USA – MASSACHUSETTS LAW AND PRACTICE Contributed by: Steven E Gurdin, Barbara L Drury, Carlos A Maycotte, Stephen A MacKenzie and Kelly A Schwartz, Fitch Law Partners LLP
The parties to a divorce action are also entitled to engage in discovery to collect relevant docu - ments and information from each other, as well as from third parties or entities. For example, a party may elect to take the other’s deposition, request that the other party provide additional documents (eg, credit card statements, life insurance documents, budgets and financial planning data), or subpoena the other party’s employer for income records and employment information. The scope and method of discovery must comport with the Massachusetts Domestic Relations Procedure Rules and, if not, the other party – or, in some cases, a third party or entity – can seek protection from the court. There can be unique considerations when divid - ing certain types of assets or interests associat - ed with a party in a divorce. For example, wheth - er a party’s beneficial trust interest is considered marital property and subject to equitable division will require an extensive analysis of the trust and an assessment of whether the party’s interest is “fixed and enforceable” or is instead “too remote or speculative” (see Levitan v Rosen, 95 Mass App Ct 248, 253 (2019)). If a court determines a party’s trust interest is more akin to an “expec - tancy” and not marital property, the party’s inter - est may not be divided but could still be relevant to the court’s consideration of a party’s opportu - nity to acquire income and capital assets in the future (see id.) 2.4 Spousal Maintenance Massachusetts considers requests for spousal maintenance (“alimony”) on a case-by-case basis after review of the relevant facts. The over - all standard for considering alimony awards is the recipient’s need and the parties’ financial circumstances (eg, payor’s ability to pay). Key factors considered by the court in determining alimony include, without limitation, the length of
the marriage, the age of the parties, the health of the parties, both parties’ incomes, both parties’ contributions to the marriage (both economic and non-economic), and the parties’ lifestyle during the marriage. During the pendency of a divorce action, a party may apply for interim alimony by way of a motion for temporary orders, which will be scheduled for a hearing. Each party is required to submit to the court current, accurate, and complete finan - cial statement forms that identify each party’s income, expenses, assets and liabilities, prior to a motion hearing. In the absence of an agree - ment by the parties, the court has discretion to enter an alimony obligation through a tempo - rary order, which will remain in place through the pendency of the action or until further order of the court. The court has the authority to order ongoing alimony upon entry of a judgment of divorce. The Massachusetts Alimony Reform Act of 2011 details the types of alimony available to a divorc - ing spouse and sets specific guidelines for the length and amount of such alimony awards. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements are widely used and recognised in Massachusetts. They are often used to protect premarital wealth, future gifts or inheritances, beneficial interests in family trusts, and family businesses. They also often address issues of alimony and a surviving spouse’s right to the decedent’s assets if a mar - riage ends by death. The law in Massachusetts is well settled on the enforceability and process for entering into both prenuptial and postnuptial agreements.
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