriage, whereas child support duration is limited by the emancipation of the children. These dates may coincide but most likely will not, and the needs of either the children or the lower-earning spouse will need to be taken into account in creating such a deviation.

Finally, as with the rest of the Act, once it becomes effective we will have to see how the Courts of the Commonwealth implement it. Despite our opinion that the reading of this child support section is clear, we are  not on the Appeals or Supreme Court and until they rule there is certainly room for interpretation.

For more information about the Alimony Reform Act of 2011 check out MassAlimonyFormula.com

Click here for a Massachusetts Child Support Guidelines Worksheet.

Thank you to Julia Rueschemeyer for inspiring us to finally write this post.

Every divorce case is different and every case will therefore have different costs. For instance, if you are Tiger Woods your costs could include the loss of endorsement deals, in addition to the more typical costs of attorney's fees, alimony, etc. And that's not even taking into account whether or not you think his poor playing of late is also caused by the stress of his divorce.

To generalize for those of you who are not billionaire celebrities, though, I can tell you that there will still be significant costs to getting divorced and they will include:

1. The Emotional Cost: Divorce is often described as the second most stressful event in a person's life (next to the death of a loved one). We can't ignore that stresses in our life have a cost on our daily productivity, our ability to be optimistic, and our availability to deal with other stressful events. This cost is often best addressed through therapy or family support, and just because it can't be fixed through the legal process doesn't mean it should be ignored.

2. The Financial Cost: The financial price of your divorce has two parts: the cost of splitting up joint finances, and the actual price you will pay to become divorced.

2a. Joint Finances -> Individual Finances: It is a simple fact that it costs more to support two households than one. Whether or not your case warrants child support or alimony, there will still be a cost to dividing up the assets and liabilities that you and your spouse shared during the marriage. Many people will need to learn how to manage their finances, because this is something that their spouse used to do. Even if you helped manage the finances, you will need to consider how your budget will have to change now that you only have access to a portion of the assets you once did. This should include changing how you plan for retirement. All of this begins with a true, accurate and complete Financial Statement. A good Financial Statement is not just a tool for the Court, but can also help you and your attorney figure out how you will meet your budget as a single person.

2b. The Pricetag: And finally, the most obvious cost of divorce is the actual out-of-pocket cost to obtain the Judgment of Divorce. In Massachusetts, the Filing fee for divorce is currently $215 ($200 + $15.00 surcharge), and an additional $5 for the Summons if you filed a Complaint for Divorce instead of a Joint Petition.

In addition to the filing fee, if you hire an attorney their rates and fees can vary greatly. I always recommend that my potential clients interview multiple attorneys. Although cost is certainly one factor, it is my opinion that trust is the most important factor when interviewing an attorney. If you can't trust your attorney, then they won't be able to do their job and you will end up spending more money in the long run anyway.

To learn more about what we charge for Divorce, call Attorney Justin L. Kelsey, Esq. at (508) 655-5980 or click here to schedule a free one-hour consultation.

Today, June 24, 2010, the day of the iPhone 4.0 release, many, many Apple devotees are waiting in line, no doubt playing games, checking e-mail and surfing the web on their 3GS until they get their hands on the newest iPhone. Well, whether or not you've braved the lines to be the first to have the new device, you can still download the Kelsey & Trask, P.C. Web-Apps and iPhone Apps. (see the end of this post for instructions on how to access these apps on other smartphones as well)

iPhone Apps:

The Child Support Calculator App

Use this worksheet to calculate the presumptive amount of child support to be ordered by the Probate & Family Courts in Massachusetts based on the Massachusetts Child Support Guidelines (including all of the calculations required for filling out the court form). You can then save your calculations, and even e-mail them.





Must have app for Family Law Attys - ★★★★★
Review by Mass Attorney

Must have app. Quickly calculate child support according to the guidelines and try different income scenerios.


The Divorce Spousal Support Calculator App

Some states use formulas to calculate presumptive alimony. And notwithstanding the lack of legislative support, some Judges in Massachusetts have suggested doing the same. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible.



All of these formulas are included in this calculator, which we believe can be a valuable resource in helping parties understand a reasonable potential range of spousal support orders.


In addition, you can access the full Article (The Divorce Spousal Support Calculator: An Alimony Formula Resource and Tool for Computing Suggested Alimony Payments in Divorce Cases) directly from the App by clicking on the Settings button in the lower left-hand corner of the App.

Similar to the Child Support Calculator App, you can also save and e-mail your calculations.







The Chapter 7 Means Test Calculator App

The means test is a test required under the new bankruptcy law to determine a debtor's eligibility to file for bankruptcy under Chapter 7 of the Bankruptcy Code. If your income is greater than the median income for your state of residence and family size, in some cases, creditors have the right to file a motion requesting that the Court dismiss your cases under Section 707(b) of the Bankruptcy Code.

Use this App to determine whether you qualify for Chapter 7 bankruptcy under part a of the Chapter 7 Means Test. You can even save or e-mail your calculation to access it later. If your income is greater than the median income for your state of residence and family size, you still might meet part b of the means test after taking into consideration certain expenses and deductions as defined by the Bankruptcy Code. You should consult with an attorney to determine your eligibility.


Web Apps:

These three Apps are also available as Web-Apps and can be accessed directly on our mobile site or through the Apple Web-App Store.

The Child Support Calculator Web-App
   - Direct Link: http://mobile.kelseytrask.com/childsupport.htm

The Divorce Spousal Support Calculator Web-App
   - Direct Link: http://mobile.kelseytrask.com/spousalsupport.htm

The Chapter 7 Means Test Calculator Web-App
   - Direct Link: mobile.kelseytrask.com/meanstest.htm

In addition we have a recently created fourth web-app:

The Chapter 7 Timeline Calculator Web-App
   - Direct Link: mobile.kelseytrask.com/7timeline.htm

The bankruptcy court is very strict regarding deadlines. Often, missing a deadline will result in the dismissal of your Bankruptcy Case. Therefore, it is very important that all documents are filed accurately and on time with the Bankruptcy Court.

This App displays approximate dates for deadlines and events in a Chapter 7 Bankruptcy case when you enter a filing date. These dates are subject to change by amendments to the U.S. Code, or may vary due to local rules or practices or even due to the specific facts of your case. If you have any questions you should consult with an attorney when reviewing this timeline.


Don't have an iPhone, that's okay too. Whether you are an Android, Blackberry or other smartphone user, you can still use all of our great calculators in your web-browser on our mobile pages designed just for smartphones. Just visit m.kelseytrask.com or mobile.kelseytrask.com on your mobile phone and you should see a page that looks something like this:

Obligations that are considered by the Bankruptcy Court to be “domestic relations orders” are non-dischargeable and priority debts. They are defined in U.S. Bankruptcy Code Title 11 Section 101 14(A).

In summary, the term 'domestic support obligation' includes child support, alimony, or other support payment, and can include payments for housing, health insurance or other costs paid on behalf of a spouse or ex-spouse. If payments are owed and in arrears then the 'domestic support obligation may also include interest and the interest is non-dischargeable as well.

It is very important when preparing a Chapter 7 Bankruptcy to be aware that these debts will not be discharged, i.e. will still be owed after the bankruptcy.

It is likewise very important when preparing a Chapter 13 Bankruptcy to be include the 'domestic support obligation' in the Chapter 13 plan as a priority debt and to be clear about how arrears will be paid versus how the ongoing payment reduces the filer's available income. If these issues are not addressed specifically, the Bankruptcy Court may find that the Plan is not binding against your ex-spouse as was the case in In re Owen, 2009 WL 693161 (Bky.E.D.Tenn. March 13, 2009). For an excellent explanation of what happened in that case check out the following article on the Bankrutpcy Law Network: "Stealth" Plan Provisions: Confirmation of Chapter 13 Plan Did not Alter Domestic Support Obligation".

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

Dealing with a case that includes the potential for both child support and alimony can be quite complicated. For purposes of this discussion, I will assume that the person receiving alimony is also the custodial parent (i.e. the person receiving child support).

First let's get some definitions:

Child Support is the amount of money paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. To view the formula and calculate Child Support click here.

Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so. There is not currently any formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. The amount of alimony is dependent on the consideration of all of the factors described in M.G.L. c. 208 Section 34.

Some states use formulas to calculate presumptive alimony. And notwithstanding Section 34, some Judges in Massachusetts have suggested doing the same in Massachusetts. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible. Although the Court has no obligation to follow these formulas they can be a valuable resource in helping parties understand a reasonable potential range of spousal support orders. The Divorce Spousal Support Calculator which includes all of these formulas and can be accessed by clicking here.

What happens when a case warrants both alimony and child support?

Just as there is no formula for calculating alimony in Massachusetts, there is also no bright-line rule for breaking down how much an order should be alimony and how much should be child support when a case warrants both. The interplay of these two figures can be very complicated because the tax effect to both the payor and the recipient is very different depending on how a support order is broken down.

We have a few observations based on three possible ways of making this calculation.

Option 1: If one were to calculate child support (using The Massachusetts Child Support Guidelines) and alimony (using The Divorce Spousal Support Calculator) and simply add them together, the overall support figure would likely be too high for the payor. For example, suppose a couple where the payor/non-custodial parent, Chris Jones, earns $125,000 per year, and the recipient/custodial parent, Pat Jones, earns $25,000 per year. Assuming no health insurance cost, 1 child (and no other child support orders), and no day care costs, the child support order would be $759 per week. Assuming a 20 year marriage, the average of the first five alimony formulas is $644.60 per week. Simply adding these together results in a total support order of $1403.60 per week ($72,987.20 per year), which is 58% of Chris' gross income (resulting in Pat receiving 65% of the total family income). This would likely leave Chris with not enough funds to support Chris' household.

Option 2: Some Judges have indicated at recent conferences that they are inclined to figure out an appropriate alimony order first, and subtract child support from that figure. In our example above, the child support was greater than the alimony, so there would be no alimony order. Chris would pay only the $759 per week in child support resulting in an annual income to Chris of $85,532 (taxed as $125,000) and an annual income to Pat of $64,468 (taxed as $25,000). After taking into account taxes these incomes are relatively close together, though Chris ends up with more than 50% of the income.

Option 3: Another possibility, suggested by one Judge to the author, is to estimate alimony, and then run the child support guidelines on the post-alimony incomes. In this example, if Chris pays $644.60 per week in alimony, Chris' post-alimony income is $91,480.80 and Pat's post-alimony income is $58,519.20. The Child Support using these figures is $558 per week. The resulting income to Chris would therefore be $62,464.80 (taxed as $91,480.80) and to Pat would be $87,535.20 (taxes as $58,519.20). Although resulting in a lower figure than Option 1, this may still result in too high an order for may Judges (and payors).

These examples demonstrate the difficulty of trying to use these formulas together without reviewing some common-sense evaluation of the budgetary needs of each party. For the example case the likely fair figure is somewhere between Option 2 and Option 3. It makes sense to have some of the order be alimony in order to move some of the taxable income to the lower tax bracket. It may not be practical, though, for the total order to be as high as $1,202.60 per week.

In Massachusetts, Probate and Family Court Judges have the authority under the child support statute to order divorcing parents (or unwed parents of children involved in paternity cases) to pay for college education expenses for their children.

Unfortunately, this can lead to expensive litigation when one parent is unwilling to accept (or to tell their child) that certain colleges are too expensive for their family budget.

Even worse, it seems to have become a foregone conclusion that most (if not all) children should go to college. Check out these great thoughts from The Imperfect Parent Blog, too many people (especially in the Probate & Family Court) are afraid to say this:

Kids, Don't Go To College:

"Why are we pushing college on every kid when not every kid is cut out for it? There’s no shame in not going to college, in fact, going to college just may be a waste of time for most high school grads. And if you listen to some talking radio heads, it may just be a colossal waste of money too.

Currently around 65% of high school students are college-bound and some experts are calling for a re-examination of college level education and what it actually gets you these days. Furthermore, as more and more jobs are now being outsourced overseas, a college degree creates a certain dichotomy — while corporations expect and require degrees for jobs in which college degrees aren’t even necessary, like sales positions, conversely, skilled laborers or technicians only require more expedient training through trade schools. One clear benefit of these tradesmen skills is that most of them can’t be outsourced overseas.

For example, I’m an Account Manager for a hospital. Nothing in my 50k waste of a college education prepared me for what I’m doing. What it did do is get me a foot in the door for an administrative position some 17 years ago, where I worked my way up. The rest has been on the job the training. Never have I had to pull from my college textbooks, lectures, assignments or tests to understand how to manage coordinating people’s health benefits in my current position. One has to wonder, what is the point of a B.A. if all you need for is to weed out people that are perhaps more qualified but couldn’t afford to go to college?

Often times I regret not just going to a trade school or becoming a nurse, medical technician or even a paralegal. I could have completed many of those certifications in 2 years or less, instead I wasted 5 years (yes, I was on the 5 year program) of balancing missing classes to hang out in Grant park with my friends while still meeting the minimum requirements to get passing grades.

Welders, electricians, carpenters, plumbers — their all jobs that can’t be outsourced, yet my job can be. So who’s the real chump here?

As www.bluecollarandproud.com points out, these tradesmen are not your grandparent’s skilled labor workers. Many of these trade schools require some critical thinkers, like welders, who deal with complex mathematical equations to figure out trajectories and angles.

While not all kids are cut out for the trades just as all kids are not cut out for universities, the future of the tradesmen just might translate to job security and skills that seem to be lost on younger generations. When and if my children want to go to college, I will be there to support them emotionally and financially (as much as I’m able), but I won’t make them go. I hope they understand all their options, unlike my parents, who pretty much said, “Go to college or I’ll never speak to you again.” "

Under M.G.L. c. 215 s 34, a Judge can incarcerate a Defendant who has failed to pay under a Court Order that was clear and unambiguous, so long as the Defendant had the ability to pay. Many Contempt Complaints in the past few years for issues of non-payment have been due to the down-turn in the economy. The key issue in many of those cases is whether or not the Defendant had the ability to pay.

It can be difficult, though, for the Court to distinguish between a party who is a victim of circumstance and truly unable to pay, and the lazy or vindictive ex who is just not trying to pay their fair share. In 2009, Judges in Massachusetts incarcerated 848 defendants for Contempt. In 2010, the number dropped to 622. That drop may be due to a perception that the economy is affecting more Defendants, but it's difficult to know for sure.

Regardless, you don't want to be among those counted in 2011 (nor do we want any of our clients to add to that number). In these cases the credibility of the Defendant is very important as is any evidence they can present to show a legitimate reason that they were unable to pay. In addition, if the Order is still in effect, the Defendant should likely file a Complaint for Modification to ask the Court to make a change so they will not continue to be in Contempt going forward. If you are not sure about how to proceed on this type of matter, we strongly recommend consulting with an attorney before it's too late.

Child Support is the amount of money paid by the non-custodial parent to the custodial parent for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support click here.

The following is a joint Blog Post prepared by Justin Kelsey, Esq. of Kelsey & Trask, P.C. (co-author of Scaling the Summit: A Family Law Blog) and Danielle G. Van Ess, Esq. of DGVE law, LLC (author of the Massachusetts, Wills, Trusts, and Estates blog).

The Judges in the Probate & Family Court have a lot of discretion to decide what constitutes income when the Court is considering child support or alimony.

According to M.G.L. c. 208 s. 34, the court can consider "amount and sources of income... and the opportunity of each for future acquisition of capital assets and income" when dividing property or awarding alimony. This language obviously leaves a lot of leeway for the court to consider all "sources of income" including potential "future" income.

Similarly, the Massachusetts Child Support Guidelines indicate that the court can consider "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority." The specific list of possible income ends with "any other form of income or compensation not specifically itemized above." Just like with alimony, this broad language provides the Court with discretion to include family gifts as income, especially if the gifts are regular. For example, this could include the right to withdraw funds from an Irrevocable Life Insurance Trust (ILIT) established by parents to reduce estate tax liability and made available to their children as evidenced by regular Crummey notice letters.

The MA Appeals Court recently confirmed this in an unpublished decision holding that a Judge did not abuse his discretion by attributing income to a father based on family gifts, and using that attributed income to calculate child support. DiMambro v. DiMambro (Lawyers Weekly No. 82-281-10) (3 pages) (Appeals Court – Unpublished) (No. 09-P-1387) (Nov. 9, 2010).

“Future income” under the alimony statute, or “attributable income” under the child support guidelines may also include cash gifts such as annual gifts according to the gift tax exclusion amount, which is presently $13,000 per year per individual or $26,000 per year for a married couple to another person.

As the courts may consider all sources of income, particularly where one’s adult child is separated or divorcing it may be best to leave real property (such as a home or vacation home), gifts, and inheritances to one’s adult children in protected trusts rather than outright to attempt to ensure that those gifts will be preserved for one’s child and any grandchildren and not be subject to claims of the child’s ex-spouse. Parents of adult children should also be very cautious about putting their adult child’s name on their real property or bank accounts for purposes of convenience and assistance with management as those assets may become assets of the child as well and subject to claims in bankruptcy or divorce.

Given the Judge's broad discretion in this area, families should discuss gifts and the impact of those gifts with their attorneys to ensure they understand all the relevantthose gifts might have.

Casino Billionaire to pay $100,000 per Month in Child Support for Non-Biological Child: As reported in a recent Boston.com Article, Billionaire Kirk Kerkorian, the major shareholder of MGM Resorts International, has settled with Lisa Bonder Kerkorian, to whom he was married for only 28 days, to pay over $10 million in child support arrears as well as $100,000 in child support per month. Even more shocking than the figures and the short term of the marriage is the fact that Mr. Kerkorian is not the biological father of the child and was purposefully defrauded by the mother who faked a DNA test.

In Massachusetts, a person who is married within 300 days of the birth of the child to the mother is the legal parent of the child even if they are not the biological parent. This is a presumption that can be overcome with a paternity test. However, even if the paternity test proves that the husband is not the biological father, this does not necessarily mean he is not the legal father. Someone who acts like a parent for a period of time long enough for the child to be attached to them as a parent has certain rights and obligations. The best interest of the child require that a "de-facto" parent continue to be involved in their life (i.e. have custody and visitation rights), and in some cases also pay child support.

Even absent a marriage, if a father signs a Voluntary Acknowledgement of Paternity and is added to the Birth Certificate, then they are presumed to be the Father. After one year passes it becomes almost impossible to undo this legal acknowledgement of parentage. In the case of a faked paternity test or other fraud it might be possible to have a Court undo the acknowledgement even after the one year period. However, in many cases, as was the case with Mr. Kerkorian, the father has now been involved in the child's life and would be considered a "de-facto" parent anyway.

Although, California law may be different than Massachusetts law regarding these types of cases, it is still refreshing to see Mr. Kerkorian willing to pay significant child support and take responsibility for a child that is biologically not his. Of course, this reinforces what we've already learned from so many other non-traditional and adoptive families: You don't have be genetically related to a child to be a good parent.

Obviously not every case has alimony and child support issues, but those divorce clients that do should be aware of some basic income tax issues related to support.

Issue #2. CHILD SUPPORT V. ALIMONY:

Child Support is the amount of money paid by the non-custodial parent to the custodial parent for the support of the children. In Massachusetts, Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. Child Support is NOT taxable income to the recipient, and is NOT tax deductible to the payor.

Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so. Alimony is income to the recipient and should be included as taxable income on the Recipients state and federal income tax returns. Alimony is tax deductible to the Payor, and sometimes even payments made on behalf of an ex-spouse, such as health insurance payments may also be tax deductible. You should consult with an attorney to discuss the specific facts of your case if you think you might be making other payments which could be tax deductible as well.

What happens when a case warrants both alimony and child support?

Just as there is no formula for calculating alimony in Massachusetts, there is also no bright-line rule for breaking down how much of an order should be alimony and how much should be child support when a case warrants both. The interplay of these two figures can be very complicated because the tax effect to both the payor and the recipient is very different depending on how a support order is broken down. For more information about the possible ways of dividing support orders review our blog post: How can I calculate Child Support AND Alimony?

Click here to read Divorce and Taxes: Issue #3. Child Dependency Exemptions.

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.

Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.

The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.

I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.

For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

If your spouse has lived in Massachusetts for one year or can establish that the breakdown of the marriage occurred in Massachusetts (as explained in a previous post) then they can obtain a divorce in Massachusetts. However, they will not be able to obtain personal jurisdiction over you and your property except in specific circumstances. In other words, Massachusetts can dissolve the marriage, but unless the Massachusetts courts can establish personal jurisdiction over you they cannot order you to transfer property that is outside Massachusetts or pay alimony.

Jurisdiction over the Dissolution of the Marriage

The United States Supreme Court in Williams v. North Carolina, 317 U. S. 287 (1942), decided that each State can determine the marital status of any spouse domiciled in that state, even if the other spouse is absent. Williams v. North Carolina, 317 U. S. 287, 298 (1942). In addition, the Court decided that under the Full Faith and Credit Clause that divorce decree must be honored in other states including the state where the other party lives. Id. at 299.

This means that if your spouse meets the requirements to obtain a divorce in Massachusetts then that Divorce Judgment ends your marriage legally in all states.

Jurisdiction over the Person

Having jurisdiction over the marital status of their residents, does not also extend to the property of out of state residents. In order for Massachusetts to have jurisdiction over the division of property outside the Commonwealth, the Massachusetts Court must have jurisdiction over the person of the Defendant. Personal Jurisdiction can be accomplished in a number of ways other than residency but is limited to very specific circumstances. M.G.L. ch. 223A Section 3, commonly referred to as the "long-arm statute" describes these circumstances as follows:

"(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;

(c) causing tortious injury by an act or omission in this commonwealth;

(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;

(e) having an interest in, using or possessing real property in this commonwealth;

(f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;

(g) 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; or

(h) 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."

Under section (g), the determination of what is an "act giving rise to such a claim" has been defined rather broadly in two Massachusetts cases, Miller v. Miller, 448 Mass 320 (2007) and Cherin v. Cherin, 72 Mass. App. Ct. 288 (2008), and can include "an exchange of words between husband and wife" that "leads one or both of them to conclude the marriage is over" or engaging in "a persistent course of conduct, by committing various acts in Massachusetts, which created for the wife the impression that he would soon be moving to Massachusetts to retire with her, even though he secretly had no intention of actually doing so."

If you are concerned about whether or not you have committed any "acts" that might give rise to such a claim you should discuss your case with an attorney with experience in these types of cases.

Jurisdiction over the Person for Custody and Child Support Orders

Although the Court may not have jurisdiction over you for the purpose of ordering alimony or property division, if you have children with your spouse and those children now live in Massachusetts, Massachusetts may have jurisdiction over custody/visitation orders and child support orders.

After children live in Massachusetts for six (6) months, under the current law, Massachusetts obtains jurisdiction over any custody or visitation issues regardless of whether any previous custody orders exist (although the orders would be considered before any changes are made).

If a previous support order exists, Massachusetts may have jurisdiction over that order depending on the circumstances. If no previous support order exists then a Massachusetts Court may obtain personal jurisdiction over a non-resident to make support orders under much more lenient standards than in the long-arm statute above. This jurisdiction can be obtained under the Uniform Interstate Family Support Act (UIFSA) which has broad standards such as personally serving you within the Commonwealth or if you ever resided with the child in the Commonwealth, etc.

If you are concerned about whether or not Massachusetts may have jurisdiction over your case under UIFSA, you should discuss your case with an attorney with experience in these types of cases.

To schedule a one-hour Free consultation with Kelsey & Trask, P.C. click here or call (508) 655-5980.

We recently posted this answer on our Bankruptcy Blog and thought that it could be useful to our family law audience as well.

Under the current Bankruptcy Code, a debtor who files a Chapter 7 bankruptcy will not receive a discharge from debts defined in paragraph 5 of 11 U.S.C. § 523(a) as "domestic support obligations" or debts under 11 U.S.C. § 523(a)(15) owed "to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit."

"Domestic support obligations" are defined by 11 U.S.C. § 101(14A) as debts "in the nature of alimony, maintenance, or support" owed to a spouse, former spouse, or child.

These limitations on dischargability therefore apply to both child support and alimony, as well as other potential obligations under a divorce decree, such as agreements to pay joint debts or obligation to pay an ex-spouses attorney fees.

If your ex-spouse does file for bankruptcy, you may need to file responsive pleadings and argue this issue in front of a Judge if the debtor seeks to discharge the debt. If you fail to dispute the discharge, that could result in the debt being discharged. Though this is very unlikely, if you are not sure how to protect your rights you should consult with an attorney.

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question.

There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support.

The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children.

Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. Accordingly, the court requires that child support provisions merge as well.

These are the only two types of provisions that must be merged in any case involving children. There may be other provisions, however, that in certain circumstances the Court may require you to merge. One example of this is in very long-term marriages (such as a 30 year marriage or longer), the Court may refuse to allow parties to survive a waiver of alimony. Some Judges have expressed the opinion that it is not fair and reasonable to completely separate the finances of parties who have been married for such a long time. This could depend on other circumstances in the case as well.

For more information on whether your Agreement properly protects you with regards to the merger and survival clause you should consult with an Attorney. To consult with Kelsey & Trask, P.C. please call us at (508) 655-5980 or e-mail us.

A new Massachusetts Homestead law was signed in December, 2010 (taking effect in March, 2011) and there are some provisions that relate to how a homestead is or is not affected by divorce:

Effect of Homestead on Child Support or Alimony: M.G.L. c. 188 Section 3(b)(4) - The Homestead Exemption does NOT protect you from collection of child support or spousal support (a/k/a alimony).

Effect of Marriage on Homestead for Spouse: M.G.L. c. 188 Section 5(d) - "The estate of homestead of an individual who records a declaration of homestead under section 3 and who subsequently marries shall automatically be deemed to benefit that individual’s spouse."

Effect of Divorce Orders on Homestead for Spouse and Children: M.G.L. c. 188 Section 6 - "In a case where a complaint for divorce, separate support, guardianship or conservatorship has been filed in the probate court by or against a person entitled to the benefit of an estate of homestead, the spouse and minor children of that person may use, occupy and enjoy the homestead estate until ordered otherwise by the probate court. The recording of an order of the probate court, together with the description of the homestead estate, shall prevent a beneficiary of the homestead estate from disposing of the estate until such time as the probate court revokes the judgment."

M.G.L. c. 188 Section 7 - "The estate of homestead existing at the death or divorce of a person holding a homestead under section 3 or 4 shall continue for the benefit of the surviving spouse or the former spouse and minor children who occupy or intend to occupy the home as their principal residence. The estate of homestead of the surviving spouse or former spouse and minor children shall continue notwithstanding the remarriage of the surviving or former spouse."

Thank you to Danielle Van Ess, Esq. for providing all of this information (and practically writing this blog for us). We recommend you check out her blog post regarding how the new Homestead Law affects Estate Planning: Why You Should Care About the New MA Homestead Law.

A Complaint for Modification is the action by which you can request that the Court make a change to past Court Judgments. If the Orders that you want changed are only Temporary Orders then you must request a change by Motion.

A Complaint for Modification is the beginning of a new action and should only be used to change permanent orders which are called Judgments. To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Court's Order.

A "significant material change in circumstances" is a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.

The Child Support Guidelines in Massachusetts include the following provision:

"Obligations to a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such obligations should not be considered a reason to decrease existing orders."

In short, this means that you cannot request that the Court reduce your child support because you chose to have more children (although you can defend a request for an increase on this basis). This could be really bad news for someone who is apparently unaware of birth control like New York Jets cornerback, Antonio Cromartie.

Antonio Cromartie has a lot to say about the upcoming Patriots/Jets Divisional Playoff Game, but is less eloquent when it comes to remembering the names of his nine children (with eight different mothers). This video from Toucher & Rich (of Boston's 98.5 the Sports Hub) points out Cromartie's shortcomings in song: