I often hear this refrain, or its cousin “I understand that’s why s/he is paying child support”.  More often than not, it isn’t correct in the context.  People tend to think that a child support payment is intended to be the full contribution owed by a non-custodial parent, but that is rarely true.  So what is child support for?  And when are you liable for or entitled to additional monies?

Child Support is intended to insulate children from the economic impact a divorce can have on a child’s standard of living.  As the 2009 Massachusetts Child Support Guidelines states, Child Support is intended “to meet the child’s survival needs in the first instance, but to the extent either parent enjoys a higher standard of living, to entitle the child to enjoy that higher standard”.  Translated into lay terms, Child Support is meant to enable a child to have his or her basic needs met by items or services of the same quality he or she enjoyed during the marriage.  So what do these payments actually cover?  Food, clothing, shelter and basic sanitary/hygienic needs, like groceries, household cleaning supplies, toilet paper, and toothbrushes.

That being said, it’s time for what Child Support isn’t considered to include.  A monthly child support payment does not include monies owed for a person’s share of a child’s medical expenses.  It doesn’t include extraordinary basic expenses, like a share of tuition for a private school or college.  It doesn’t include fees associated with a child’s extracurricular activities.  While a parent may not be automatically liable for some portion of these costs, if the children were already creating or were expected to create these sorts of expenses at the time of their parents’ split, it’s difficult to argue that a parent shouldn’t continue to be responsible for some portion of this expense if she or he can afford to help.

This doesn’t mean that one parent may decide to take on some huge expense for a child and then force the other parent to contribute.  It likewise doesn’t mean that a parent can refuse to contribute to these expenses merely because he or she pays child support.  As with so many things in the area of family law, the law takes the commonsense approach: the involved parties need to look at the situation on the ground and decide what is in the child’s best interest.  Once that is determined, it is a question of the fairest way to accomplish that goal.

If you are currently having an issue with how you and your child’s other parent should apportion payment for certain expenses related to your child, it is worthwhile to consult with an attorney or mediator to assist you in coming to a solution that is fair and reasonable not only to you, but to your child.

This correlation isn’t due to families “doubling down” and growing closer in the face of adversity, but because couples who would otherwise part ways cannot afford to do so.  They cannot afford Court and attorney’s fees, nor do they have the cash on hand to properly divide their estate.  The end result is that people who have terminated their relationship are forced to remain married to one another, often under the same roof.  For some couples, however, this is an unbearable condition.    Throughout history, divorce rates and rates of domestic violence including homicide have shared a correlation: when divorce rates go up, domestic violence rates go down.  The end result of combining all of this information is a frightening picture: when the stressors that make divorce most likely are affecting millions of people, the same root cause places divorce out of reach.  These same stressors make domestic violence more likely, and the inability to obtain a divorce or remove oneself from the marital home make domestic violence more difficult to escape.

So what information can I provide those in such a situation?

•  You may qualify as an “indigent”, or a person who simply does not have the means to afford the fees associated with divorce.  If you do, filing fees and other court costs may be waived.  You may also be eligible for free legal advice or representation.

• Divorcing may require you to “liquidate” your assets, or to transfer property from one spouse to the other.  You should note that the IRS allows divorcing couples to transfer property between one another without incurring any taxes for such transfers.

• Lastly, you should note that if you and/or your children are being subjected to abuse by your spouse, there are both legal protections and other resources available to you.

There are certainly times when divorce is simply out of the question, but if you or someone you know is placing their physical, emotional, or mental health at risk due to the Great Recession, waiting for the economy to turn around should not be an option.

Everything is split 50/50

The bolded text “everything” is correct and accurate.  In Massachusetts, when a couple divorces, everything is up for grabs.  Everything includes income and assets acquired during the marriage and also before the marriage.  Everything also includes gifts and inheritances during and before the marriage.

Everything is split 50/50

The bolded text “is split” is somewhat correct.  Since everything is up for grabs, everything is then up to be split.  It doesn’t mean that it will be split but simply that there is a possibility of it being split, depending on the circumstances of each couple.

Everything is split 50/50

The bolded text “50/50″ is absolutely false.  Massachusetts is an equitable division state.  It means that at the time of divorce, judges look to see how to split property equitably.  Equitable is a fancy term for “fair and reasonable.”  Fair and reasonable does not mean 50/50 or else our laws would simply say 50/50 or equally.  Equally is not the same as equitably.

Let’s take for example the case where a young couple in their 20′s gets married.  They started the marriage with next to nothing and they’re married for 9 years and had no children.  They then decide to divorce.  In that situation, it would be fair and reasonable to split their assets 50/50.

Now let’s take another example where a young couple in their 20′s gets married.  They started the marriage also with next to nothing and they’re married for 20 years and had 3 kids and the wife was a stay-at-home mom for 15 of those years.  In that situation, it would NOT be fair and reasonable to split their assets 50/50 because the wife sacraficed her professional advancement outside of the home to raise the couple’s kids which in turn enabled the husband to advance his career.  Now if she was to go back to the work force, she would be 15 years behind the curve professionally.  In this situation, a fair and reasonably (or equitable) distribution would be to give the wife more of the assets.

Transfer of Real Property

During the marriage, spouses can transfer unlimited money and assets between themselves – tax free.  There is no transfer or capital gains tax on transfers between spouses.  After divorce, spouses (or ex-spouses I suppose) have up to 1-year from the divorce date to transfer property between them, tax free – even if the transfer was not mentioned as part of the divorce.

Transfer of Retirement Assets

If you take out money from any of your retirement accounts (401k, IRA, Roth IRA, 403b, pensions, etc.), you will incur a penalty and be taxed on the amount.  So when couples need to split their retirement accounts during or incident to a divorce, many people worry that they will get penalized and taxed.  However, if done property, that won’t be the case.  Any amount that is taken out or divided incident to a divorce, should be done through a Qualified Domestic Relations Order (QDRO).  It is a special document that is submitted to the retirement account administrators instructing them to divide the account without triggering any penalties or adverse tax consequences.

Before transferring real estate or retirement assets in a divorce, it’s best to consult with a knowledgeable Massachusetts divorce attorney so that you won’t make the mistake of having to pay Uncle Sam when you don’t need to.

Of all the family law cases I deal with, those cases dealing with parents separated by distance are the hardest, legally and emotionally.  Mostly the families I see have two great parents.  It might be joint custody or one parent might have sole custody, but regardless, both are great parents.  So it’s all that much heart-wrenching when we have to decide which parent gets the child for the majority of the year and live a plane ride away.  There is no good way to do it.

Legally, there are standards to be met.  The best interest of the child has to be looked at in all cases.  The question has to be asked, “is it in the best interest of the child for him to stay or to go?”  Then depending on whether it’s a sole custody or a joint custody situation, you might also have to ask the question, “why is the parent moving?”  Is there a real advantage to the move?

But these are just legal jargon and standards that don’t fully encapsulate the enormity of the final decision.

These days, because of technology, we routinely set up Skype for parents so that they can hear and see their kids through video chats.  It is definitely a step forward but you still cannot hug your children over the internet.  That’s a shame.

General alimony is what we traditionally think of as alimony.  It is ordered when once spouse is financially dependent on the other spouse.

Rehabilitative alimony is alimony given for a short period of time so that the lesser earning spouse can get back on their feet through job training or finding a new job.

Reimbursement alimony is alimony for a short period of time or a lump-sum payment to reimburse a spouse for marriage contribution, such as helping to put a spouse through school and paying for student loans.

Transitional alimony is alimony for a short period of time or a lump-sum payment for the purpose of helping the spouse transition to a new standard of living or to relocated due to the divorce.

In the past, alimony was governed by statute but the statute was very vague.  It gave the court a lot of discretion and not a lot of guidance.  For most attorneys, trying to figure out alimony payments and duration was a nightmare because there was no clear formula, unlike child support calculations.  With the passage of the alimony reform, we will not have a clear directive as to how alimony is calculated and it sets the amount and duration of alimony payments.  There is still some discretion by the court but at least there is more certainty.  Having clear and certain numbers helps not only the court, but attorneys to negotiate a proper and fair settlement for parties in a divorce.

The new alimony law provides for 4 different types of alimony: General Alimony, Rehabilitative Alimony, Reimbursement Alimony and Transitional Alimony.

Duration of General Alimony:

• If marriage is 5 years or less then alimony is no more than 1/2 the length of the marriage
• If marriage is more than 5 years but less than 10 years, then alimony is no more than 60% of the length of the marriage
• If marriage is more than 10 years but less than 15, then alimony is no more than 70% of the length of the marriage
• If marriage is more than 15 years but less than 20, then alimony is no more than 80% of the length of the marriage
• If the marriage is more than 20 years, alimony can be lifetime.