Lost opportunity for considering alimony after child support is established: Appeals Court decision leaves us in the dark

In Casey v. Sweeney, a recent decision of the Appeals Court of Massachusetts, the court declined to provide clarification on the meaning of a statutory provision that has puzzled commentators and practitioners since it came into effect on March 1st 2012. The provision at issue is M.G.L. c 208 s 53(c)(2), which reads:

(c) When issuing an order for alimony, the court shall exclude from its income calculation:

(2) gross income which the court has already considered for setting a child support order.

In this case, the parties were divorced in 2011 but returned to court to dispute various issues, including alimony and child support payments. The combined total of the parties’ gross incomes was less than $250,000. Accordingly, the judge applied the Massachusetts Child Support Guidelines to the parties’ gross incomes to calculate the amount of child support to be paid. The judge then turned to the alimony issue and found that s 53(c)(2) prevented the consideration of any of the former husband’s gross income, as all of his income had been factored into the calculation of the child support order. This is a relatively commonsense conclusion from the provision’s wording. However, as the Appeals Court noted, “it would essentially eliminate alimony in the great majority of cases in which child support is warranted.” Effectively, where a divorcing couple has minor children and their combined gross income is less than $250,000, the court would always have to exclude the entirety of the spouses’ gross income from its alimony calculations and therefore would always be unable to make any order for alimony.

The difficulty is apparent; a judgment of the Appeals Court would undoubtedly have been helpful. Yet, the court declined to rule on the issue. The provision did not apply to the present case because the parties had been divorced prior to the Alimony Reform Act becoming effective in 2012, and therefore it was unnecessary to decide its meaning. A subsequent case, Smith v. Smith, followed. That case was remanded for determination of whether there had been a material change in circumstances affecting the paying spouse’s ability to pay or the receiving spouse’s need sufficient to meet the requirements for modification of an alimony order.

Thus, there is still no definitive answer on the effect of s 53(c)(2). Since the Alimony Reform Act came into effect, there have been tens of thousands of divorces in Massachusetts, not all involving child support or divorcing couples whose combined gross income falls below $250,000, but a significant amount involving both. For families in such a position, their situation with regards to child support and alimony remains uncertain.

Amber Turner was a Fitch Law Partners summer intern in 2019 through the International Academy of Family Law Attorneys (IAFL). She studies law at Cambridge University/Pembroke College in the United Kingdom and was the 2019 winner of the AIFL Travel Studentship.


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.