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Supreme Judicial Court of Massachusetts Provides Framework & Guidance for Applying Presumptive Alimony Durational Limits and Deviation Standards.

The Alimony Reform Act of 2011 establishes presumptive time limitation schedules for the payment of alimony based upon the time period in which the parties were married for marriages up to twenty years. The presumptive durational limits in the Alimony Reform Act apply retroactively to alimony awards that pre-date the Act. Divorced spouses who pay alimony may now file a complaint for modification with the appropriate probate and family court, seeking to terminate general term alimony once the durational limits have been met. Given the presumptive time limits on general term alimony, existing alimony orders which exceed the time limitations set forth in the statute must be terminated without a showing of additional material change in circumstances by the moving party, unless the judge finds that a deviation is warranted in the interest of justice. Once the durational limits have been met, the recipient spouse bears the burden of proving by a preponderance of the evidence that a deviation beyond the presumptive termination date set by Alimony Reform Act is required in the interests of justice. In the recent case of George v. George, 476 Mass 65 (2016), the Supreme Judicial Court of Massachusetts took the opportunity to set forth guidelines as to how a probate court judge should apply the interest of justice standard set out in the Alimony Reform Act. The court opined that in order to deviate from the presumptive limits, the judge hearing the case must find that the deviation is necessary by applying the factors

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Complex asset distribution in a divorce

If you have brought considerable assets into your marriage, or your marriage has lasted long enough for you to accumulate substantial wealth and material possessions, the ending of the marriage by divorce can be an even more stress-filled endeavor than it is ordinarily. It is not just accurately assessing the dollar value that can be problematic; you can also have a contentious experience with your soon-to-be ex-spouse as to who is entitled to what. You may have a nice home, considerable liquid assets in a variety of accounts, a substantial investment portfolio, real estate holdings other than your home, pensions and other retirement accounts, and so on. If you have worked closely with an accountant to protect your assets, you might also have structured your holdings to minimize your tax consequences, but in an asset division this can add to your potential headaches. Helping our clients to understand equitable distribution in Massachusetts, particularly with high-value assets on the line, is something that we at David M. Gabriel & Associates have extensive experience with. We can help you to carefully assess each asset’s actual value, and to navigate specific circumstances like assets connected to a business or properly determining whether an asset is a marital or a separate one. Your divorce may be amicable, but complex asset division can still become a source of friction when it comes to reaching a fair settlement. You will want a law firm to represent you that diligently represents your interests. To learn more about

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Three mistakes to be wary of when splitting up retirement assets

Some of the most important assets to consider during a divorce may be those that pertain to your retirement plan, even if you’re still working and you’re not using them yet. Dividing these assets can be complicated and, naturally, the assets will have a large impact on your financial stability after the split. To avoid major mistakes, be sure you do the following: 1. Don’t forget about taxes and fees if taking cash. If you are getting a portion of your spouse’s retirement plan, remember that cashing that plan out means you’ll likely have to pay taxes and an early distribution penalty. If you choose to simply have the money rolled over into your own retirement account, you can preserve more overall wealth. 2. Don’t be imprecise when laying out the distribution of a pension. A pension can be split up in a divorce. If it’s your spouse’s pension, you may still be able to claim a portion of it, meaning you’ll get regular payments. However, make sure that you are very precise when determining how the division will be done. For example, determine whether you want to use a shared interest approach or a separate interest approach. 3. Don’t forget to look at future tax implications with non-qualified retirement plans. When splitting up non-qualified retirement plans–deferred compensation plans, for example– remember that there are going to be tax consequences for the person who receives the money. Additionally, the person who is the participant in the plan will have to

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Divorce and property division

Spouses preparing for divorce might benefit from understanding more about some of the factors that can dictate how real estate assets are allocated by a formal proceeding. The outcome of property division typically depends on the state laws governing the divorce. Many separated spouses struggle with determining how much each party is entitled to receive from the marital estate. State laws may dictate whether divorcing spouses must split the value of the home equitably, or if one party is entitled to keep the property in its entirety. Some spouses are successful in avoiding contentious disputes and lengthy proceedings by selling their property before filing for divorce. When a spouse is unable to sell a house before filing for divorce, it may be used against them as leverage in the negotiations or formal hearing. Dividing the property equitably is the primary point of contention for many divorcing couples. Often times, dividing the proceeds from the sale of the home is far easier than negotiating the rights to retain the property. Spouses may also benefit from recognizing the significance of additional costs that are attached to retaining the home, such as the commission for the real estate agent and capital gains tax. Some individuals make the mistake of letting their emotions dictate their decision making while undergoing the divorce process. The emotions often subside, but the consequences of those rash decisions may be everlasting. Divorce lawyers may be able to assist separated spouses prepare for property division. Legal counsel might be able

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The role of artwork in a divorce property division

Massachusetts residents who are seeking a divorce may be interested in some information on how artwork is treated at the end of a marriage. Depending on when it was created, the pieces may be up for grabs when marital property is divided. When a couple makes the decision to divorce, they need to go through the property division process and divide their existing marital assets. When one of the spouses is an artist, they may be unclear about what to do with their artwork. An artist often believes that their works belong to them, because they created the pieces. In the eyes of the law, however, the artwork itself is simply another piece of property owned by the couple. Because of this, the artwork is subject to the same equitable division principles as the rest of the former couple’s assets. Artwork presents complex property division issues due to its often-subjective nature. A monetary value needs to be assigned to each piece by an appraiser or gallery owner. In addition, any licensing agreements for the artwork created by one of the parties needs to be included as property and revenue that belongs to the marriage. If artwork was created prior to the marriage, though, it will most likely not be part of this marital property division. Failure to properly account for the value of this artwork could open the creator up to allegations of fraud and could end up losing them all of that property. To avoid this, legal counsel may

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The tax filing implications of divorce

Divorcing couples in Massachusetts must take the time to work through their assets and determine how the property will be divided. In addition to deciding what will be done with the family home, couples must also take time to review how income taxes will be handled. This is particularly important if there are minor children who can be claimed as deductions. The first thing to remember is that filing status is guided by very clear rules. Before the divorce is finalized through the courts, couples can either file as married or married filing separately. Filing status is determined by the marital status as of December 31. An alternative to filing as married is to claim head of household status if the qualifications are met, and this can help bump some divorcees into a more favorable bracket. Dependents are claimed by the person that they lived with throughout most of the year. This is usually the custodial parent. In the case of shared custody, the parents should agree ahead of time on which partner will claim the children. There are many divorces where the non-custodial parent covers the medical cost for their children. Those costs can be deducted even if the custodial parent is claiming the exemption for the child. Alimony payments may be deducted even if the individual does not normally itemize deductions, but the payments must be made in cash and classified as alimony in the divorce agreement for the IRS to allow the deduction. Working through the tax

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Courts consider several factors in marital property division

Massachusetts law provides some specific guidelines for the court’s consideration regarding property division in a divorce proceeding. Since Massachusetts is an equitable distribution state, the court is charged with facilitating a settlement that is deemed fair to both parties. This approach differs from a community property division in that “fair” may not necessarily mean “equal.” When a mutually satisfactory division of assets cannot be reached in a divorce proceeding, the court first must determine what assets and debts are to be considered marital property. It must then proceed with an appropriate valuation of that property. Once the property is valued, the court then issues a ruling setting forth a division of property deemed to be equitable. Several factors must be considered by the court in its decision. These factors are defined by Massachusetts statutes, including the length of the marriage, the conduct of the parties during the marriage, the age, health, station and occupation of the parties, the amounts and sources of income, vocational skills and future earning capacities, employability, estate, the liabilities and needs of each party and the amount and duration of any alimony awarded. Additionally, the present and future needs of dependent children must be considered. The court may also consider each party’s contributions with regard to the respective estates, the contributions of each party as homemaker and other specific considerations such as health coverage. The stress of a divorce proceeding can be considerable. Seeking the advice of a family law attorney may help to facilitate the

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Division of marital property in Massachusetts

During a divorce proceeding, distribution of marital property can be a complex process. Massachusetts has established statutes regarding property division of various types of assets. Fair distribution of assets, including alimony, health insurance and business values, is ultimately determined by the court. The division of marital property has tax consequences that must also be considered by both parties. In addition to one party paying alimony to the other, the commonwealth’s courts may also order that one spouse pay for vested and non-vested retirement accounts, investments made together and funds earned during the marriage. Other assets that the court may assign to be distributed include retirement accounts, military and veteran’s pay and pensions, private pensions, profit-sharing ventures, annuities, deferred compensation and insurance settlements. Determination of equitable distribution also includes physical property or the property’s value. When performing a complex property division, the court takes into consideration the needs of dependent children. Additionally, it factors the ability of each party to earn a living, the contribution that each spouse made to the household income and the contribution that each made in running the household. The values of shared assets must be verified when marital assets are distributed during a divorce. The values of personal property, any jointly held business, land, homes and other valuables may be a contentious issue between the two parties. An attorney can help with a thorough investigation and analysis to ensure that their client receives an equitable distribution of marital property at the moment of the divorce and

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Dividing property after a divorce

If a divorcing couple has not settled their division of assets through a signed Marital Settlement Agreement in Massachusetts, the issue is left to the courts. Massachusetts is an ‘equitable distribution” state, meaning that if the parties cannot agree on how to divide their assets and debt, the Family Court within the Judgment of Divorce will award property based on what is deemed to be fair. It is important to know that ‘equitable” and ‘fair” are not synonymous with a 50-50 split of marital debt and assets. When determining how much each party gets, a number of factors will be taken into consideration. These factors include the income of each party and their current occupations, vocational skills and potential to be hired. Each party’s health and age are also taken into consideration. The length of the marriage and the behavior of each spouse throughout are also used when determining property division. To determine the assets and debt that must be divided, the Family Court will first determine which assets and debt are actually marital and assign dollar amounts. Once the monetary value is determined, property and debt will be assigned equitably. A divorcing spouse who has not been able to reach a settlement on property division without the court can benefit from a divorce attorney who can be a strong advocate. It is important that the judge has a clear idea of the spouse’s situation and that the spouse receives a favorable ruling. Source: Divorce Support, “Massachusetts Property Division Factors“,

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Equitable distribution and property division in divorce

One of the hardest aspects of divorce is the division of property between two spouses and understanding equitable distribution. Finances are often one of the major points of contention in a marriage, and this can carry over into the divorce process. It is beneficial for Massachusetts couples to understand equitable distribution and how this will affect their divorce process. During a divorce, a couple has the option to work together on an agreement that will dictate the division of assets and other aspects of dividing finances. This can be achieved through mediation and the assistance of each spouse’s legal teams. However, this amicable process is not always possible with every couple, and it may be up to the discretion of the court how property and assets will be divided. Equitable distribution is the division of property according to what the court deems reasonable or fair. This is based on spouse earnings, marital property, length of the marriage and more. It is important to remember that equitable division in no way guarantees that this process will be completely equal or reflect the wishes of the couple. For this reason, many couples choose to work on an agreement to divide their property. Determining how property should be divided is not an easy task. Because of the potential complexity of this process, it is beneficial to understand all options and how to pursue the optimal outcome from the divorce. Equitable distribution is one aspect of a divorce that may be confusing for Massachusetts

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