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NAVIGATING THE DELICATE AND COMPLEX ALIMONY STANDARDS IN MASSACHUSETTS: LIVING IN A POST OPENSHAW AND CAVANAGH WORLD Many couples that are getting divorced in the Commonwealth of Massachusetts have to deal with the ever-changing laws of alimony and child support as put in place by the state’s highest courts. In the past three years, the landscape has changed so drastically that it is hard to find competent practitioners who can navigate through this difficult process. I have represented clients, and have gone to fight for them, who are just so confused and shocked regarding the whole daunting process of alimony. Even the negotiation process for settlement is a scary and nerve racking process because many lawyers don’t have a firm grasp of these new laws. In turn, many lawyers don’t do their clients justice when they are bargaining for alimony and the clients walk away with less due to a misunderstanding of the new laws. At Bentley Law Group, our attorneys are specifically trained to help our clients with a compass through the never ending maze of catacombs and pitfalls regarding alimony. We understand our clients and their desire for thorough and competent representation during this difficult process. As both a lawyer and tax practitioner I believe the best way to address the alimony minefield is to discuss the new laws of the Probate and Family Court system and the tax laws that are interwoven into each of these new laws. Many practitioners try to understand the new laws but struggle with the tax implications of alimony. The following is lengthy blog, but t Bentley Law Group, we feel it is necessary to inform clients and future clients about what they are facing in alimony cases. In the following material you will read,I will explore the complex interaction between two recent alimony cases, Openshaw v. Openshaw (2024) and Cavanagh v. Cavanagh (2022), which have disrupted alimony practice in Massachusetts against a backdrop of shifting tax rules and the state’s increasingly complicated Child Support Guidelines. THE OLD STANDARD OF ALIMONY AND ITS TAX IMPLICATIONS: THE 30%-35% STANDARD 2013-2019 The Massachusetts Alimony Reform Act (ARA), as set forth in M.G.L. c. 208, § 53, provides Massachusetts’s courts with specific parameters for calculating the amount of alimony in a divorce case. Specifically, the statute suggests that judges should “cap” alimony at an amount that should generally not exceed the recipient’s “need” or 30–35% of the difference in the parties’ gross incomes. Since 2017, however, interpreting the ARA has become increasingly complex, starting with the loss of tax deductibility for alimony payments in 2019, followed soon after by several Supreme Judicial Court (SJC) decisions that have increased the legal exposure of Massachusetts payors for higher support orders. As noted above, the ARA was conceived as a “cap” for alimony calculations, where the statute creates a presumptive ceiling on alimony based on the recipient’s “need” or 30–35% of the difference in the parties’ gross incomes. Until 2019, alimony was tax-deductible for state and federal tax purposes, meaning a former spouse could deduct alimony payments from their taxable income. Deductibility allowed many high-earning alimony payors to recover more than 40% of their alimony payments through tax savings based on their tax bracket. In practice, deductibility allowed the ARA’s language to act less like a “cap” and more like a formula, with most alimony cases resolving with an order calculated at 30–35% of the difference in the parties’ gross incomes between 2013 and 2019. In essence tax deductibility was a win-win in alimony cases. Most alimony payors, who typically generated earnings at higher tax brackets, received a substantial tax refund through tax deductibility. Meanwhile, most alimony recipients, who typically fell within substantially lower tax brackets, were often content to pay the taxes on the alimony they received at their lower tax rates, since paying the taxes generally meant higher alimony awards. A DRASTIC CHANGE IN THE TAX LAWS In 2019, this delicate balance was thrown off by the federal Tax Cuts and Jobs Act (TCJA), which passed in 2017 and became law two years later. Under the TCJA, alimony payments would no longer be deductible for federal tax purposes in new divorce cases starting in 2019. By tax year 2022, Massachusetts followed suit, eliminating state deductibility. The impact of TCJA continues to be felt in Massachusetts as courts grapple with applying the ARA’s 30–35% “formula” in a world where alimony payors can no longer write off payments to their former spouses. In many alimony cases, attorneys submitted worksheets to judges that reverse-engineered the ARA’s 30–35% calculation into an after-tax number. The reality is a shocking as most alimony calculations end up between a 20% to $25% figure that is far below the old 30% to 35% standard A FIRE STORM HITS ALIMONY AND CHILD SUPPORT IN THE CAVANAGH CASE The Supreme Judicial Court (“SJC”) changed the landscape of alimony and child support in Massachusetts in the seminal case of Cavanagh v. Cavanagh, 490 Mass. 398 (2022) (“Cavanagh”). In its massive scope contained in the written opinion, the SJC issued one of its lengthiest family law decisions to date, and introduced a new method family court judges must apply when calculating alimony and child support. In so ruling, the Court provided guidance about what types of income must be included and excluded in child support calculations. The crux of the SJC’s decision was that is was an abuse of discretion for a trial judge to calculate child support first so as to deny alimony based on the trial judge’s understanding that, under G.L. c. 208, § 53(c)(2), the same income relied on to calculate child support cannot be used also to calculate alimony. Many within the family law practice consider the Cavanagh decision a radical decision, and many judges and lawyers are confused about how to proceed forward on the issues and how to apply the new rules. CAVANAGH’S NEW CALCULTIONS FOR ALIMONY AND CHILD SUPPORT: SQUEEZING EVERY NICKEL OU OF THOSE WHO ARE JUDGED TO PAY ALIMONY Prior to Cavanagh, many family law judges and practitioners believed that child support should be calculated before alimony, and alimony was to be awarded only if there was excess income not used in the child support calculation. The Cavanagh Court rejected that approach, and held that “[w]here, as here, a judge chooses to calculate the child support and then denies alimony on the basis that § 53(c)(2) prevents the use of the payor’s income to calculate alimony, the judge has abused her discretion because she has failed to do the fact-specific analysis of the family’s circumstances required by § 53(a).” Id. at 409. The SJC then introduced a new three-step method that must be followed in cases in which both alimony and child support are involved. The method is as follows: (1) Calculate alimony first, in light of the statutory factors enumerated in § 53(a) and the principle that, with the exception of reimbursement alimony, the amount of alimony should be determined with reference to the recipient spouse’s need for support to allow the spouse to maintain the lifestyle enjoyed prior to the termination of the parties’ marriage. Then calculate child support using the parties’ postalimony incomes. (2) Calculate child support first. Then calculate alimony, considering, to the extent possible, the statutory factors enumerated in § 53(a). We acknowledge that in the overwhelming majority of cases, the calculation of child support first will preclude any alimony being calculated in this step. (3) Compare the base award and tax consequences of the order that would result from the calculations in step (1) with those of the order that would result from the calculations in step (2), above. The judge should then fashion an order which would be the most equitable for the family before the court, considering the mandatory statutory factors set forth in G. L. c. 208, § 53(a), and the public policy that children be supported as completely as possible by their parents’ resources, G. L. c. 208, § 28, and then fashion the order such that it reflects, or alternatively is responsive to, those considerations. Where the judge chooses to issue an order pursuant to the calculations in step (2) or otherwise that does not include any award of alimony, the judge must articulate why such an order is warranted in light of the statutory factors set forth in § 53(a).[2] The SJC did not provide any guidance regarding how judges are to determine which order will be “the most equitable” under this new method. Moreover, Step 3 of the new method suggests that litigants will need to retain tax experts to calculate and then present to the court the tax consequences of the different potential alimony and child support orders, and the parties’ expected net after-tax incomes under both scenarios. Further, as a matter of public policy, if the parties cannot afford or otherwise fail to hire the appropriate tax experts, support awards calculated using the first test may be so high that they discourage a payor’s continued employment or future employment because of the harshness of the calculations. Types of Income to be Included in Child Support Calculations The Cavanagh Court considered the following different types of income, and determined whether they should be included in calculating child support: • Interest and dividends: Again referencing the CSG, the SJC explained that interest and dividends are to be included within income without qualification; that is, regardless of whether they are a regular source of income. Accordingly, the trial judge erred by excluding income from the father’s savings and 401k plan to the extent such income included interest and dividends. • Capital gains: Noting that the CSG state that capital gains need only be treated as a regular source of income where they relate to “real and personal property transactions,” the SJC clarified that they should otherwise be included in income even when not regular. The trial judge therefore erred by excluding capital gains on the father’s savings and 401k plan to the extent they included capital gains on transactions other than those related to real and personal property. • Income from second job: Insofar as the parties’ separation agreement provided that income from the father’s second job “shall not be utilized to calculate any future support obligations, whether child support or alimony,” the SJC held that this provision was void because “[p]arents may not bargain away the rights of their children to support.” at 422 (internal citation omitted). It remained within the trial judge’s discretion to consider this income when calculating child support. • Employer contributions to retirement accounts: In an issue of first impression in the Commonwealth, the SJC held that employer contributions to retirement accounts constitute income for purposes of calculating child support. The SJC found persuasive the reasoning of a Pennsylvania court, which held, “if we were to determine that an employer’s matching contributions are not income, it would be possible for an employee to enter into an agreement with his employer to take less wages in exchange for a heightened matching contribution. This would effectively permit an employee to shield his income in an effort to reduce his child support obligation.” Id. at 424 (internal citation omitted). The trial judge, therefore, did not abuse her discretion in including these contributions in the father’s income. Notably, the SJC did not explain how it is equitable to order a payor to pay support in present dollars on income that the payor cannot access without penalty until the payor reaches retirement age. • Employer contributions to health savings accounts: The SJC held that because employer contributions to health savings accounts (“HSAs”) are considered part of an employee’s compensation package, they properly constitute income for purposes of calculating child support. Again, the trial judge did not abuse her discretion in including these contributions in the father’s income. In a recent decision, the Appeals Court has already relied on the Cavanagh decision for the proposition that “principles restricting consideration of income derived from assets received in divorce for purposes of alimony have ‘no bearing’ on consideration of such income for purposes of child support.” Duval v. Duval, 101 Mass. App. Ct. 752, 763 (2022) (holding that on remand the trial court was free to consider husband’s dividend income from his business interest in connection with the support of the children). SUMMING UP CAVANAGH Three years after the decision it remains to be seen how closely trial judges and the family law bar will analyze and apply the Cavanagh methodology for calculating alimony and child support. More guidance from the SJC and the Appeals Court will be needed as to how to determine which approach to support is “most equitable,” and how to deal with the tax consequences of different awards. As every lawyer and judge knows, judges have broad discretion in applying the law. A calculation in one court might not be the same in another family court in Massachusetts, due to the analysis by the sitting judge. Until such guidance is received, Cavanagh remains open ended and is subject to constant squabbles among lawyers and judges alike. MORE DIESEL FUEL ON THE FIRE: ONE’S LIFESTYLE AND SAVINGS: ENTER OPENSHAW To confuse the delicate balance of alimony and the changing dynamics since Cavanagh even more, the SJC shed new light on what it means to "live" a certain lifestyle as a married couple and how those habits should be reflected in post-divorce alimony. The case, Openshaw v. Openshaw (2024), revolved around a couple who, during their marriage, didn't just focus on living well but also on saving wisely. When their marriage came to an end, the question arose: should their habit of saving be considered part of their marital lifestyle for the purposes of determining the appropriate amount of alimony? The court's answer was a resounding YES. In essence, the court argued that saving isn't just a financial strategy; it's a way of life. For the Openshaws, who enjoyed a generous annual income far exceeding their living expenses, setting money aside wasn't merely about preparing for a rainy day. It was a consistent part of their lifestyle. The Openshaw decision allows for savings to be considered a part of an alimony recipient’s needs if: (1) there is a clear record and pattern of saving by the parties during their marriage; and (2) there is sufficient income post-divorce to allow both parties to maintain the standard of living enjoyed during the marriage. Although the tension between “need” versus “ability to pay” is nothing new with regards to alimony in Massachusetts, the now clear precedent of including savings in a recipient’s “need” will certainly change the way that courts and litigants will approach alimony cases for high wage earners going forward. The implications of this are significant. When determining the need for support, courts can look beyond current spending habits to consider the entire scope of how a couple lives. This includes saving for the future. This means that in divorces where both parties have the financial means, both can be expected to maintain not just the living standards they enjoyed while married but also the saving habits that were part of their marital lifestyle. CONCLUDING THOUGHTS The information provided in this blog is to educate the lay person what to expect in alimony cases. The issues continue to be open ended and the broad discretion of the judges has courts ruling differently on the same issues. Give us a call at Bentley Law Group and consult with a family law expert and get the representation you deserve.

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