Can property awarded to one spouse at the time of divorce, later be considered a source of income in determining spouses’ child support or alimony obligations?

At divorce, Massachusetts equitably divide marital assets and liabilities between the parties. G.L. c. 208, § 34. Child support and alimony calculations are then based, in part, on the incomes of the parties. Should income from assets assigned at divorce later be considered in determining child support and alimony?

Massachusetts statutes and cases do not expressly prohibit such “double dipping,” or “double counting” of assets. See Wasson v. Wasson, 81 Mass. App. Ct. 574, 579-580 (2012). However, recent cases increasingly recognize the potential for injustice when assets are counted twice.

Just this week, the Massachusetts Appeals Court refused to allow double counting in a calculation that modified child support and alimony. See Zeghibe v. Zeghibe, Mass. App. Ct. No. 11-P-860 (2012). In its calculation, the trial court had included income from an IRA awarded to the husband at the time of divorce. On appeal, the husband successfully argued that including income from such an asset would improperly punish him by “redistribut[ing] to the wife, in the form of reduced child support and increased alimony, property awarded to him at the time of the divorce.” The Appeals Court also said that a change in the form of an asset does not make it includable in income calculations.

However, double counting is still possible. In Zeghibe the court stated that “there may be circumstances in which equitable considerations would allow” income from assets awarded at divorce to be included in calculations for child support and alimony.

If you have questions about maximizing, minimizing, or modifying child support and alimony obligations, call or contact Hutchins Law, P.C.

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