New guidance on the intersection of alimony and child support | Burns & Levinson LLP


Massachusetts child support law provides that when child support is determined, the court must exclude from the calculation the gross income, which the court has already considered in establishing a child support order. In effect, this means that for most people divorcing with minor children, where the parties together earn less than $400,000 a year, there is only a child support order but no child support. To the chagrin of many who have spent years working on alimony reform, the Supreme Judicial Court has determined that alimony law does not mean what it says.

In August 2022, in the case of Cavanagh v. Cavanagh, the SJC determined that a judge abused her discretion when she calculated child support and then, without conducting a factual analysis of the family situation, denied the wife any child support on the basis of the following wording in GL c. 208 § 53(c)(2):

When making a child support order, the court must exclude from its calculation of income: … the gross income that the court has already taken into account in determining a child support order.

The SJC found that a plain language interpretation of section 53(c)(2) resulting in a virtual ban on child support where child support has already been awarded is untenable. Further, the CJS noted that it did not make sense to tie the availability of child support to child support, as child support and child support have separate purposes. Alimony is intended to provide financial support to the children of the parties, while alimony is intended to provide financial support to an economically dependent ex-spouse.

After finding that the Alimony Act should not be taken to mean what it says, the SJC issued a guideline regarding the calculation of alimony and child support in all future cases as follows :

In cases where child support is being considered, before a judge can properly exercise his or her discretion to decide whether and in what form and how much to award child support, the judge must do the following:

(1) Calculate alimony first, in light of the statutory factors listed in § 53(a) and the principle that, except for reimbursement of alimony, the amount of alimony must be determined in reference to the recipient spouse’s need for support to enable the spouse to maintain the lifestyle he enjoyed before the breakdown of the parties’ marriage. Then calculate alimony using the parties’ incomes after alimony.

(2) Calculate child support first. Then calculate alimony taking into account, to the extent possible, the statutory factors listed in § 53(a). We recognize that in the overwhelming majority of cases, the child support calculation will preclude any child support calculation at this stage.

(3) Compare the base allocation and tax consequences of the order that would result from the calculations in step (1) with those of the order that would result from the calculations in step (2) above. The judge must then determine which order would be fairest to the family in court, given the mandatory factors under GL v. 208, § 53(a), and public order that children be supported as fully as possible by the resources of their parents, GL c. 208, § 28, and determine what order to make accordingly. Where the judge elects to make an order in accordance with the calculations in step (2) or otherwise that does not include any award of spousal support, the judge must explain why such an order is warranted in light of the statutory factors set out in § 53 ( a).

It is essential that the tax consequences of the SJC Directive are taken into account. Alimony awards (excluding orders placed before 2018) are no longer taxable to the recipient or deductible by the payer for federal income tax purposes. This means that federal income taxes are the responsibility of the party paying the support, and the support received by the other party is fully available to be spent, with no tax payable. Where support is calculated first and child support second, the simple act of adding support to the recipient’s income and deducting it from the payor’s income for purposes of the Child Support Guidelines child support does not take into account that the payer has tax obligations and the recipient does not – which means that the comparison of income is not apples to apples. Parties, especially payors, need to have experts on standby to make calculations when making support orders.

If this new directive was not enough, the SJC addressed another issue in the Cavanagh decision – whether employer contributions to a retirement account count as income when calculating child support. Surprisingly, the SJC found persuasive the Pennsylvania Superior Court’s finding that “if we were to determine that an employer’s matching contributions do not constitute income, it would be possible for an employee to enter into an agreement with their employer so that he receives less salary in exchange for an increased matching contribution. This would effectively allow an employee to protect their income in an effort to reduce their child support obligation. The SJC determined that allowing such resource shielding would violate Commonwealth public policy. Although the fact that employer contributions to a retirement account are not available to an employee to cover living expenses, the SJC found that employer contributions to a retirement account were an income for the calculation of alimony.

Perhaps the legislator will take up the issue of child support reform to make plain language clearer. Until there, Cavanagh is the law of the land.


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