It has been well established law for decades that in order to seek a modification of alimony in the Probate and Family Courts there must be a material and substantial change in circumstances since the date of the order establishing alimony. While this remains true in cases where an award of alimony includes the actual figure to be paid to the recipient, it appears it is no longer true in cases where the prior judgment simply states that past and present alimony are waived, but the issue of future alimony remains modifiable.
On August 8, 2022, the Supreme Judicial Court issued the Cavanagh v. Cavanagh decision, which completely upended the way the Probate and Family Courts and family law attorneys have interpreted the laws relative to child support and alimony and the standard for modification.
The Supreme Judicial Court changed this standard entirely saying instead, “Under the relevant provisions, the parties waived only “past and present” alimony and “expressly reserved the right for future alimony. Thus, a new award of alimony after the entry of judgment, therefore, does not require a finding of a material change in circumstances.”
This seems to indicate that if your divorce judgment leaves open the issue of future alimony, a former spouse does not need to show a change in circumstances to request alimony in the future. This is problematic in many ways. The language referenced by the Court is incredibly commonplace in divorce judgments, especially, in the case of long-term marriages. There are a number of Probate and Family Court Judges who will not even approve a separation agreement that waives future alimony where the parties have a long-term marriage.
Family law attorneys have been counseling their clients for years that a spouse cannot come back to Court and ask for alimony unless something significant has changed from the entry of their original divorce judgment. Now, however, it seems that anyone who has this type of language can come back to the family Court to ask for alimony and the Court will now be required to evaluate that request through the lens of the other major change in the law regarding concurrent child support and alimony orders provided by the Cavanagh decision.
Until very recently most practitioners and the Court took the position that there would be no concurrent alimony and child support orders in cases where the combined incomes of the parties did not exceed $400,000 as income available for calculating support pursuant to the Child Support Guidelines. However, the Cavanagh decision now requires the Court and family law attorneys to go through a series of calculations to determine an “equitable” support order. The calculations are as follows:
- Step 1: Use the income of the parties to determine an alimony order and then exclude the alimony payment from the payor’s income and add it to the recipient’s income. Then the new income figures are used to calculate child support.
- Step 2: Take the parties existing incomes and run the Child Support Guidelines. The Court said they recognize this will likely be where the inquiry ends if the incomes of the parties do not exceed $400,000 but in cases where it does, the remaining income not used for the purpose of calculating support would be used to calculate alimony.
- Step 3: Conduct a tax analysis to determine the after-tax income of each of the parties.
If your Divorce Judgment leaves open the issue of future alimony and you are currently paying child support, the Cavanagh decision could impact future or current support obligations significantly. It may also impact parties who negotiated a fair and equitable divorce settlement and made concessions regarding asset division or other provisions in order to avoid the need for alimony as now your former spouse can, despite those concessions, seek alimony without having to show any change in circumstances to support that request.
The Divorce Attorneys at Mansur Law Group can help you evaluate your current and future circumstances after these significant changes in the law.