Alimony and Child Support: What happens when storms collide?

Posted by Brian Waller | Sep 30, 2021

Child support and alimony are not really storms, of course, but they are both huge gray areas for families in divorce cases in Massachusetts. Massachusetts is one of the few states that has traditionally avoided payment of both alimony and child support in cases where the parties combined income was below the presumed maximum of $400,000 ($250,000 prior to October 4, 2021). The changes made as part of the 2021 Child Support Guidelines include a dramatic shift in the way Massachusetts courts handle cases with both alimony and child support.

As background, the Massachusetts alimony law is clear that income applied to child support cannot also be considered when calculating alimony (G. L. c. 208, § 53(c)(2)):

(c) When issuing an order for alimony, the court shall exclude from its income calculation:

(2) gross income which the court has already considered for setting a child support order.

This means that if a child support order is calculated before alimony is calculated, there won't be enough income left for the Court to consider an additional alimony order unless the combined income of the parties exceeds $400,000. There is no mechanism to address circumstances where a spouse is financially dependent on the other spouse and has a need for alimony in addition to child support. But, there is also nothing prohibiting courts from calculating alimony first, before child support. 

The greyest of grey areas

In my experience, cases with both alimony and child support are often the most complex because there is no standard starting point. Every case of any type has room for the judge to use their discretion, but in most situations, there is either a statute or prior cases to guide the judge and also give you a pretty good idea of how the Court will typically handle a particular issue. For example, the child support guidelines worksheet provides the presumed amount of child support. That doesn't mean that will automatically be the amount of child support ordered, but it is the starting point that the parties and the judge start from. From that starting point, a particular case may warrant an adjustment to the amount of child support ordered either higher or lower, but it is a firm starting point.

For cases with alimony and child support, the courts have typically used the term "unallocated support" when the amount of the order is not just child support or not just alimony. Unallocated support is a combination of the two and in my experience, every judge has a different way of approaching these types of cases. The problem here is that there is no common starting point where the parties could argue it should be higher or lower. Usually, the amount of unallocated support seems to be the presumed child support amount plus some increase for alimony. But how much is the increase for alimony? As always, it depends on the case, it depends on the judge, and can even depend on the judge's mood.  But there is definitely no right answer or wrong answer so it is hard to even guess.

A Basic Framework for Alimony and Child Support Cases

The revised Child Support Guidelines suggest that parties should run a variety of scenarios and advocate for the arrangement that yields the most equitable outcome. The guidelines also clarify that alimony payments MAY be considered income for the parent receiving alimony but could also be excluded.

A recent decision from the Massachusetts Appeals Court agreed with a Probate and Family Court judge who ordered alimony to be paid by the custodial parent to the parent that is paying child support but did not adjust the parties incomes before calculating child support. You can read the decision here: Calvin C. v. Amelia A., 99 Mass. App. Ct. 714 (2021).

So, what does this case tell us? 

First, it suggests that alimony should be included as part of the income calculation for a child support order if one party is paying both forms of support. In such cases, it would be unfair not to take into account how an alimony order has diminished the payor parent's resources and increased the resources of the recipient parent when calculating the subsequent child support order. 

However, if one parent has been ordered to pay alimony and the other parent will be obligated to pay child support, the court found that it may be appropriate to exclude alimony payments from the income used in the child support calculation. In effect, this means that the court is taking a snapshot of each parent's income prior to any support orders and calculating both obligations based on that. This is because when each party is the payor in one support order and a recipient in the other, the reciprocal orders counteract each other. 

Parties are advised that the best practice is to calculate all possible scenarios at the outset of a case, before any orders are entered. This allows parents to get a full sense of the range of possible outcomes and advocate in an informed way about the approach that is best for the family. As always, you can contact our team to schedule a free consultation to discuss your particular situation.

About the Author

Brian Waller

Founder and Principal Attorney

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