Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

This is a question I get asked all the time and I should’ve answered on this blog a long time ago.

How is alimony calculated and how is property divided in a divorce?

First, in an uncontested divorce, those issues are decided by the husband and wife. They work it out between themselves. In the case of a contested divorce where the husband and wife cannot agree, then they must leave it up to a judge to decide.

Probate and family court judges must rely on a number of factors to guide them in their decision as to which spouse should get what. These are more commonly called Section 34 factors. They are:

1. Length of the marriage
2. Conduct of the parties during the marriage
3. Parties’ age
4. Parties’ health
5. Parties’ station in life
6. Parties’ occupation
7. the parties’ source and amount of income
8. Parties’ vocational skills
9. the parties’ employability
10. the parties’ estate
11. the liability of each party
12. the parties’ individual needs
13. the chance of future acquisition of the parties
14. the parties’ respective contribution, preservation and appreciation to the marital assets
15. whether one of the parties was a homemaker

The judge would also look at the needs of the children when making a property division but the judge cannot look to the needs of the children when making an alimony determination – that is a child support issue and covered by another statute.

Part III of an ongoing series exposing the truth about Family Law Myths.   To see the truth about more Family Law Myths, see Parts I and II.

Myth: If I’m completely uncooperative, I can stop the case from moving forward.

Truth: All too often, people believe that if they refuse to participate in the process (divorce, child custody, child support, alimony, paternity, etc.), the process can’t move forward.  The truth is that while this might stall the proceedings temporarily, it won’t work for long.  Not only will the process move forward, but it will more than likely end with a final result that you absolutely hate.  Why?  The courts can only make decisions based on what is presented to them, and the other party has no responsibility to tell them your side of the story.

Your failure to respond to filings and refusal to show up for court dates hurts only you.  Only you (and your attorney) can defend your interests.  The thought of going to court makes everyone anxious.  It’s not a pleasant way to spend your day.  But what’s at stake is too important to let anxiety get in the way.  If you ignore the process, the process will go forward, ignoring you.

Myth: A good lawyer can be found cheaply or for free.

Truth: You wouldn’t walk into the super market and ask for free food.  A brand new car with an incredibly low price tag would probably make you suspicious.  So why would you expect a good family law attorney to be cheap or free?  Like all other things, when it comes to legal services, you get what you pay for.   Why would you want to pinch pennies with what is at stake in a family law matter?

If you truly cannot afford a family law attorney, it may be worthwhile to look into pro bono (free) legal services that may be available to you.  There are a few things worth remembering when looking for these services:

-           Just calling private attorneys offices and asking for free or discounted rates likely isn’t going to get you free or discounted services.  It’s not that attorneys don’t want to help you, it’s that they can’t afford to!

-          Family law matters are matters of civil law.  This means you don’t have the right to an attorney.  That only applies to criminal matters.

-          Legal services agencies (agencies that receive funds from the Commonwealth to provide free legal services) can only provide services to individuals who, at the very least, meet income requirements.  In lawyer terms, you must be “indigent.”  This typically means your household’s income is equal to or less than 175% of the Federal Poverty Line.  Right now, that’s approximately $13,500/year +$4,500/year for each additional family member living in the household.

**Even if you meet this requirement, different agencies have different “priorities” for service.  These priorities are set by the Commonwealth when the agency is created.  While the agency might have discretion to accept other cases, they also have practical limits like their funding and their caseload.  Often these agencies can’t accept all cases that fall within their priorities, let alone accept ones that fall outside of them.

[Paying Alimony Forever?]

Boston Magazine has a great article on alimony this month. [link here]

Alimony in Massachusetts is a mess.  That’s a simple statement with not so simple consequences.  Alimony in Massachusetts is a mess because there is no why and no how to it.  There is no rhyme or reason.  If no one ever articulated a reason for alimony or a “how” to calculate it, then the legal system is little more than a game of Judges picking favorites.

I’ve had opportunities to represent both husbands and wives in alimony cases.  Whether alimony gets awarded and how much depends mainly on the length of marriage, the earnings of both parties and the judge.  There are judges I’ve appeared in front of that I do not agree with and I believe has a wrong outlook on what alimony is suppose to accomplish.  Then there are judges that are extremely wise and contrary to the Boston Magazine article, do see the role of alimony as finite and they do impute income to the recipient spouse (usually the wife).  But despite the wisdom of these judges, they are restricted by statute and various case law on what they can do – and that is a shame.

There is a movement going on in Massachusetts right now to reform alimony and I believe in it.  Recently, child support was reformed in Massachusetts to take it more in-line with other states.  Child support now counts the contribution of both parents in supporting the minor children, not simply the payor as was the case in the past.  There is now a fair and fixed formula for child support.  Have all child support lawyers gone out of business because of it? No.  There will always be those cases where there are conflicts and that’s where lawyers come into play.  Alimony should be no different.  There should be a finite limit and there should be a formula to calculate it.

[Massachusetts Alimony Reform]

Here are the top 10 reasons why you don’t need a divorce lawyer for an uncontested divorce:

1. You know exactly what the “merger” and “survival” clause of the Separation Agreement means.
2. You’ve divorced so many times that you know all the pitfalls and traps of a divorce (and your name is also Elizabeth Taylor)
3. You know exactly what parts of your Separation Agreement is modifiable, when it’s modifiable and how to modify it
4. You’d rather wait and spend thousands of dollars down the road to modify or file contempt actions then for a lawyer to tell you the pitfalls today
5. You expect the court’s clerks to give you legal advice
6. You expect the judge to give you legal advice
7. You know exactly how to write out the terms of child custody, child support, alimony, health insurance, property division, tax returns provisions, etc.
8. Your spouse’s divorce lawyer told you to sign on the dotted line with no explanation and you’re comfortable with that
9. You are a family court judge
10. You are a divorce lawyer