USA – MASSACHUSETTS Trends and Developments Contributed by: Caterina S Wurman and Madeline R Pelagalli, Fitch Law Partners LLP
While the ARA provides comprehensive guidelines, the ARA “[did] not alter the principle that the central issue relevant to a financial award is the dependent spouse’s need for support and maintenance in rela ‑ tionship to the respective financial circumstances of the parties” ( Hassey v Hassey , 85 Mass App Ct 518, 524-525, 11 NE 3d 661 (2014), quoting Partridge v Partridge , 14 Mass App Ct 918, 919, 436 NE 2d 447 (1982)). The court can even consider a family’s custom of saving when setting an alimony award that allows the dependent spouse to maintain the marital lifestyle ( Openshaw v Openshaw , 493 Mass 599 (2024)). It is well settled that the court’s discretion in fashioning an alimony award is broad enough that it has been held that a court’s decision to excavate even beyond a dependent spouse’s stated need is not “plainly wrong [or] excessive” (see Vedensky v Vedensky , 86 Mass App Ct 768, 775, 22 NE 3d 951 (2014), quoting Red- ding v Redding , 398 Mass 102, 107, 495 NE 2d 297 (1986)). Additionally, recent case law has amplified the public policy of the Commonwealth as requiring the court to consider varying calculations in all cases where concurrent orders of alimony and child support are at issue ( Cavanagh v Cavanagh , 490 Mass 398 (2022)). In essence, the issuing court is tasked with determin ‑ ing an equitable support framework that not only rec ‑ ognises that a child should benefit from all forms of compensation of a payor parent, but also one that maximises what is most equitable for the family con ‑ sidering tax consequences and the statutory factors enumerated in Massachusetts General Law, Chapter 208, Section 53. In recognising the two distinct purposes of an ali ‑ mony order and a child support order, respectively, the Cavanagh court has laid out a three-step analysis in determining an equitable award of support, which requires the following calculations: • a calculation of alimony first to address the need of the recipient spouse and maintenance of the mari ‑ tal lifestyle with a subsequent calculation of child support using the parties’ income after alimony; • a calculation of child support first and alimony second; and
• a comparison of the total support award resulting from the first step and the second step, respec ‑ tively, and the tax consequences of each support option. Additionally, Cavanagh v Cavanagh has broadened the pool of income and benefits that the court may now consider in the payor spouse’s income for purposes of setting support to include not only the payor’s con ‑ tribution to their retirement or health savings account, but also the contribution to benefits made by the pay ‑ or’s employer. How Trust Interests are Addressed in Divorce Actions The inclusion – or non-inclusion – of beneficial trust interests in the marital estate for purposes of an asset division incident to a divorce is quite often a hotly contested issue. Massachusetts courts have defined “property” broad ‑ ly in the context of a divorce. It is frequently consid ‑ ered to be all property to which a party holds title, however acquired. Therefore, whether trust interests are included in the marital estate involves an assess ‑ ment of the particularities of each trust. With a trust, the discretion is often left to the trustees with regard to how the assets and/or related income will be distributed to the beneficiaries. Depending on the level of discretion, the benefit can become too speculative to establish a clear value to the benefi ‑ ciary. That being said, if a party holds a beneficial interest in a trust that, prospectively, could be consid ‑ ered a significant future “acquisition of capital assets and income”, it could affect how the court equitably divides other marital assets. In many cases, the question about the inclusion of a beneficial trust interest or its value hinges on whether the interest is “fixed and enforceable” or “too remote and speculative”. If it is the former, more often than not, the trust (or its value) is likely to be included, in some measure, in the asset division – perhaps even in the support calculation. If it is the latter, the inverse is frequently the case (see, for example, Pfannenstiehl v Pfannenstiehl , 475 Mass 105, 110 (2016)).
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