Alimony Modification: Second Job Excluded from Calculation

A new Massachusetts alimony case was released by the Appeals Court on December 30, 2014 and shed some light on the modification of alimony.  The Vedensky case involved a highly educated couple with significant earning capacity who divorced by agreement in 2006.   The parties’ divorce agreement had terms that included both parties waiving any right to past and present alimony, but reserving the right of either to seek alimony in the future.  Also, it was agreed that mother would have physical custody of the child, and father would pay child support to mother.    After the divorce, the father’s health deteriorated and he eventually started receiving SSDI (Social Security Disability Insurance) benefits.  In 2009, father filed a complaint for modification seeking an adjustment in the amount of child support he was obliged to pay mother, as his income had been significantly reduced by his reduced ability to work, disability and availability of SSDI dependent benefits on behalf of the parties’ child. The parties settled this modification with an agreement to eliminate father’s obligation to pay mother child support.   Approximately two years later in 2011, father filed another complaint for modification requesting that mother pay him alimony, as he continued to have limited earning capacity due to his disability.   Mother moved to dismiss father’s complaint seeking alimony, citing the fact that they recently had been in court regarding the termination of his obligation to pay child support and that nothing had changed in the intervening two years that would rise to the level of proving a new change in his circumstances, which is required for a modification of alimony.  The appeals court determined that the modification of child support was an independent analysis and not part of father’s right to seek a modification of alimony.

Thereafter, the trial judge not only ordered mother to pay husband rehabilitative alimony, which under the Massachusetts Alimony law can be for up to five years, but it was acknowledged that mother also remained solely obligated to support the unemancipated child.   In order for mother to meet her financial obligations for her and the child’s expenses, as well as her new obligation to pay her ex-husband weekly alimony, the trial judge attributed income to mother in the form of her anticipated earnings from a second part-time job she had taken after the divorce in 2006.   Contrary to the trial judge’s decision, the appeals court recognized that the mother worked a full-time job and that it was improper for the second part-time job income to be included in the calculation of alimony.  Furthermore, the appeals court reiterated that attribution of income was circumstances in which a party is underemployed or unemployed; not when a party is working full-time and could also earn income from a second job.  The court made it clear that a party who works at a full-time or full-time equivalent job may not be found to be “unemployed or “underemployed”.  In order for the second job to be considered in a support calculation, there must be compelling facts to overcome the presumption that the second job income not be included.

 

-Marcia J. Mavrides, Esq.



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