Factors for Deciding Alimony and Equitable Division of Assets

In Massachusetts, a judge in a divorce case under “equitable distribution” laws divides marital assets. In MA, there is no automatic 50% – 50% division of marital property. There is also the new alimony reform act.

In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be assigned, a judge in the Massachusetts divorce courts need to consider the following sixteen factors:

1. Length of marriage
2. Conduct of the parties during marriage
3. Age of the parties
4. Health of the parties
5. Station of the parties
6. Occupation of the parties
7. Amount of income of the parties
8. Sources of income of the parties
9. Vocational skills of the parties
10. Employability of the parties
11. Estate of the parties
12. Liabilities of the parties
13. Needs of the parties
14. Opportunity of the parties to acquire future capital assets
15. Opportunity of the parties to acquire future income
16. The present and future needs of dependent children of the marriage

Additional Factors in the Alimony Equation the court may consider:

1. Contribution of the parties in the acquisition of their respective estates.
2. Contribution of the parties in the preservation of their respective estates.
3. Contribution of the parties in the appreciation in value of their respective estates.
4. Contribution of each of the parties as a homemaker to the family unit.

Both parties can agree to separate informally. You need to discuss the issue related to financial arrangements, the children and property. Put the agreement in writing and make sure you both have a copy.

Focus on the kids. The children should always be a priority but many times are not. Once you’ve decided to divorce, try to tell your children together and show them a united front so that they can see, although you and your spouse cannot live together any longer, they still have parents who love and will care and protect them.

1. Do not use the children as pawns.
2. Do not use your children as messengers.
3. Do not bad mouth your spouse to the children.
4. Do not discuss spousal disputes with the children.
5. Do not question the children about your spouse.

Prepare a detailed marital history. Essentially, you should try to chronologically summarize all of the relevant facts related to your relationship with your spouse.

1. Length of the marriage
2. Conduct of the parties
3. Age of the parties
4. Health of the parties
5. Station (status) of the parties
6. Occupation of the parties
7. Contribution to the marriage
8. Likelihood of either party to acquire future assets
9. Needs of the children

Gather information and documents. You can avoid many months of litigation and thousands of dollars in legal fees if you start creating schedules and plans. Consider:

1. The Parenting Schedule
2. Week-to-week Schedule
3. Holiday/Vacation Schedule
4. Birthdays (Shared Time, Parties, Gifts, Invitations, Rules Relating to)
5. Changes in the Schedule
6. First Option (Right of First Refusal) to Parent
7. Designation of Physical Custody

Exchanges of Children

Rules for Transition:

1. Financial
2. Child Support
3. Extra-Curricular Expenses
4. Summer Camp
5. Health Insurance – Policies, Coverage, Co-Pays and
6. Uninsured Expenses
7. Dental Expenses
8. Life Insurance and Beneficiary issues
9. Child Dependency Credits
10. School Costs
11. Planning for College

Moving

Agreed-upon Distance for Moving~Notice Requirements

1. Ground Rules
2. Parental Autonomy
3. Children’s Activities – Sign-Ups
4. No Disparaging Comments Clause
5. No Divorce-Related Discussions Clause
6. Significant Others Clause
7. Overnight Visitors in Children’s Presence Clause

Miscellaneous

• Shared Routines and Expectations for Children
• Sickness
• Children’s Belongings
• Clothing
• Extended Family
• Parenting Skills
• Future Disputes
• Reevaluation of the Plan
• Legal and physical custody
• Parenting schedule
• Removal from the Commonwealth
• Exchange of educational and medical information
• Events triggering emancipation
• Insurance – medical, life (amounts and increases)
• College expense obligations
• Dependency exemptions
• Prenuptial agreement, if any
• Jointly-held property
• Debt
• Legal fees associated with divorce
• Inheritances
• Retirement accounts
• QDROs
• Tax Implications
• Marital home
• Maintenance and repairs
• Real estate agency
• Moving and storage
• Rights to marital home rental income, if any
• Costs/income associated with one spouse occupying marital home
• Vacation property
• Transfer of vehicles
• Photo albums and videos
• Pets
• Alimony
• Merger vs. survival clause
• Tax issues
• Tax filing status during the last year of marriage
• Cooperation if joint filing
• Rights to refund, division of debt thereof
• Cooperation in case of tax audit
• Proof of income, annual bonuses, etc.
• Indemnification
• Waiver of right to after-acquired property
• Future modification

Settlement Process

A divorce settlement reached between the spouses will almost always be more favorable than the likely outcome of a contested trial. Settlement is preferred because there are opportunities for compromise.

How long does a divorce take?

It depends on the type of divorce that is pursued. A completely uncontested divorce, followed by a joint petition, may be completed very quickly. A contested custody case, on the other, may not be complete for more than a year.

How is custody determined?

The Court decides guided by “in the best interests of the child.” The Court will look at all relevant circumstances (a discretionary standard) including (among other things) age of the children, day-to-day routine, and which parent has been primarily responsible for the daily care; and will enter a provision for care, custody, and financial support of the child(ren) in the Judgment of Divorce, Judgment of Paternity or Judgment of Custody.

When custody is disputed, the Court may appoint a Guardian Ad Litem (GAL). The Court generally directs a GAL to investigate facts and allegations surrounding custody and will file a report with the Court, which will often contain custodial recommendations. The Court will consider the GAL’s findings in arriving at a decision as to custody.

Child related matters are always subject to modification and a different standard applies when a parent seeks to remove a child permanently from the Commonwealth over the objection of the other parent. In such circumstances, the Court will apply the “significant advantage test.”

How is child support determined?

Child support is the amount of money a so-called “non-custodial parent” pays to the “custodial parent.” In most cases, child support will be determined by formula according to the Massachusetts Child Support Guidelines. The Guidelines will take the gross income, amount of each party, as well as the number of children, the cost of childcare, and the cost of health insurance into consideration. Child support is non-taxable to the recipient spouse and is not tax deductible for the payor spouse. Child support is modifiable based upon a material change in Circumstances.