In a landmark decision, the Massachusetts Supreme Judicial Court in Cavanagh v. Cavanagh issued several new rulings on the treatment of alimony and child support in divorce, which have changed the way Probate and Family Court judges and attorneys address these issues. Pre-Cavanagh, courts typically only ordered a spouse to pay alimony and child support if the parties’ combined gross income exceeded the Child Support Guidelines.
The key takeaway points from Cavanagh are as follows:
- Concurrent Alimony and Child Support Orders: In every case where child support and alimony are available, the court must consider and calculate concurrent orders using a 3-step analysis. First, the Court must consider and calculate alimony first and then child support. Second, the Court must consider and calculate child support and then alimony. Finally, the Court must consider the tax consequences of each scenario, the factors enumerated in M.G.L. Ch. 208 §53(a) and issue orders that are most equitable for the family. The Court also has the discretion to find that neither scenario is equitable and issue different orders.
- Bargaining Power of Alimony and Child Support Orders: The proposition that child support belongs to the children and alimony belongs to the recipient spouse remains in place. Separation Agreements limiting the definition of income for child support, such as a limit excluding income from second jobs or rental income, are void as a violation against the public policy that parents are prohibited from bargaining away the rights of their children to child support. While the parents may not bargain away the rights of the children, the Court still has the discretion to deviate from the Child Support Guidelines. Now more than ever, arguments for deviations from the Child Support Guidelines may be the practice. However, it appears, at least for now, that parties may limit the definition of income for alimony orders and waive rights to alimony orders.
- Employer contributions towards Retirement and Health Savings Account: The definition of income for child support orders has become more expansive, specifically to include as income employer match contributions to retirement accounts and employer contributions to health savings accounts. Historically, neither of these employer contributions were considered income for purposes of child support orders. Now, the courts are mandated to consider these as sources of income for child support orders.
- Scope of the Pre-Trial Order: When the court schedules a case for trial, typically, there is a trial order identifying the contested issues for trial. The scope of the trial is now limited to the contested issues identified in the trial order.
- Future Modifications: Interestingly, Cavanagh made a point of differentiating between initial alimony orders and subsequent modifications of alimony orders. Pre-Cavanagh, if a party had waived a right to past or present alimony and sought a future alimony order, that party had to prove a material change in circumstance since the prior judgment as well as the factors enumerated in M.G.L. Ch. 208 §53(a). Post-Cavanagh, it appears the standard for modification of alimony orders has changed. If there was a waiver of past and present alimony the moving party, no longer needs to prove a material change in circumstances.
It is important to note that, while the Massachusetts Supreme Judicial Court has opened the door for a Court to issue concurrent alimony and child support orders, in order for there to be an alimony order the Court must find that there is an ability to pay alimony by the payor spouse and that the recipient spouse is in need of alimony to maintain the marital lifestyle enjoyed by the parties during the marriage. This means that a Court, after conducting the 3-Step Analysis, may still decline to issue an alimony order if the requirements of payor ability and recipient need are not met.
As you can see, the rulings in Cavanagh have invited more scrutiny of negotiated agreements and a foreseeable increase in matters being litigated. The realities of a post-Cavanagh divorce remain to be seen. The impact of Cavanagh on divorces is very case-by-case. For some, this may be seen as a victory and others a defeat.
The most important takeaway is that if you are thinking of filing for divorce, have been served with a Complaint for Divorce, or have been divorced and have existing child support orders, that you contact the attorneys at Karpenski & Schmelkin, (508) 231-5765. Our attorneys are experienced and dedicated Divorce and Family Law Attorneys and will advocate and guide you at each step of your case.