Massachusetts Divorce Law Monitor : Boston, MA Divorce & Family Law Lawyer & Attorney : Nancy Van Tine : Burns & Levinson Law Firm

Hi there,

It appears we may be one step closer to alimony reform.  The task force on alimony reform filed its findings in mid-March, and the long, slow legislative process of the Commonwealth will now have an excellent document to work from.

The new template gives a lot of guidance for situations where there are no dependent children, while still allowing for judicial discretion (and good advocacy) in certain circumstances. 

I am not sure how the task force derived the time frames for the length of alimony terms, but they are as follows.  If the marital partnership (which can mean more than the time of the marriage) is up to:

• 5 years, than the maximum percentage of time alimony can be ordered paid is 50% (or 2.5 years)
• more than 5 and up to 10 years, 60%
• more than 10 and up to 15 years, 70%
• more than fifteen and up to 20 years 80% 

After a term of 20 years, the alimony can become "indefinite". I think this is problematic as the marriage becomes longer.  What really is the difference in earning capacity of a person who has been out of the workforce 16 years and one who has been out 20 years? It can result in arbitrary rulings.

The judges do have discretion, as with the child support guidelines, but in practice (just ask anyone who has dealt with an attorney from the Department of Revenue) "the guidelines are the guidelines" and they are very hard to get past.

The alimony guidelines are not yet law, they are far from it.  However, some judges are beginning to use them and to tell practitioners to expect them to rule following the task force's recommendations.

Best,

Nancy

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Hi there,

I received a comment from a reader about the recent article on sociopaths:

"Well, great, but how do we USE this knowledge to gain leverage or actually get the creep to respond?"

This really expresses succinctly, the frustration anyone would feel, dealing with a sociopath in an inherently conflicted situation.

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Hi there,

A while back I posted a piece about women now out-earning their spouses.  Apparently this has become grounds for divorce in some cases, and for adultery in others.

However there is always room for both humor and revenge, as this joke, which is circulating on the Internet, shows.

Best,

Nancy

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Hi there, 

Intangible Personal Property can be very technical to divide. 

Pensions, IRAs and other retirement assets, deferred compensation, and stock options all need to be carefully handled.

Tax issues are of course apparent - there is only one right way to divide each type of retirement asset and if you do it wrong the tax consequences to the person initially owning the pension can be severe. 

There are many precise aspects to handling stock options and deferred compensation as well. Agreements should be carefully done, as inadvertent results like in the Wooters case, can occur.  In that case the agreement did not specify how future stock options would be treated, because the husband was not in a job that had options at the time of divorce.  The definition of '"earned income" in the agreement, tracked the tax code which treats options as income when they are exercised.  As a result, when he changed employment and received options they were treated as part of his income for support.  

Deferred compensation comes in varied forms.  Your attorney will need to be very familiar with the individual business plans that cover the particular compensation in question.

Business interests and professional practices require valuation and may well require the services of a forensic accountant if there is an issue of hidden income.

You should be mindful of the basis and potential capital gains with securities and mutual funds.

Other intangible property may include royalties, receivables, bank accounts, intellectual property, tax loss carry forwards, frequent flier miles, etc etc.......

And then there are inheritances, future inheritances and trust interests.  The existence of significant assets in any of these categories is important to consider.

You should also ask if there is any "stuff" of significant value, ie. art, jewelry, oriental rugs, antiques, collections, etc that should be appraised.  Are there items in particular that you want?

And finally, don't forget about pets and livestock.

Best,

Nancy

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Hi there,

The 7th topic to consider is part of the property division.  This is controlled by Massachusetts General Laws chapter 208, section 34.

Volumes have been written about this and frankly it is an area where cases that may go to trial as valuation issues, particularly with businesses, can be intractable.

Below is an general outline of some issues to think about when dividing real estate, though every month someone comes up with something new, so this is NOT all inclusive.

Your home:

• If you rent this is simpler; however, there may be lease issues, such as who is on the lease, or will one of you need to indemnify the other?
   
• If you own, consider who will have use and possession during the divorce and what will happen with eventual ownership.  If there is a sale or transfer within the couple or not, you need to think about the tax issues, including capital gains (don't forget the exclusion on sale for your primary residence), as well as who deducts the interest and real estate taxes.  You will have to decide how the bills are paid pre-divorce.  Will the mortgage need to be re-written to remove one party post divorce?  If there is to be a sale or transfer there may be timing issues to consider as well, such as when the children finish a school year or a certain grade.
   
• Then there is your other real estate (vacation house, rental or business property, time shares,  etc).  Many of the same considerations may apply as with your home, but the capital gains tax will be different.

All of these additional properties will need to be valued as well.

Best,

Nancy

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