By Michael Franklin
A divorce can be extremely stressful both emotionally and financially. If you are going through a divorce knowing how the law applies to you may ease this stress. Here are important areas of divorce law for Massachusetts residents:
Mass. Gen Laws Chapter 208 Section 34 governs property division for a divorce. Property is divided based on the length of the marriage, the conduct of the parties during marriage, the age of the parties, the health of the parties, the station or lifestyle of the parties, the occupation of the parties, the vocational skills of the parties, the employability of the parties, the amount and sources of income of the parties, the estate of the parties, the liabilities of the parties, the needs of the parties, the opportunity of each party for the for the future acquisition of capital assets, the opportunity of each party for the future acquisition of income, the present and future needs of the dependent children of the marriage, the contribution of each of the parties in the acquisition, preservation and appreciation of the marital estate and the contribution of each party as a homemaker to the family unit.
There are two types of custody of children, legal and physical. When a Court awards legal custody of a child to a party it means that party shall have decision making power on issues regarding the child’s education, religion, as well as elective medical, dental and other types of treatment. If both parties are awarded joint legal custody, it means that both must assent to such decisions. If a party is awarded sole physical custody of a child then that party’s residence is the primary residence of the child and that party has the primary caretaking responsibilities for the child. Joint physical custody of a child means that both parties share the primary caretaking responsibilities for the child and the child’s residence is divided between the parties.
Generally, the noncustodial parent must pay the custodial parent child support. The amount of child support is determined by a formula known as the Massachusetts Child Support Guidelines. Essentially, both parents incomes are plugged into this formula and credit is given to the party who pays for medical and dental insurance, daycare and who may be obligated to pay child support for another older child. In situations involving joint physical custody, the Guidelines don’t necessarily apply. However, in such situations, child support may be determined by running the Guidelines for both parents as if they are the custodial parent and the party with the higher income would pay the other the difference. Child support is mandatory and usually can’t be waived by either party. Child support is not considered taxable income to the recipient and it is not tax deductible for the payer.
Alimony is spousal support. It is based on need and ability to pay. In many instances where a party is obligated to pay child support, the noncustodial party may not have the ability to pay alimony in addition to child support. In such situations, the Court will not award alimony. Alternatively, if one party earns an income which is significantly higher than the other party and the Court determines the party with the higher income has the ability to pay alimony then the Court will order alimony to equalize disparities. The Alimony Reform Act of 2011 specifically addresses the length of time a party is obligated to pay alimony should the Court find that the party has the ability to pay it. The length of the alimony obligation is dependent on the length of the marriage. The Act provides relief for obligors from long term marriages who contemplate a lower income after retirement. Prior to the Act, once alimony was ordered it was in place for life regardless of retirement. Further, the Act defines specific types of alimony (i.e. general alimony, rehabilitative alimony, reimbursement alimony and transitional alimony. Finally, alimony is tax deductible to the payer and is considered taxable income to the recipient.