Client Compass, Divorce Law Monitor

Consideration of “Savings for a Rainy Day” Deemed Appropriate in Determining Amount of Alimony

March 18, 2024


It has long been disputed whether alimony paid from one spouse to another should allow the recipient to save for a rainy day. The Supreme Judicial Court of Massachusetts weighed in on that issue for the first time on March 7, 2024, in Openshaw v. Openshaw. The Court decided that where the parties routinely saved money during the marriage and the parties’ combined post-divorce income is adequate to allow that to continue, a judge may account for savings in determining the appropriate amount of alimony.

In Openshaw, the parties had been married for over thirty (30) years. They had six children and enjoyed an upper-middle class lifestyle during the marriage, which included, among other things, a routine and significant contribution to investments and savings. The parties consistently put funds not used to cover the family’s expenses into investment and retirement accounts and donated approximately 10% of their income to their church each year. Based upon their generous incomes and comparatively modest spending, even with the donations to the church, the parties were accumulated significant assets, including bank, investment, and retirement accounts.

During the marriage, the husband earned significantly more income than the wife. The wife sought an award of alimony from the husband upon divorce. The wife included on her financial statement at the time of the divorce trial $1,000 per week for savings and $730.64 per week for charitable giving. Based upon the expenses she set forth on her financial statement, the trial court determined that her “need” for support, including the savings and charitable giving components of her stated expenses, and ordered the husband to pay the wife $5,020 per week as alimony , which covered those expenses.

The husband appealed. The husband alleged that the trial judge improperly considered the parties’ custom of saving during their marriage in setting the amount of alimony paid to the wife.

In upholding the trial court’s ruling that it was appropriate to include a savings component in the amount of alimony payable from the husband to the wife, the Supreme Judicial Court reasoned that the alimony statute specifically requires a judge to consider “marital lifestyle” and the ability of each party to maintain that lifestyle post-divorce in determining alimony. The Court further reasoned that “marital lifestyle” invariably includes the typical way in which the couple regularly spends or allocates their income during the marriage. If the allocations are “so customary as to identify the parties’ financial decision-making during the marriage,” they must be considered part of the marital lifestyle.

The Court found that a judge must consider savings where devoting income to savings was a regular practice during the marriage. A judge must also consider whether the parties have combined income sufficient to permit both parties to maintain the marital lifestyle, as the alimony statute states that the amount of alimony generally should not exceed the recipient spouse’s need for support and the payor spouse’s ability to pay.

The Openshaw Court ruled, “Because it is in the manner in which a couple consistently allocated marital income – not just how they spent it on day-to-day expenses and luxuries – that determines their standard of living during the marriage, nothing in the limitation that the alimony award generally must not exceed the recipient spouse’s “need”… precludes a judge from considering the parties’ regular practice of saving.” However, this may only be true if the post-divorce income of the couple is adequate to allow both parties to maintain the marital standard of living.  If the couple’s post-divorce income is insufficient to allow both parties to maintain the marital lifestyle, it may not be appropriate for a judge to take into consideration a savings component in the amount of alimony.

Given the ruling in Openshaw, parties who routinely saved money during the marriage would be wise to include “savings” as a weekly expense when completing the Financial Statement form in their divorce matter. That way, there may be a rainbow after a rainy day, and a pot of gold at the end of it.

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