How do same-sex divorces work in MA?
Same-sex couples divorcing in Massachusetts face essentially the same issues heterosexual couples do. That means that the treatment of same-sex divorce by Commonwealth family courts will be no different from that of heterosexual divorce.
Therefore, when choosing a Massachusetts divorce attorney for a same-sex divorce, selecting a law firm dedicated exclusively to resolving divorces and other related family law matters can be helpful. A law firm well-versed in divorce can guide you on the issues most pertinent to the unique circumstances of your same-sex divorce case.
Same-sex divorces don’t have to be confounding. If you are a same-sex couple embarking on a divorce or thinking about what a same-sex divorce would entail, here are some issues you may need to consider.
Property Division: Assets and Liabilities
In same-sex divorce cases, understanding asset and debt division complexities is crucial. Assets, which encompass real estate, retirement accounts, investments, bank accounts, vehicles, stocks, bonds, businesses, and debts, are subject to equitable distribution in Massachusetts.
Gifts, inheritances, and trusts may also be considered marital property under certain circumstances, such as longer marriages and/or when an inheritance is co-mingled with marital funds. While advanced degrees aren’t property specifically, increased earnings resulting from education can influence division.
It is important to note that equitable doesn’t mean equal. Marriage length and contributions by each spouse to the marriage (when, how much, and of what nature) can impact division. Family court judges will also weigh factors like the parties’ ages, health, incomes, and children’s needs. For example, keeping children in the marital home is preferred, but not a definite.
A Massachusetts divorce lawyer will conduct a thorough property analysis, offering strategic advice for asset retention. What’s deemed equitable will determine how assets and liabilities will be divided. Infidelity seldom affects division unless it significantly impacts finances.
Massachusetts courts usually accept agreements between divorce parties concerning property division; however, disagreements will sometimes necessitate the court’s intervention. Therefore, it is advantageous to hire legal representation from the start due to the complex legal factors same-sex divorce can involve. Also, unlike other provisions, property division is final, making careful consideration imperative.
The exception to finality would be if fraud occurred at the time of divorce. For example, although an automatic restraining order preventing fraudulent property transfers is in effect until a couple reaches a divorce settlement, it isn’t always foolproof.
Divorce often engenders fear among those thinking about or embarking on the divorce process in Massachusetts, namely regarding potential alimony payments. Alimony, defined as need-based financial support from one divorced spouse to the other, can be an incredible source of anxiety due to its unclear components and calculation methods; payors tend to worry about the financial burden, while payees worry they won’t receive what they believe they need.
Alimony is typically paid over time or as a lump sum, with longer marriages and more significant financial disparities increasing the likelihood of a payment obligation. Several factors influence alimony decisions, including the parties’ ages, health, occupation, income, and child support orders from previous divorces. Maintaining the marital lifestyle is likewise a primary goal in divorce law, making alimony probable if one spouse has been economically inactive, especially if they made non-economic contributions to the marriage such as caring for the couple’s children and the household.
To alleviate some or all of the payor’s burden, the court may rely on income attribution if the payee spouse is unemployed or underemployed, assigning potential earnings to the recipient based on their employability, even if they are not employed presently. The payor must demonstrate the spouse’s capacity for a higher earning potential, which is typically substantiated by an expert investigation.
Despite concerns over alimony, the long-term cost of avoiding divorce generally exceeds any support order. Moreover, not everyone going through a divorce will be obligated to pay alimony. Therefore, the decision to pursue a divorce should not hinge on the potential for having to make alimony payments.
Increasing your chances of securing 50-50 custody in a divorce involves crafting a parenting plan that considers everyone’s needs — children and both of their parents. To create a favorable environment for a judge’s approval of 50-50 custody, refrain from leaving the house without a parenting plan in place to avoid misinterpretation of your actions.
In addition, demonstrate consistent involvement with your children by spending ample time with them. Maintain a detailed log of your interactions. Actively participating in school and paying for medical care and extracurricular activities show, not just tell, of your commitment to parenting.
Whatever the topic, effective communication about child-related matters is critical. With that in mind, document all exchanges by communicating via emails and texts, and when that’s not possible, make notes about the interaction in your records. Successful and amicable co-parenting is a gift to yourself, and more so to your children, so be respectful and speak civilly with your children’s other parent (as difficult as that may be), recognizing that your words and actions can impact your case — and the quality of your lives for a long, long time to come.
Finally, continue living in close proximity to your children’s other parent, preferably in the same town, as it signals your commitment to shared parenting responsibilities and further reinforces your intentions to the court, increasing the likelihood of a 50-50 custody order. Taking these steps will help to build a compelling case for shared parenting, enhancing the chances of a court decision in your favor.
Of course, a 50/50 arrangement isn’t the answer for every family. If you believe you should be the primary care parent, you should discuss your case with a reliable divorce attorney so that you can assess your chances of sole physical custody and begin planning, so that you optimize your chances of that outcome.
Child support typically involves regular payments from the non-custodial parent to the custodial parent. The 2023 Massachusetts Child Support Guidelines provide a structured approach, promoting fairness in child support arrangements and outlining how child support is calculated.
The calculation of the child support amount primarily relies on the parents’ gross incomes, with deductions made for child care, health insurance, and other support obligations. A family court judge can deviate from the Guidelines due to special circumstances, any agreements made between the parties, medical expenses, incarceration, or other reasons.
If the non-custodial parent is unemployed or intentionally underemployed, the court may attribute income to that parent for calculation purposes. Doing so prevents manipulation by the non-custodial spouse of how much support they will be required to pay. For instance, if a non-custodial parent were to cut their work hours to avoid paying child support, the court can use their full-time salary for determination.
Without proper planning and guidance, a divorcing spouse who depends on their soon-to-be-ex for health insurance faces a real risk of losing coverage. A lack of understanding of this risk can lead to inadequate safeguarding of health insurance for a dependent spouse.
The question of who carries health insurance after divorce is a common one. If there is a child involved, typically the person paying child support has to carry them unless the costs are unduly burdensome. In that case, the court may order the other party to cover the child’s health insurance. Keep in mind, though, that health insurance costs are baked into the child support calculation.
Most divorced individuals are not covered by their ex’s health insurance. If they are, it is very common for a court to have the spouse who is being covered and is not on the plan to pick up any costs attributable to that person’s coverage.
Massachusetts family courts have traditionally factored in and, at times, mandated the inclusion of life insurance to protect those receiving support, including their dependents, should the paying spouse pass away before their obligation has ended. During the divorce process, the financial value of specific obligations such as child support, alimony, extracurricular expenses, postsecondary education, and health insurance will be assessed, and an estimate will be made as to how much life insurance will be needed to secure it.
The coverage amount is designed to align with each party’s obligations and, therefore, can adjust over time. In other words, the amount of life insurance required may decrease as the payor fulfills their financial obligation. Some payors choose to assign assets for protection or employ a combination of assets and insurance for this purpose.
Tax Exemptions for Children
Utilizing dependency exemptions can be mutually advantageous for both spouses. Typically, the settlement agreement will specify which child each spouse will be entitled to claim. It will also outline conditions for changes.
According to Section 152(e) of the Internal Revenue Code, the exemption is inherently granted to the custodial parent unless a release is executed. Typically, the courts will order that the parents alternate the exemption. However, if a parent is underpaying support or there is another reason to grant the exemption to only one parent, the court has the discretion to issue an order accordingly.
Find a Massachusetts divorce attorney for your same-sex divorce.
At Farias Family Law, our Massachusetts team of divorce attorneys has vast experience resolving issues related to same-sex divorce. We understand how emotions can run high during divorce and how confusing it can become, which is why we take time and care to explain the process to keep our clients both informed and comfortable. Contact our Massachusetts divorce team today.