This article was originally published in the March/April 2014 issue of Massachusetts Family Law Journal.
Copyright © 2014 by Matthew Bender & Co., Inc., a member of the LexisNexis Group.
Reprinted with permission. All rights reserved.
Over the past year, Massachusetts family law practitioners have been faced with sweeping changes in two substantive areas of their practice as a result of the passage of the Alimony Reform Act (hereinafter “Act”), effective March 1, 2012, and the newly promulgated Child Support Guidelines (hereinafter “CSG”), effective August 1, 2013. This article will focus on the interface of alimony and child support as set out in the Act and the CSG. Approaches to dealing with concurrent orders of alimony and child support will be examined, together with consideration of the tax consequences of each approach. Given that the Act contains a prohibition against using the same dollars for child support and alimony, it is critical that practitioners understand their options when faced with the interplay of these two forms of support. Additionally this article will suggest ways that support orders may be maximized to meet the “needs” of the parties through use of deviations set forth in the Act and CSG. The discreet definitions of what constitutes “income” under the Act and CSG will also be highlighted, particularly as this issue relates to calculating the appropriate amount of unallocated alimony and child support.
A. THE ACT: The Act reforms the earlier alimony statute, G.L. c. 208, Section 34 by expanding the concept of alimony and defining its duration. The following are some of the salient changes brought about by the Act:
- DURATIONAL LIMITS: The period of the alimony obligation is determined by the length of the marriage and form (type) of alimony;
- TYPES OF ALIMONY: General term alimony applicable to marriages longer than five years; reimbursement alimony and transitional alimony applicable to marriages of five years or less and rehabilitative alimony limited in duration to five years;
- AMOUNT OF ALIMONY: A percentage (30% – 35%) of the difference between the incomes of the respective parties;
- RETIREMENT: Payor’s reaching the normal retirement age to receive full benefits under the United States Old-Age Social Security act is an event that terminates alimony unless the recipient can show good cause by clear and convincing evidence to extend alimony;
- COHABITATION: Cohabitation as defined by the Act, constitutes a change of circumstance which may justify termination, reduction or suspension of the existing alimony obligation;
- “INCOME” TO BE CONSIDERED IN SETTING ALIMONY AMOUNT: The Act defines the forms of income to be included and excluded for each of the parties in the calculation of income;
- EQUITABLE DISTRIBUTION: Judicial determination of the equitable division of the marital estate is to be made after determination of the amount and duration of alimony, if any;
- FACTORS TO BE CONSIDERED IN DETERMINING AN AWARD OF ALIMONY: The Act has introduced new factors on which the trial judge must make findings of fact when setting alimony.
B. THE CSG: The 2013 CSG reflect major changes in policy regarding child support and parenting behavior. For the first time, the CSG introduce the concept of “Parenting Time” and tie it to the amount of child support. The revised CSG provide greater guidance in circumstances where the award of child support for children over the age of 18 is appropriate. The following are the significant changes in the CSG:
- POLICY SHIFT: The drafters of the 2013 CSG were influenced by policy considerations that differ significantly from those that inspired the 2009 Child Support Guidelines. Child support is based on the actual expenses of raising a child; previously, the amount of child support was based on the costs of raising a child within a given household/ family. The historical approach took into consideration the child(ren)’s household/family expenses which is no longer the governing principle. The CSG Task Force relied on the research of two economists who provided economic data illuminating the actual expenses of raising a child, separate and apart from the household expenses; as a result, as total parental income increases, child support represents a declining percentage of total parental income. In the lower income brackets, child support represents 22% of total parental income, whereas in the higher income brackets, the child support guideline amount represents approximately 11% of total parental income. As a consequence of this major shift in economic policy, the child support levels have been markedly reduced across the income spectrum.
- PARENTING TIME: The amount of parenting time that each parent has with the children directly affects the amount of child support that parent will pay or receive. As the parenting time of the non-custodial parent (higher earner) increases, the amount of child support decreases. “A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third.” [See Summary of Key Changes to the Existing Guidelines.] Significantly, nowhere in the CSG is “parenting time” defined. The CSG has created an unfortunate and unwelcome miasma wherein child support may not be determined until and unless there is a Parenting Plan in place – either by agreement of the parties or by court order. The interdependence of parenting time and child support invites parental conflict and encourages unrealistic and inappropriate requests for parenting time in order to reduce child support obligations.
- OVER THE AGE OF EIGHTEEN: The Summary of Key Changes to the Existing Guidelines states, “While the Guidelines apply, the court may consider a child’s living arrangements and post-secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.”REASONS FOR DEVIATION: Three important reasons for deviation in the amount of child support were added: (1) extra-ordinary health insurance expenses; (2) a disproportionate allocation of child care costs in light of parental income; and (3) the provision of less than one third of the parenting time of the children.
II. HOW THE INTERPLAY OF
ALIMONY AND CHILD SUPPORT IS ADDRESSED IN THE ACT AND THE CSG
A. SAME VERSUS DIFFERENT DOLLARS:
The Act clearly states that alimony cannot be set using the same dollars utilized in calculating child support. Section 53(c)(2) of the Act provides that, “Gross income which the court has already considered for setting a child support order” shall be excluded from the alimony calculation (as are other categories of income set forth in Section 53(c)(1)). The Act further states in Section 53(d) that “nothing in this section limits the Court’s discretion to cast a presumptive child support order under the child support guidelines in terms of unallocated or undifferentiated alimony and child support.” This language has created a hornet’s nest of confusion. Does the Act require, or strongly imply, that child support must be determined prior to alimony? Section 53(c)(2) anticipates the prior fixing of the child support order, but Section 53(d) appears to reverse the approach and encourages judicial consideration of alimony at the outset. How exactly alimony is to be determined when combined with child support in an unallocated order of child support and alimony is ambiguous. Despite this uncertainty, what is clear is that the same dollars must not be used twice. To avoid using the same dollars twice, one may either exclude all income used to calculate child support and calculate alimony only on the remaining dollars, or alternatively, one may calculate alimony first and adjust the income of each party to reflect the award of alimony and thereafter determine child support utilizing the Child Support Guidelines.
B. CONCURRENT ORDERS:
Regardless of when child support and/or alimony commence, the payment of either tolls the durational limits of alimony as stated in Section 53(f): “Where the court orders alimony concurrent with or subsequent to a child support order the combined duration of alimony and child support shall not exceed the longer of (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support.” In fashioning child support and alimony orders, which may run either concurrently or sequentially, in each particular case counsel would be wise to evaluate and compare the applicable length of the alimony obligation with the estimated length of the child support obligation. Such an analysis will help determine the maximum duration of support available to the recipient spouse or the shortest period to which the payor may be obligated.
The maximum durational limits of alimony outlined in the Act deserve major attention when contemplating how best to address concurrent orders of child support and alimony. There are three distinct types of orders that might be entered: (1) a separate alimony order and a separate child support order; (2) a single order that creates an unallocated alimony and child support obligation with a single termination date; and (3) a single order that creates an unallocated alimony and child support order with two distinct termination dates for child support and alimony.
In short marriages with young children, the child support order will run far longer than the statutory length of alimony. Unallocated orders of alimony and child support may be desirable for tax purposes from the vantage point of the payor and may result in more after tax total support for the recipient; furthermore, such orders may result in higher total support for the recipient without any detriment to the payor. However, such unallocated orders, particularly in short marriages, must be carefully crafted to avoid adverse tax consequences arising from the termination of alimony upon a child related contingency. If there is one child, then the reduction in alimony must occur more than six months prior to, or after, the child reaches the age of 18, 21 or age of majority. C.F.R. 1.71T Q18. If there is more than one child, reductions in alimony payments must occur more than one year before or one year after each child reaches a “milestone” age. C.F.R. 1.71T Q18.
As child support levels never exceed 22% of the parties’ total gross income, alimony awards of 30-35% of the difference between the parties’ incomes may produce a higher support order. Care must be taken in long term marriages to ensure that support of the recipient spouse is at least as high while the children remain unemancipated as it is thereafter.
III. CAUTION AT THE INTERSECTION
OF ALIMONY AND CHILD SUPPORT ORDERS
There are currently 51 Probate and Family Court judges deciding cases involving child support and alimony, and it is only a slight exaggeration to say that there are almost as many interpretations of the limited and ambiguous instructions contained in the and Act and the CSG. Until there is sufficient guidance from the Appellate Courts, practitioners have to be attuned to the interpretations of the individual judges. There does, however, appear to be unanimity on two issues: (1) the trial judge may not deviate from the appropriate amount and duration of alimony as set forth in the Act, absent making specific findings of fact; and (2) every unallocated order of alimony and child support must be supported by a tax analysis prepared by the litigants. Judges are in agreement that without a tax analysis presented by the litigants, the trial judge will not ‘sua sponte’ set an unallocated award of alimony and child support at any stage of the proceeding – including at the hearing for temporary orders.
Lawyers should consider the most advantageous manner in which to present their request for support of the children and the dependent spouse. There appear to be four major methods used by the Probate and Family Court bench. Different judges utilize different approaches to the conundrum of how to mesh child support and alimony, but all of the judges admit to often ‘applying various approaches to determine what feels right.’
A. METHODS FOR CALCULATING THE INTERPLAY OF CHILD SUPPORT
AND ALIMONY AWARDS:
The Task Forces assigned to write the Guidelines and the Act did not run numbers to test the interplay of alimony and child support. The effect of the various outcomes produced by the methods outlined below can best be understood by applying each method to the same fact pattern.
FACT PATTERN: Husband is employed full time and earns $300,000 annually; Wife is the primary custodial parent of their one minor child and earns $50,000 annually. The Husband has one-third of the parenting time. For simplicity, no deductions will be taken for health insurance or day care expenses.
The four primary approaches are the following:
- Calculate child support according to CSG, using the parties’ incomes as defined therein; then calculate alimony based on the remaining income of the higher earner.
- Apply alimony formula of the Act to the parties’ incomes as defined by the Act; enter an order based upon a percentage (30-35%) of the difference between the parties’ incomes; then calculate child support based on the parties’ incomes after attributing/deducting alimony using the CSG definition of income.
- Enter an unallocated alimony and child support order which equalizes the after tax dollars in each household. This approach does not rely on either the Act or CSG but is motivated by achieving parity between the parties.
- Enter an unallocated alimony and child support order by adding the parties’ incomes together; order a percentage of all income to each party such that, for example, the payor receives 60% of the total income and the recipient receives 40% of the total income. This method does not result in equalizing after tax income but is suitable where the payor’s earnings far exceed the recipient’s.
Method #1: Apply CSG to the maximum combined income of $250,000. Utilize $200,000 of the Husband’s income and all of the Wife’s income ($50,000); apply alimony percentage of 32.5% to remaining $100,000 of Husband’s income.
Method #1 Result: Husband pays child support of $662/week ($34,424 annually); alimony percentage of 32.5% applied to $100,000 of Husband’s income not used for child support, yields an alimony order of $625/wk ($32,500 annually).
Total Support Obligation Method #1: Child support: $34,424, Alimony: $32,500; Wife receives total support of $66,924 which is 33.4% of parties’ gross incomes.
Tax effect based on Husband claiming child as tax dependency, Wife filing head of household, and excluding any mortgage interest or real estate tax deductions:
Wife’s after tax income: $97,304 (41.11% of total after tax income)
Husband’s after tax income: $139,378 (58.89% of total after tax income)
Method #2: Determine alimony obligation prior to child support obligation. Apply alimony percentage of 32.5% to difference in parties’ gross incomes ($250,000) and then apply CSG to the parties’ gross incomes as adjusted after deducting alimony from payor’s income and adding alimony to the recipient’s income.
Method #2 Result: Husband pays alimony of $1,562.50/weekly ($81,250 annually); Child Support calculation is applied to Husband’s income after reduction of alimony obligation ($300,000 less $81,250) $218,750 and to Wife’s income augmented by alimony awarded ($50,000 plus $81,250) $131,250. The CSG applies up to a maximum combined income of $250,000 and the highest child support order according to CSG is $772/week for one child. The Wife’s gross income augmented by her receipt of alimony represents 37.5% of total gross incomes of parties (131,250/350,000). As the CSG apply only to combined gross incomes of $250,000.00 or less, in order to determine the appropriate child support payment by the Husband, child support has been calculated by applying the ratio of the parties’ adjusted incomes (alimony received by receipt/child support paid) to the maximum child support order under the CSG. The Husband’s child support order (based only on the first $250,000 of the parties’ gross incomes) is $483/week ($25,116 annually). The court has discretion in its treatment of income in excess of $250,000 under CSG. Generally the court will apply the same percentage formula to excess income if modest in amount. The Wife might therefore receive an additional modest amount of child support. Although the fact pattern assigns the parties’ over $250,000.00 of annual gross income, the practitioner should not be dissuaded from requesting unallocated orders where the combined family income is below $250,000.00.
Total Support Obligation Method #2: Alimony: $81,250, Child support: $25,116; Wife receives total support of $106,366, which when combined with her own income totals $156,366 and is 44.6% of parties’ total gross income.
Tax effect based on Husband claiming child as tax dependency, Wife
filing head of household, and excluding any mortgage interest or real
estate tax deductions:
Wife’s after tax income: $121,999 (50.71% of total after tax income)
Husband’s after tax income: $118,582 (49.29% of total after tax income)
Method #3: Enter an order of unallocated alimony and child support which approximately equalizes the after tax dollars available to each party. Increase percentage of alimony to appropriate level in order to achieve after tax equalization of parties’ after tax incomes.
Total Support Obligation Method #3: Unallocated Alimony and Child support of $117,000 equalizes the parties’ after tax income.
Tax effect based on Husband claiming child as tax dependency, Wife filing head of household, and excluding any mortgage interest or real estate tax deductions:
Wife’s after tax income: $120,958 (49.98% of total after tax income)
Husband’s after tax income: $121,040 (50.02% of total after tax income)
Method #4: Enter an order of unallocated alimony and child support by adding the parties’ incomes together ($350,000) and then assigning 60% of the total income to the payor ($210,000) and 40% to the recipient spouse ($140,000). In cases where one party is the sole or primary wage earner, the support order should reward and encourage the primary earner’s continued productivity.
Total Support Obligation Method #4: Unallocated Child support and Alimony: $90,000. Wife receives $140,000; Husband retains $210,000.
Wife’s after tax income: $102,936 (42.67% of total after tax income)
Husband’s after tax income: $138,295 (57.33% of total after tax income)
Whenever an unallocated order of child support and alimony is sought the request must be accompanied by a tax analysis. At the temporary order stage the tax analysis may be presented by a written submission from an accountant, incorporated into counsel’s written presentation to the court. It might also be set forth in a supporting memorandum that lays out the various approaches and thereafter compares the tax effected net dollars left to each party under the various scenarios. At trial it is necessary that there be testimony from an accountant or other suitably qualified expert witness, who should be a named expert witness in the Pre-Trial Memorandum and trial witness list.
The above fact pattern does not address the situation where the higher compensated spouse is the primary custodial parent. In such cases, two orders must enter: a child support order from the non-custodial parent to the custodial parent and an alimony order from the higher earning parent to the other parent. Once again, confusion reigns as to the proper sequencing of these two orders.
B. FURTHER REASONS FOR CAUTION AT THE INTERSECTION:
The duration of the child support order is set by the age of the parties’ children and the timing of their emancipation. The duration of alimony depends on multiple factors, some of which are not as certain as others. The Act sets guidelines for the length of alimony based on the number of years of marriage and based on the type of alimony. However, the Act enumerates reasons for deviation and therefore not only may the exact level of alimony be changed, but the date of termination of alimony may also deviate from the durational limits. In assessing which of the methods outlined in Section A works best in any particular case, the practitioner must carefully analyze all the relevant factors. The following list of questions should be considered to enable a thorough analysis:
- Have the calculations setting the amounts of alimony and child support utilized the applicable and appropriate ‘income’ of the parties as defined by the Act and the CSG?
- What is the expected duration of child support and when is emancipation expected?
- What is the expected duration of alimony according to the Act?
- Are any deviations under the Act applicable to the length of marriage?
- What is the likelihood of achieving a deviation in length or amount of alimony?
- What is the likelihood of alimony extending past full retirement age under the Act?
- Will the anticipated date of alimony termination coincide with a significant date/event in a child’s life, such as reaching age 18 or other milestone? If so, an unallocated order of alimony and child support must be carefully crafted with regard to the timing of reduction or termination.
- If an unallocated order of alimony and child support is selected, what method should be used to determine the amount of total support?
- If family income is under $250,000.00 is an unallocated alimony and child support preferable to an allocated order?
- Is the methodology utilized in crafting the unallocated order explained in the resulting documentation (proposal/stipulation/agreement), in particular, is it supported by a tax analysis?
- If there is an unallocated order of child support and alimony, does the agreement address the issue of remarriage prior to the emancipation of the children?
- If parents choose to ignore parenting time in setting either child support or an order of unallocated alimony and child support, has that understanding been incorporated in the proposal/stipulation/agreement?
- If parenting time has been used to determine child support, does the agreement address future changes in the parenting plan?
- If there are reasons for deviation from the Act and/or CSG, have those reasons been set forth in the final document?
The Act and the CSG have created many complex issues for practitioners as reflected in these questions. Practitioners should not approach cases assuming “one size fits all” or simply apply a formulaic solution to the interface of child support and alimony. Each case should be analyzed carefully and the resulting rationale, including methodology should be fully documented, especially in the context of unallocated orders of alimony and child support. In cases of discreet orders of child support and alimony, it is important to include the assumptions made regarding parenting time, duration and reasons for termination. Reasons for deviations should be set out in the final agreement/court order to provide essential reference data if modification is sought in the future.
IV. CONCEPT OF NEED
Section 53 (b) of the Act states the following: “Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 per cent to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued.” The meaning of this sentence is subject to various interpretations. Is “the recipient’s need” the ceiling on the amount of alimony regardless of it being less than 30% of the potentially payable alimony, or alternatively, is “need” cause to exceed the 35% maximum alimony award? The Act in subsection (d) of Section 53 sets forth an expansive list of causes for deviation in amount and duration of alimony. Upon written findings, the court can deviate from the presumptive alimony range on the basis of advanced age, chronic illness and unusual health circumstances. Of special note are the new grounds for deviation listed in Section 53(d)(5)-(9), such as: “sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce”[(d)(5)]; “a party’s inability to provide for his or her support by reason of a party’s deficiency of property, maintenance or employment opportunity”[(d)(8)]; and “upon written findings, any other factor that the court deems relevant and material” [(d)(9)]. In every case, practitioners would be wise to review Section 53(d) for reasons to increase or decrease alimony, which are far more diverse than under the prior Section 34. The causes for deviation in the Act and CSG invite creativity. Additionally, attention should be given to the list of 13 grounds for deviation in Section IV of the CSG, which are not meant to exhaust the reasons warranting deviation. For example, the costs of day care are not necessarily to be borne by the custodial parent and particularly not when a shared Parenting Plan is in place. “Other Child-Related Expenses” defined in Paragraph J of the CSG provide an opportunity for creative allocation between the parents. The exact language of this section is worth noting: “In such cases where the Court makes a determination that there are additional child-related expenses such as extra-curricular activities, private school, post-secondary education or summer camps, which are in the best interest of the child and which are affordable by the parties, the Court may allocate costs to the parties on a case-by-case basis.”
In both the Act and the CSG, the court must enter specific findings in support of deviation to overcome the presumptions of the Act and/or CSG. Where the needs of the recipient spouse are not met by the standard approach, counsel should adopt a broad understanding of the concept of support. Judges are inclined to augment the support order where need is well presented.
The goal of the Act and the CSG was to create predictability of support orders. However, the linguistic and definitional ambiguities, together with the multitude of reasons for deviation, will spawn substantial litigation. The nexus between parenting time and the amount of child support is a major conceptual change, complicating further the setting of child support orders. The failure of both the Act and the CSG to address concurrent and unallocated orders in a clear and meaningful way has made the work of the bench and bar yet more complex. Caution and careful analysis of each case is necessary. Practitioners should prepare documentation evidencing methodology and explaining presumptions and assumptions. The sweeping changes in family law of the past year have neither lessened nor simplified the work of the bench and bar – to the contrary the burdens have been increased.