‘Deadbeat dad’ raids unjust

Worcester County Sheriff Guy Glodis recently announced what he called “the largest one- day roundup of deadbeat dads in Worcester County history” as his deputies marked Father’s Day by arresting 16 offenders who they claim owe over half a million dollars in outstanding child support. While there are probably few Father of the Year candidates among the 16, the “deadbeat dad” problem has been vastly overblown by both the media and law enforcement officials.

Though “deadbeat dads” are often pictured as high-flying playboys, the Federal Office of Child Support Enforcement’s own data showed even before the recession that over two-thirds of “deadbeat dads” earned poverty-level wages, and only 4 percent earned even $40,000 a year.

The problem is particularly acute in Massachusetts. A published 2004 study by Arizona State University professors Sanford Braver and David Stockburger concluded that Massachusetts’ guidelines for determining how much child support an obligor will pay were among the highest in the United States. Since then, the state’s guidelines have actually been raised — in January 2009, in the middle of the worst economy since the Great Depression.

Moreover, Massachusetts charges 18 percent interest on child support arrearages — the highest interest rate in the nation. Most “deadbeat dads” are poor, but there are many reasons why even educated middle-class or formerly middle-class fathers can fall behind on child support.

That most of Glodis’ “deadbeats” are really dead broke is evident from looking at the “10 Most Wanted” child support evaders list put out by the Massachusetts Department of Revenue, who worked closely with Glodis on the recent raids. The list is comprised of blue collar laborers who do low-wage and often seasonal work. This is typical of the lists put out by many attorneys general and county sheriffs — the only surprise is that the Massachusetts DOR list actually does contain one educated professional.

While genuine child support evaders certainly exist, many noncustodial parents fall behind in their support because the current system is mulishly impervious to the economic realities working people face, such as layoffs, wage cuts, unemployment, and work-related injuries. According to the Urban Institute, less than one in 20 noncustodial parents who suffers a substantial drop in income is able to get courts to reduce his or her child support payments.

National Public Radio reporter Monica Brady-Myerov of WBUR in Boston recently found that:

“(A)sking the court to change the child support obligation because you lost your job isn’t always enough … it’s a slow- moving system that hasn’t changed with the fast decline in the economy … Typically, it takes six months from the time a noncustodial parent petitions the court to pay less because of a job loss to when the court makes a decision.”

Ms. Brady-Myerov covered the case of a Cape Cod father who’s required to pay $800 a week in child support and 65 percent of college expenses for two of his children, based on an $80,000-a-year job he no longer has. He had to wait 10 weeks just to get a hearing, and even then the judge denied his request to temporarily lower his child support payments.

In the bad economy, many dads are substituting hands-on child care for the monetary benefits they can no longer provide. The child support system is too often impervious to this, judging fathers’ worth only by what they pay.

In fact, child support officials in numerous states are telling the media — without a trace of irony or shame — that the best way they’ve found to collect child support money in the recession is garnisheeing half of obligors’ unemployment checks

Some judges tell laid-off noncustodial parents to pay the child support from their savings. Yet most of them don’t have significant savings, and the burden often ends up falling on their elderly parents. It is common for grandparents to use their retirement funds to pay their sons’ child support to keep them out of jail.

The recession has negatively impacted women’s earning capacity, and with child support and alimony down, many custodial mothers are also struggling. But nobody would or should dream of throwing a mother in jail because she’s unable to pay her bills. Noncustodial fathers deserve the same consideration.

Worcester businessman David Brasington is the board secretary of Fathers and Families, a Boston-based family court reform organization.

Paying Alimony Forever?

Special Report

FOXBOROUGH, Mass. – At the Norfolk County Jail, he was inmate 35634. Foxboro business owner Jim Foley spent two weeks behind bars. His crime was failure to pay his ex-wife $8,500 in spousal support.

“The alimony payment is $1500 dollars a week. I’m currently making $1350 dollars a week,” Foley says. After 31 years of marriage, Foley and his first wife divorced in 2002. At the time, he signed a legal agreement, promising to keep the checks coming until he turns 65 years old.

Foley says he never missed a payment until last year when his heavy equipment business tanked with the economy. He claims he lost everything, including his home. Even after filing bankruptcy, Foley hasn’t been able to convince a judge to reduce the payments and has been accused of hiding assets.
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EXCERPT FROM TED’S BLOG:
” I realize divorce and alimony are emotionally charged issues and I understand there are valid points on both sides. Also, Alimony is SEPARATE from child support. It’s money usually paid by the higher earning spouse to the lower earning spouse after a divorce. With that said…let’s discuss.”

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His current wife says the financial burden is destroying their life.

“Why do you do that to a man who simply can’t afford a very high alimony payment? That’s just morally wrong and it should be legally wrong,” Foley’s current wife Jayn says.

There is no place in the country with divorce laws like Massachusetts, and critics describe them as unfair and outdated. Separate from child support, most states order alimony as a temporary financial bridge to get a dependent spouse on their feet after a divorce, but in Massachusetts, alimony can last a lifetime.

A no-fault divorce state, it makes no difference who terminated the marriage, and the gender-neutral payments are sometimes calculated on someone’s capacity to earn, not what they actually make.

“I don’t think anybody, male or female, should be dependant on anybody for financial support their whole entire life,” says Kate Kent, a nurse-midwife from Stowe who says she recently learned another thing about alimony in Massachusetts, that it affects second wives.

Her lawyer advised her not to marry her fiancé, telling her she may be forced to contribute her assets and income to help him pay his ex-wife’s alimony.

“I think it’s fair to say I would feel angry and resentful. If it was children, it would be a completely different story,” Kent says.

“Yes, its broken, it needs to be fixed,” says Steve Hitner, the founder of a group trying to reform alimony laws in the Bay State.

Hitner says he’s heard hundred of alimony horror stories and has one of his own. The small business owner says the laws need to be changed on Beacon Hill.

“We had everybody contact their senators and their state reps to inform them of their horror stories. What happened was we got 72 co-sponsors of this bill.”

David Cherny, a family law attorney in Boston for 28 years says the system is not as bad as some make it out to be, and cautions against a cookie cutter approach.

“I know one of the issues that’s being promulgated is the concept of terminating alimony when you retire, alimony stops. I think that, again, we run into that problem with setting those strict guidelines that when A happens, B happens,” Cherny says.

Jim Foley says unless his alimony payment is reduced, he will only be forced further into debt.

”Everything you worked for, it’s gone,” Foley says.

His biggest fear is that he would lose his income altogether, because he will be locked up again in jail.

Fathers and Families CLICK HERE

Protest Lifetime TV’s New Reality Show Deadbeat Dads!

Lifetime TV announced the launch of its new, father-bashing reality show Deadbeat Dads last week. To email and fax a letter to Lifetime Executives protesting this show, click here.

“Neither accurate nor fair.” –Syndicated columnist Kathleen Parker, Washington Post Writers Group, on Deadbeat Dads
According to The Hollywood Reporter, “Deadbeat Dads, originally developed at Fox, follows National Child Support founder Jim Durham as he tracks down and confronts dads who don’t pay child support.” According to Reuters, Durham “functions as a sort of ‘Dog the Bounty Hunter’ for tracking deadbeats…It’s ambush reality TV.” Durham will target fathers who are behind on their child support by “making their lives miserable — foreclosing on their house, repossessing their car. He will squeeze them.”

“Unfair to men.”–Syndicated advice columnist Amy Alkon, on Deadbeat Dads
Last April, Fathers & Families led a highly-publicized campaign against the show (originally called “Bad Dads”) and got Fox to drop it. Now Lifetime TV, which reaches nearly 100 million households, has picked up Deadbeat Dads, which unfairly depicts divorced fathers as uncaring and selfish. Research clearly shows that most divorced dads pay their child support and remain a part of their children’s lives, often under difficult circumstances. In fact, federal government data shows that the overwhelming majority of “deadbeat dads” earn poverty level wages–only 4% earn even $40,000 a year.

“Disturbing…they are heaping abuse on men in the name of ‘justice’”–TV Host/Psychologist Helen Smith, on Deadbeat Dads
To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

Deadbeat Dads kicks fathers while they’re down. Media reports show the majority of those losing their jobs in this recession are men, and child support orders are notoriously difficult to modify downward. As the New York Times, the Boston Globe, and other papers have documented, these hard luck dads sometimes end up in jail.

Support our campaign with your tax-deductible contribution
To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

The worst part about Deadbeat Dads is the way it publicly humiliates children in single parent families by depicting their fathers as not loving or caring for them. How is a child to feel when he or she sees their dad being vilified on TV because he allegedly doesn’t love or provide for them? How is the child to feel when he or she is reminded of this by friends or teased about it on the schoolyard?

To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

According to US Census data, noncustodial mothers are 20% more likely to default on their child support obligations than noncustodial fathers. It is misleading and unfair to name the show Deadbeat Dads when the average noncustodial father is more likely to pay his child support than the average noncustodial mother.

To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

Another problem with Deadbeat Dads is that studies show that the arrearages for which “deadbeat dads” are pursued are often erroneous. For example, a recent Massachusetts audit found that the arrearages were incorrect in 92% of that state’s cases.

The California Department of Child Support Services itself admitted last year that the overwhelming majority of “deadbeat dads” are the product of problems and abuses within the child support system. Missouri Child Support Auditor Susan Montee recently called the way Missouri calculates child support arrearages “extremely sloppy…a total inattention to making sure these numbers are right.”

To email and fax a letter to Lifetime Executives protesting this show, click here.Also, please call Lifetime TV’s main switchboard at 310 556-7500.

Moreover, Deadbeat Dads glorifies the role of private child support collection agencies, even though these agencies often manhandle fathers and deceive custodial mothers. In fact, women’s advocates, including the National Organization for Women, have repeatedly condemned these agencies for mistreating women. Durham, the central figure in Deadbeat Dads, has often been singled out by women’s groups as a perpetrator of these abusive tactics.

To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

Television is already rife with negative, misleading and unfair depictions of fathers–Deadbeat Dads promises to be one of the worst examples. Many successful, highly-visible commentators have recently gone on record as opposing the negative way the media portrays men and fathers. These include syndicated columnist Kathleen Parker, whose weekly columns appear in 300 newspapers; TV host Bill Maher; CBS News anchor Charles Osgood; nationally syndicated radio-talk-show host Laura Schlessinger; and many others. How fathers are portrayed matters.

To email and fax a letter to Lifetime Executives protesting this show, click here. Also, please call Lifetime TV’s main switchboard at 310 556-7500.

Running these campaigns takes time and money–to make a tax-deductible contribution to support our efforts, click here.

Together with you in the struggle,

Glenn Sacks, MA
Executive Director, Fathers & Families

Ned Holstein, M.D., M.S.
Founder, Chairman of the Board, Fathers & Families

Recent Developments in Massachusetts Divorce and Family Law

By Law Offices of Sharyn T. Sooho Published:  February 22, 2006

Legal and Financial Aspects of Divorce and Family Law:
Recent Developments in Massachusetts (Fall 2005)

Summary

This article provides an overview of recent cases in the context of the Massachusetts Equitable Distribution Statute enacted in 1975, including a summary of the statutory factors and the plain meaning of key legal terms such as conduct and contribution. Discussion will include current practices in the Probate and Family Court affecting due process, asset identification, valuation and allocation, finances, including child support in high income cases, collecting arrearages, alimony in long-term marriages, life insurance, health insurance, and the recent developments and challenges posed by the advent of same sex marriage in Massachusetts. The material includes the recent cases on prenuptial agreements and the legal and financial conundrum they create. The case review also covers the financial obligations of a father whose parental rights are being terminated, and the court’s reading of the term “adopted issue” in a probate case, and the outcome of an unmarried cohabitant’s suit demonstrate the scope of the courts’ decisions on the concept of family in various situations.

Outline

1. Introduction and overview.
a. Refinement and clarification of existing law by recent court decisions.
b. Dramatic new development: Same sex marriage under Goodridge.
c. Conflicting views on prenuptial agreements: Supreme Judicial Court versus Appeals Court.

2. Statutory foundation: Massachusetts General Laws Chapter 208.
a. Discretion of the court: A flexible, not mathematical approach to asset allocation and alimony under Section 34 of Chapter 208.
b. Statutory factors affecting financial outcomes under Section 34.
c. Expansive definition of marital assets: Premarital assets and after-acquired assets.
d. Equitable, not equal, distribution: Conduct versus contribution.
e. Stock options: The Baccanti formula.
f. Dividing retirement and pension assets, the Dewan cases and Mangiacotte case.
g. Valuation issues: Savides and Sahin.

3. Prenuptial agreements: Can alimony be waived?
a. Yes, according to the Supreme Judicial Court in DeMatteo.
b. No, according to the Appeals Court in Austin, but see Korff, that did not allow judicial modification of a prenuptial agreement’s alimony provision.

4. Alimony.
a. Terminating alimony on retirement: Is it an option?
b. The “Ginsburg formula,” a nonbinding method of calculating alimony in long-term marriages.

5. Child support.
a. Paying according to the written guidelines.
b. High income cases and the guidelines.
c. Attribution of income.
d. Items includible in income.

6. Life insurance: Drafting issues and compliance problems.

7. Health insurance: Out-of-state employers.

8. Same sex marriage: Financial challenges when marriage is not recognized in all jurisdictions and on the federal level.

9. Unmarried cohabitants: The need for a written agreement.

10. Termination of parental rights and responsibilities: A counterintuitive or child-centric result?

11. Rights of adopted children: Advising clients and reviewing documents in light of older definitions.

12. Conclusion: Equitable distribution focuses on finances and taxation, not heart balm. Tradition-bound and forward-looking decisions defining “family” for the 21st century.

13. Resources for Massachusetts family law: Favorite sources of information.
a. Online resources.
b. Other resources.

Introduction

The following article provides an overview of recent developments in the legal and financial aspects of divorce and family law in Massachusetts. Recent case law for the most part simply refines and clarifies existing law. The major exception is the historic ruling in favor of same sex marriage in Goodridge v. Department of Public Health and Another, 440 Mass. 309 (2003). Massachusetts is now the only jurisdiction – state or federal – allowing same sex marriage.

Goodridge creates new challenges for legal and financial advisors working with same sex couples whose marriages are not recognized in other parts of the country or the federal government and its agencies, including the Internal Revenue Service and the Social Security Administration.

While Goodridge expands the court’s definition of “family,” the Watson case discussed under “Rights of Adopted Children” ratifies traditional notions from an earlier era, and the Northrup case outlined under “Same Sex Marriages and Rights of Unmarried Cohabitants” reminds us again of the legal ramifications of marriage and the perils of living together without benefit of marriage.

A less dramatic, but problematic development involves conflicting views on prenuptial agreements expressed by the Supreme Judicial Court in DeMatteo v. DeMatteo, 436 Mass. 18 (2002) and by the Appeals Court in Austin v. Austin, __ Mass. App. Ct. __ (2004). The DeMatteo case upheld the limitation imposed on the wife’s claim for alimony whereas the Austin case did not. For a comparison of DeMatteo and Austin, see http://www.divorcenet.com/states/massachusetts/prenuptial_agreements_and_alimony_waivers.

1. Statutory Foundation: Massachusetts General Laws Chapter 208

A. Discretion of the Court: A Flexible, not Mathematical Approach

The lynchpin of Massachusetts divorce law is Chapter 208 of the General Laws entitled “Divorce.” Section 34 of the divorce statute deals with alimony and an equitable, but not necessarily equal, assignment or distribution of assets upon divorce or at any time after divorce.

For an interesting case involving distribution of assets after divorce, see Akinci-Unal v. Unal, __ Mass. App. Ct. __ (2005) affirming the right of the former wife to seek a distribution of assets in Massachusetts after the former husband was granted a divorce in Turkey and Saudi Arabia.

There are no guidelines for the amount of alimony or the percentage of assets to be awarded to each spouse. These matters are left to the discretion of the trial court after an analysis of more than a dozen factors listed in Section 34.

Judges are not required to use mathematical precision in awarding alimony and dividing property. Nevertheless, lawyers should present a thorough analysis of the financial and tax aspects of various options to guide judges and shape more favorable outcomes. The advice of financial experts is most helpful in preparing the lawyer to negotiate or litigate.

B. Factors Affecting Outcome

The factors enumerated in Section 34 affecting a financial order or settlement include length of marriage, the parties’ age, health, education, past, current, and future employment, contribution to the acquisition, preservation and appreciation of assets, station in life during marriage, conduct (good and bad), current and future income, current and future property interests, contribution as homemaker, and unmet future needs of children. No single factor is more important than any other. Assets are divided equitably – again, not necessarily equally, and alimony may or may not be awarded, depending primarily on the need of the party requesting alimony and the ability of the other party to pay.

Need is determined partly according to the parties’ station in life during marriage. Grubert v. Grubert, 20 Mass. App. Ct. 811 (1985), but see also Johnston v. Johnston, 38 Mass. App. Ct. 531 (1995) where wife was not required to live modestly while husband lived more lavishly after divorce because of their frugality during marriage.

Financial advisors, lawyers, and clients should pay careful attention to the preparation of the financial statements filed with the Probate and Family Court. Several versions of a weekly budget should be presented, although separate schedules will have to be attached to the court form. The official form provides space for only one version. The first version might present the parties’ weekly expenses prior to separation or before divorce was contemplated; a second might offer current expenses, often skewed from pre-divorce spending; and a third should include anticipated expenses such as legal fees, repairs, increases in medical insurance premiums, the cost of moving, security deposit on a new apartment, etc. The three versions should convey a sense of the historical spending, the new spending in light of the divorce, and what the client would like to spend in the future. Endnotes are another acceptable means of explaining and expanding on the individual line items under “Weekly Expenses.”

C. Marital Assets: Casting a Wide Net

The Massachusetts equitable distribution statute includes all assets, regardless of whether they were inherited or owned before marriage, so long as a party has an interest before divorce. See Davidson v. Davidson, 19 Mass. App. Ct. 364 (1985). Property acquired after divorce may affect alimony or the amount of assets given to a spouse at the time of divorce. See Davidson.

The courts have upheld prenuptial agreements that exclude and protect some or all of a spouse’s assets from an equitable distribution. Over the years court decisions have added nuances to the definition of marital assets that hint at possible future exclusions of inherited and gifted property. See Williams v. Massa, 431 Mass 619 (2000). The Massa case allowed the husband to retain family-owned assets, and while some commentators believe the case stands for the proposition that family-owned assets stay within the bloodlines, others believe it is the result of the wife’s total lack of meaningful contribution to the family as homemaker, mother, and spouse.

D. Equitable, Not Equal Division of Assets: Conduct as a Factor

Courts tend to divide assets equally, but will carve out exceptions for short-term marriages where one or both parties had premarital assets, or where one party made little or no contribution, see Massa; or in cases involving one party whose outrageous behavior caused financial hardship to the family, Handrahan v. Handrahan, 29 Mass. App. Ct. 167 (1989). Conduct, except financial chicanery, has minimal impact, so adultery has little or no economic consequences unless the guilty party spent substantial sums on a paramour.

Most divorces are now filed on the ground of an irretrievable breakdown of the marriage – the Massachusetts version of a no-fault divorce. The same trend is prevalent in other states. The sanitizing of divorce in some ways makes divorce harder because clients cannot understand or accept a legal system that fails to punish an adulterer. Advisors, however, must keep in mind that courts are not interested in a lengthy presentation on marital fault, and instead focus on the financial and tax aspects of the asset and income allocation.

E. Stock Options

Stock options, vested and unvested, are divisible between divorcing spouses – and are valued according to a formula outlined in the case of Baccanti v. Morton, 434 Mass. 787 (2001). As a general rule, the closer the vesting date is to the date of the marriage, the larger the share for the non-employee spouse.

Although Baccanti provides detailed instructions for valuing and dividing unvested options, parties may consider implementation cumbersome, leading to a buy-out at the time of divorce. Expert financial advice is critical in these cases.

F. Retirement and Pension Assets

The “marital enterprise” theory is the foundation of the equitable distribution statute. Marriage is likened to an enterprise in which both participants are entitled to an equitable share upon dissolution. Once the enterprise is ended, the participants are no longer entitled to share after-acquired assets, unless, like unvested stock options, the future value is based in part on the parties’ efforts during marriage. That same theory provides a rationale for dividing qualified pensions and retirement accounts that are not yet in pay status by a Qualified Domestic Relations Order (QDRO). See Dewan v. Dewan, 17 Mass. App. Ct. 97 (1983); 399 Mass. 754 (1987); and 30 Mass. App. Ct. 133 (1991), usually referred to as Dewan I, II, and III.

The Contributory Retirement Board of Arlington v. Mangiacotte, 406 Mass. 184 (1989), permits the division of municipal and state pensions by Domestic Relations Order, sometimes called a DRO.

G. Valuation

Valuation issues often arise when cases involve stock options, pensions, and other hard to value or unique assets like closely held businesses, art, antiques, real property, jewelry, collectibles, etc.

Assets are valued on the date of divorce, not date of separation, but compare Savides v. Savides, 400 Mass. 250 (1987), where the parties were separated for many years before the divorce, and husband’s sole efforts created appreciation on the assets. There is a temptation to divide on an “if, as and when” basis to avoid having to appraise an asset. For example, if, as and when a pension is in pay status, the non-employee spouse will receive a share of the monthly payments instead of a lump sum buyout based on an appraised value at the time of the divorce.

If the wife wants to remain in the marital home, she may be forced to relinquish her right to any current or future share of the husband’s pension in exchange for his interest in the home. It begs the question: will she be able to pay for groceries and utilities, if she opts for home ownership?

Appraising a closely held business is also an art that can cause major post-divorce shockwaves as in the case of Sahin v. Sahin, 435 Mass. 396 (2001). The husband owned a telecommunications business. The parties disagreed over the value at trial, and ultimately the trial judge ruled that the business was worth $5 million. Three years after the divorce, Mr. Sahin sold his business to Verizon for $1.4 billion. The wife attempted unsuccessfully to reopen the case. Around the time of the post-divorce litigation the Boston Globe reported that Mr. Sahin made one of the largest donations ever to MIT, and a local suburban newspaper reported that the Sahins’ son dropped out of Boston College for lack of funds.

2. Prenuptial Agreements

Prenuptial agreements can be used in Massachusetts to alter the rights and responsibilities of married people, and may provide a degree of certainty that the courts do not offer in the absence of an agreement. The Massachusetts courts have enforced prenuptial agreements if the agreements are fair and reasonable on the date of execution and on the date the agreement speaks, i.e., upon divorce or death. These agreements generally deal with asset divisions and alimony, but refrain from treating child-related issues because of the court’s policy of crafting child custody and support orders at the time of the divorce without reference to any prior agreement.

Recent cases have created some confusion and uncertainty with respect to alimony. The three cases are DeMatteo, Austin and Korff v. Korff, __ Mass. App. Ct __ (2005). The DeMatteo case, decided in 2002 by the Supreme Judicial Court – the highest court in Massachusetts – held that the wife had to comply with the agreement to accept an extremely limited amount of alimony from her wealthy husband. In late 2004, the Massachusetts Appeals Court decided the Austin case and held that the penurious wife should not be forced to waive her right to ask for alimony. Then, in July 2005, the Appeals Court ruled in Korff that a trial court could not rewrite the alimony provisions of a prenuptial agreement that was considered fair and reasonable at the time of execution and on the date of divorce.

The Korff case involved a prenuptial agreement between a high earning husband who worked as a financial advisor at Morgan Stanley and a wife whose earnings were in the mid-thirties at the time of the divorce. The prenuptial agreement called for annual adjustments to alimony requiring the husband to pay the wife 21 percent of his gross income. The trial court found the husband had “no financial credibility” and decided to “rewrite” the formula by establishing a five year average for the husband’s annual gross income at $926,725.50, and then awarded the wife $14,625.41 per month, eliminating future annual adjustments. The Appeals Court remanded the case for further consideration of husband’s annual income and disallowed the five-year average approach.

The Korff decision falls within the line of cases allowing the parties to enter into a “self-executing” agreement that provides for periodic adjustments to alimony and child support based on changes in income. Korff illustrates the problems with enforcing agreements that require the parties to report changes in income.

3. Alimony

Alimony usually terminates upon the death of a party to the divorce or upon the remarriage of the recipient. As the population ages, we are confronted with the paying spouse who wants to terminate or reduce alimony upon his or her retirement. In the absence of an agreement, the dissatisfied party would have to file a complaint for modification alleging a material change in circumstances. The critical element in these cases is whether the change was reasonably foreseeable and/or contemplated by the parties. If so, the courts may turn down the request to reduce or eliminate alimony.

If there are no children, and one party earns more than the other in a long-term marriage, the courts might award alimony based on the “Ginsburg formula” – named for retired Edward Ginsburg of the Probate and Family Court, who believes predictability and consistency eliminate much litigation and anxiety. Judge Ginsburg wrote an article proposing that alimony be set at 40 percent of the couple’s combined annual income. If the husband makes $250,000 and the wife earns $40,000, their combined income of $290,000 would entitle the wife to 40 percent of the total, or $116,000. She already has $40,000 in earnings and would receive $76,000 as alimony from the husband for a total of $l16,000.

Compare Korff where the husband was required to pay only 21 percent of his gross income and the wife’s income had no bearing under their prenuptial agreement.

4. Child Support

A. Massachusetts Guidelines

Child support is usually determined according to a formula outlined in written guidelines first promulgated in the 1980’s in compliance with the federal welfare reform law. For Divorcenet’s online interactive version of the Massachusetts Child Support Guideline Worksheet, see http://www1.divorcenet.com/worksheet.html. The federal government initially targeted welfare families, and insisted that each state draft and implement a set of guidelines to ensure predictability and consistency in child support orders awarded to welfare recipients. Within a short time the concept spread to all families, and every state now has its own child support guidelines. The Massachusetts version is straightforward with the possible misconception that it applies only to those cases where the family income is not in excess of $135,000. In practice, courts use the guidelines as a starting point to determine need and ability to pay in all cases.

B. Out-of-Guideline Cases

i. High Income Cases

In so-called high income cases involving more than $135,000 in family income, courts tend to apply the guidelines to the first $100,000 of the paying parent’s income to determine child support, and then use a percentage of income in excess of $100,000 for alimony. Since there are no alimony guidelines, the percentage awarded as alimony may range from 25 to 33 percent of income over $100,000. Income may be defined to exclude unearned income or appreciation on marital assets divided between the parties. Note that the court rejected husband’s argument that he should not pay alimony to his wife because she received several million dollars in marital assets that could generate unearned income to meet her needs. Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903 (1992).

ii. Loss of Income and No Income Cases: Imputing or Attributing Income

When divorce is mentioned in anger or despair, one or both spouses may begin a downward trend in earnings, intentionally or otherwise. If the court finds that a spouse is voluntarily underemployed or unemployed, the court may attribute income to the errant spouse. Support is based on what that spouse could be earning based on training, experience, and education.

C. Enforcement and Due Process

The Appeals Court decided the Naranjo cases in 2005, holding that the Department of Revenue (DOR) had to give Mr. Naranjo notice and an opportunity to be heard before suspending any of his licenses because of an alleged arrearage in child support, Naranjo v. Department of Revenue, __ Mass. App. Ct. __ (2005). The court also held in a second case that the Probate and Family Court could not collect on behalf of DOR unless it was a party to the probate court proceedings, Naranjo v. Naranjo, __ Mass. App. Ct. __ (2005). The court’s decisions are not surprising and resonate with strong constitutional notions of fair play. Notwithstanding the Naranjo cases the reality is that DOR can be a difficult party in child support cases. Attorneys for parents who pay and receive support frequently advise them to work out a private arrangement before using DOR to collect and pay out support. In some instances DOR collects and then fails to distribute funds.

5. Life Insurance: Funding Support Obligations after Death

Life insurance is an important component in divorce cases, often used to protect the dependent spouse and children. A recent case, Foster v. Hurley, __ Mass. __ (2005), decided by the Supreme Judicial Court, ruled that the deceased wife, Janice Hurley, had an obligation under the terms of the parties’ 1995 separation agreement to maintain life insurance of $200,000 for the husband for the benefit of the unemancipated children. At the time of her death Janice had two policies with total benefits of $199,000, naming her second husband, Michael J. Hurley, as beneficiary.

The court ruled that the second husband had to relinquish his claim to the first policy for $168,000 in favor of the first husband, Richard Foster, for the unemancipated children, because the policy was in existence at the time of the divorce and was intended by the first husband and deceased wife as protection for the unemancipated children. The second, smaller policy for $31,000 was left with the second husband on the theory that it was not in existence at the time of the divorce, and the wife had a right to be generous to her second spouse, even though she had not fulfilled her obligation under the separation agreement to the first husband and their children.

The court (Cordy, J.) went on to say that the second husband did nothing wrong, and should not be compelled to turn over the proceeds from the smaller policy because the separation agreement was not specific about what happened to after-acquired policies. The court also noted an “absence of any evidence” that the wife intended to use the second policy to meet her obligations under the separation agreement and that she was thwarted in her efforts by the second husband.

The court was not persuaded that the first husband had to sue Janice’s estate instead of asking the court to name him as equitable beneficiary, although the separation agreement stated:

“If the policy or policies are not in full force and effect at the time of a party’s death, then notwithstanding anything to the contrary contained in this Agreement, the surviving party shall have a creditor’s claim against the deceased’s estate…”

In a dissenting opinion, Greaney, J. wrote that there should be no distinction between the first and second policies and both should have been awarded to the first husband for the benefit of the unemancipated children. As a warning to practitioners, the dissent notes that:

“The obligation to provide life insurance coverage in a separation agreement raises many complex issues that cannot be easily resolved by a standard provision. There are many issues for divorcing spouses to consider… the issue requires careful consideration…”

6. Health Insurance: Out-of-State Employee Spouse

Divorcing parties generally make provisions for health insurance coverage through employment for the spouses and unemancipated children. A problem arises when a spouse is working out-of-state and the employer is not subject to Massachusetts laws. In a recent case of Foster v. Group Health Incorporated, __ Mass. __ (2005) the court held that a spouse working for an out-of-state employer was not obligated to obtain and maintain coverage for a Massachusetts spouse. While the result is not surprising, it does end speculation about what the court would do.

7. Same Sex Marriage and the Rights of Unmarried Cohabitants

A. Same Sex Couples

Same sex marriage arrived officially in Massachusetts in May of 2004 as a result of the Goodridge case, and opened up a new set of legal and financial challenges for same sex partners. Their marriages are recognized in the Commonwealth, but not by the federal government or other states. Financial planning is enormously useful for same sex couples. Same sex spouses do not receive the same treatment as their heterosexual counterparts for federal tax purposes, Social Security, or pension and retirement benefits controlled by federal law or the laws of other states, and thus creative approaches by financial advisors are warranted.

Some advisors are advising married same sex couples to file as single taxpayers for federal income tax purposes, but to add a footnote on the returns, indicating that they are married under the laws of Massachusetts, and if, as, and when the federal government recognizes same sex marriage, the taxpayers reserve the right to amend the returns. Same sex couples need prenuptial agreements to cover contingencies not facing heterosexual couples who might come under the jurisdiction of another state at the time of divorce. Same sex couples who remain in Massachusetts might face other problems, such as determining the parties’ contribution to a long-term relationship but a short-term marriage. These couples were legally prohibited from marrying until 2004, but if they had long-term relationships, it may be unfair to treat their marriages as short-term if they divorce a few years later.

B. Unmarried Cohabitants

The recent case involving the administrator of Robert J. Lurtsema’s estate, Northrup v. Brigham, Administrator, __ Mass. App. Ct __ (2005), suggests that cohabitants should also insist upon written agreements or face the possibility of extreme disappointment on the death of a party or other termination of the relationship. In the Northrup case, Ms. Northrup gave up her paid employment outside the home to become a full-time and unpaid helpmate and live-in companion to Mr. Lurtsema in his last years while his health declined. Ms. Northrup contends that Mr. Lurtsema promised to provide for her in his will in exchange for her work, but the parties never reduced the promise to writing. Mr. Lurtsema died without making provisions for Ms. Northrup, who then sued his estate for breach of contract, quantum meruit (fair payment for services rendered), and the imposition of a constructive trust to prevent unjust enrichment (imposing an obligation on the estate to turn over assets that rightfully belong to Ms. Northrup to prevent the enrichment of the estate at her expense because of Mr. Lurtsema’s or his representative’s fraud, or other legally improper behavior).

The trial court allowed the estate to end the case quickly on the ground that there was no material fact being disputed, and that as a matter of law, Ms. Northrup had no legal claim. The Appeals Court decided that there were material facts in dispute, and as a matter of law, Ms. Northrup could proceed with her claim for compensation, but could not sue for breach of contract because it was not reduced to writing and was unenforceable because of the Statute of Frauds, and could not proceed with an unjust enrichment claim because there was no support on the record to make her case.

The Northrup court cites Wilcox v. Trautz, 427 Mass. 326 (1998), as follows:
“[U]nmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. Such a contract is subject to the rules of contract law and is valid even if expressly made in contemplation of a common living arrangement, except to the extent that sexual services constitute the only, or dominant, consideration for the agreement, or that enforcement should be denied on some other public policy ground.”

8. Termination of Parental Rights and Responsibilities

The court took a narrow view of the statutory provisions in Chapter 110 governing the voluntary termination of parental rights and consent to adoption. In a recent case, the father voluntarily signed a form terminating his parental rights and the right to be notified of any future proceedings regarding the custody and adoption of the child. The child’s attorney then proceeded to ask the court for support, and the court held that the father had to pay at least until a final decree of adoption was entered.

9. Rights of Adopted Children

During the latter part of the twentieth century, the law eliminated many of the distinctions drawn between biological children and adopted children, but the court recently ruled that a will and trust drawn up in the 1930’s was governed by the old rule that adopted children were not included in the term “legal issue.” That ruling prevented the adopted great-grandchild of the testatrix/settlor from taking a share of a trust fund. See Watson v. Baker, __ Mass.__ (2005).

Conclusion

With the enactment of equitable distribution statutes around the country, and in particular in Massachusetts, finances and tax issues have become increasingly important in divorce cases. Judges, lawyers, and parties rely upon the expert testimony of financial and tax experts to help craft equitable financial outcomes. While adultery may be emotionally devastating, the courts are not willing to award the aggrieved spouse a larger share of the assets or alimony as heart balm. Financial wrongdoing, however, may lead to a better financial outcome for the innocent spouse.

Creative and knowledgeable advisors are always welcome at the bargaining table or on the witness stand.

Resources

There are many online resources. The following are consistently useful to the author:

1. www.socialaw.com: the website of the Social Law Library in Boston. The site offers a daily service publishing the cases decided by the Supreme Judicial Court and the Appeals Court. It also links to state statutes and other useful resources, including upcoming continuing legal education.

2. www.cse.state.ma.us: the website of the Child Support Enforcement Unit (CSE) of the Massachusetts Department of Revenue (DOR), the agency responsible for collecting child support in Massachusetts.

3. www.divorcenet.com: a national divorce site, including extensive materials on Massachusetts family law, and the only fully automated online interactive version of the child support guideline worksheet. The site also lists lawyers and allied professionals from around the country. A useful “Divorce Dictionary” created by Divorcenet is featured on the site.

4. http://straylight.law.cornell.edu/topics/divorce.html: an excellent resource that includes federal and state resources on many areas of law.

5. http://travel.state.gov/family/family_issues/divorce/divorce_592.html: a helpful source of information on foreign divorces, including links to the Social Security Administration, Veterans Administration, and the Internal Revenue Service regarding recognition of foreign divorces and eligibility for benefits.

6. www.lawlib.state.ma.us/forms.html#divorce: the state law library’s website provides links to free divorce forms. The site also offers a free document delivery service at www.lawlib.state.ma.us/docdelivery.html.

7. www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/index.html: online access to news and information about the Massachusetts Probate and Family Courts.

Other resources

1. Family law materials from the Massachusetts Continuing Legal Education (MCLE), www.mcle.org/MCLE_Web/ScriptContent/Index.cfm, written by lawyers for lawyers, an excellent source of up-to-date information including the annual Massachusetts Family Law Citator, a compendium of family law cases (current edition covers 1975 through September 2004). The Citator provides short case summaries. MCLE also publishes the annual Family Law Sourcebook including relevant annotated statutes, regulations, and court rules in one volume.

2. Massachusetts Practice Series on Family Law and Practice by Charles Kindregan and Monroe Inker, a multi-volume treatise often used by lawyers and judges. The text may be too technical for non-lawyers, but it is a “must have” for lawyers and judges.

3. Social Law Library – In addition to its online resources, this library located in downtown Boston has an excellent collection of family law materials, including MCLE publications, and audiovisual materials.

4. State Law Libraries – There are 17 libraries located around the state. Collections include MCLE publications and other family law material. For locations and directions, see www.lawlib.state.ma.us/locate.htm. Libraries offer free access to Lexis and Westlaw.

5. Various continuing legal education programs and related publications on family law offered by the Boston Bar Association, Massachusetts Bar Association, and Suffolk University School of Law. See www.socialaw.com for an online calendar of upcoming continuing legal education programs.

6. Massachusetts Lawyers Weekly, www.masslawyersweekly.com, a weekly publication dealing with all aspects of the law and legal community in Massachusetts. Subscribers receive daily alerts on family law and other practice areas of their choice.