USA – MASSACHUSETTS TRENDS AND DEVELOPMENTS Contributed by: Caterina S Wurman and Madeline R Pelagalli, Fitch Law Partners LLP
30% to 35% of the difference between the par - ties’ gross incomes at the time the order issues. These guideline percentages were established at a time when the applicable tax laws provided that the payment of alimony be tax deductible to the payor and taxable income to the alimony recipient. Although the language in the ARA remains unchanged, the guideline percentages have, in practice, been reduced as a result of the implementation of the Tax Cuts and Job Act, which provides that alimony is no longer taxable to the recipient or tax deductible to the payor. As a result, practitioners and judges generally oper - ate under the assumption that the percentages to be used in each case are in a lower range than what is provided by the ARA. Notably, the ARA excludes from income: • capital gain and dividend/interest income that derives from assets equitably divided in the divorce; and • gross income that has been considered for setting a child support order. Again, in the case of general term alimony or rehabilitative alimony, the court retains discre - tion to deviate from this guideline with written findings that deviation is necessary. Moreover, courts may attribute income to either party who is unemployed or underemployed. If a payor spouse remarries, additional income and assets of the payor’s spouse are not considered in adjusting a prior alimony award in a modifica - tion action. While the ARA provides comprehensive guide - lines, 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 relationship 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 cus - tom 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 Redding v Redding, 398 Mass 102, 107, 495 NE 2d 297 (1986)). Additionally, recent case law has amplified the public policy of the Commonwealth as requir - ing the court to consider varying calculations in all cases where concurrent orders of alimo - ny and child support are at issue (Cavanagh v Cavanagh, 490 Mass 398 (2022)). In essence, the issuing court is tasked with determining 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 considering tax consequences and the statutory factors enumerated in Massachusetts General Law, Chapter 208, Section 53. In recognising the two distinct purposes of an alimony order and a child support order, respec - tively, the Cavanagh court has laid out a three- step analysis in determining an equitable award of support, which requires the following calcula - tions: • a calculation of alimony first to address the need of the recipient spouse and mainte - nance of the marital lifestyle with a subse -
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