Massachusetts appellate courts have long struggled with whether a “seeming[ly] unjust” double counting of income occurs when a trial judge divides property that includes a closely held business, values that business using an “income theory”, and then orders alimony to be paid from the same source. The cases boil down to a definite maybe, requiring a court to discern an unfair double dip from an acceptable one, including whether or not there are “separate parts” of the asset. A variety of circumstances could lead the fact-finder to different outcomes.
Now, alimony “reform” legislation (eff. 3/1/12) precludes the Court counting expected capital gains, interest or dividend income from any divided assets, as income for alimony computation. Does this settle the double dip question for all time and purposes? Is the judgmental task of fair or unfair double counting over?
We doubt that the business valuation question was squarely in mind of the legislators when they passed the alimony bill; but it seems inconceivable that the next time an appellate panel hears this issue that the business owner will not argue for a blanket exclusion of any business income for alimony computation purposes, citing the alimony statute. If the argument succeeds, and there is no other source of income to tap for the support of a dependent spouse, where does that leave the parties?
Settlement of one issue always seems to beget another.