In Openshaw v. Openshaw, 493 Mass. 599 (2024), the Supreme Judicial Court held for the first time that a couple's regular saving during the marriage can be part of the marital lifestyle a judge considers when setting alimony. A demonstrated habit of saving, not only a habit of spending, can factor into what a fair award looks like. Two conditions come with it: the record has to show that saving was a regular practice, and there has to be enough combined income after the divorce for both spouses to maintain the marital standard of living.
Massachusetts alimony has long been anchored to the marital lifestyle, meaning the standard of living established during the marriage. In practice, that idea was usually applied to what a couple spent. Housing, vacations, cars, school fees, the ordinary discretionary purchases that make up a way of living.
That leaves an obvious question unanswered, and it is one that affects careful households more than extravagant ones. If a couple consistently put a meaningful share of their income aside instead of spending it, is that saving also part of the lifestyle the alimony statute is meant to preserve? Or does a couple who lived below their means get treated, at divorce, as though they had only ever lived at the level of their spending?
In March 2024 the Supreme Judicial Court answered that question directly for the first time.
What Did the SJC Decide in Openshaw?
The Supreme Judicial Court decided Openshaw v. Openshaw on March 7, 2024. The question before it was whether a Probate and Family Court judge may consider a divorcing couple's custom of saving money when determining the amount of alimony. The Court held that a judge properly may consider such saving as a component of the couple's marital lifestyle in awarding alimony.
The reasoning runs through the words of the statute. Under G.L. c. 208, section 53(a), a judge deciding the form, amount and duration of alimony is required to consider a list of factors that includes the marital lifestyle and the ability of each party to maintain the marital lifestyle. The Court concluded that the plain meaning of that directive requires consideration of saving where the evidentiary record shows it was a regular practice during the marriage. Where a couple's customary financial decisions regularly allocated income to savings, and that allocation characterised how they lived, it is part of the standard of living the statute points the judge toward.
The underlying principle is one of neutrality between two ways of using the same income. A household that spent its surplus on travel and a household that moved the same surplus into a brokerage account each made a choice about how to live. Treating only the first as evidence of lifestyle would build a penalty into the alimony analysis for the couple who chose to save.
This was the first time the SJC extended the marital lifestyle concept explicitly to saving rather than spending.
The Two Conditions the Court Attached
Openshaw is frequently described as a decision that savings now count in alimony. That is the headline, but the decision is narrower and more conditional than the headline suggests, and the conditions are where most of the practical work happens.
Savings Count Only Where Both of These Hold
1. The record shows a regular practice of saving during the marriage. The Court's language is about a customary, ongoing allocation of income, not an isolated event. A single strong year, an inheritance left untouched, or a one-off bonus that was not spent does not establish that saving characterised the marriage.
2. The combined income after the divorce is adequate for both spouses to maintain the marital standard of living. This condition is easy to skim past and it does a great deal of limiting work. The savings component is available where there is genuinely enough to go around, not as a way of allocating a shortfall.
The second condition deserves emphasis, because it sets expectations honestly. Divorce ordinarily means one income supporting two households, and in most cases both households step down from the marital standard of living as a matter of arithmetic. Where that is what the numbers show, the savings argument has little room to operate. It has room where there is real surplus after both parties are provided for.
That is the setting the case itself arose in. The parties in Openshaw had been married for nearly thirty years, had six children, and in the two full years before their separation reported combined income of more than $1.3 million. Reading the decision as a general rule for every case, rather than as a holding calibrated to a long marriage with substantial surplus income, is the most common way to misread it.
Why Does This Matter for the Alimony Amount?
Alimony in Massachusetts is driven by the recipient's need, measured against the marital lifestyle. Openshaw affects what may go into that measurement.
If a couple habitually saved, say, twenty percent of their income during the marriage, Openshaw supports an argument that the recipient spouse's post-divorce need can include an amount attributable to continuing that saving pattern, rather than being limited to replicating monthly spending. The saving is treated as part of how the couple lived, so the ability to keep doing it is part of what the analysis is looking at.
In concrete terms, the figures that can become relevant are the ones a household treated as untouchable: recurring retirement plan contributions, a standing monthly transfer into an investment account, the portion of income that simply never entered the spending column. Before Openshaw these were relatively easy to characterise as wealth accumulation sitting outside the lifestyle question. After it, where the two conditions are met, they can form part of the need analysis itself.
Does This Change the 30 to 35 Percent Ceiling?
No, and this is the point most likely to be lost in summary.
Openshaw addressed only the need side of the analysis, meaning the question of what counts toward marital lifestyle. It did not touch the separate limit in G.L. c. 208, section 53(b), under which the amount of alimony generally should not exceed the recipient's need or 30 to 35 percent of the difference between the parties' gross incomes, whichever is lower. The Court referred to that band as the presumptive parameters and observed that the order in front of it had not been challenged on the ground that it exceeded them. The band therefore operates alongside the need analysis, not in place of it, and Openshaw leaves it exactly where it was.
That two-part structure has a consequence worth understanding before anyone invests effort in the argument. Because the statutory limit takes the lower of need or the percentage band, increasing the need figure only moves the outcome if need was the binding constraint. Where the percentage band already sits below the demonstrated need, adding a savings component to need may not change the award at all. Whether the argument is worth making is a question about which of the two limits is actually doing the work in a particular case.
The related point, established separately in Cavanagh v. Cavanagh, is that the 30 to 35 percent band is a ceiling rather than a presumptively correct award, and that setting alimony at a bare percentage without first determining need is error. Our Massachusetts Alimony Calculator estimates that statutory ceiling, and the figure it produces is the top of the range rather than a prediction of an award.
Openshaw v. Openshaw, 493 Mass. 599 (2024), decided March 7, 2024, verified against the published decision as of August 11, 2026.
What Evidence Shows a Pattern of Saving?
The Court's condition is about a regular practice, so the evidence that matters is evidence of regularity across time rather than of a single impressive balance. A large account says what a couple accumulated. It does not by itself say that setting money aside was how they lived.
The records that tend to demonstrate the pattern are ordinary ones:
- Retirement account contribution histories. Employer plan records and account statements showing consistent contributions over years, particularly voluntary contributions above any automatic or matched amount.
- Brokerage and investment account statements. Not the balance alone, but the deposit history that built it.
- Recurring transfers. Standing monthly or per-paycheck transfers from a current account into savings or investment accounts, which are among the clearest available evidence of a deliberate practice.
- Tax returns across the same period. Investment income growing steadily alongside earned income corroborates a sustained pattern rather than a one-off.
Much of this material is produced in the ordinary course of a Massachusetts divorce in any event, under the mandatory disclosure rules, so the work is usually one of assembling and presenting it rather than of obtaining it. Our Divorce Document Checklist covers the financial records normally gathered at the start of a case, and the Marital Asset Inventory Worksheet is a practical way to organise accounts before a first meeting.
What This Means If You Are Negotiating Alimony
If you and your spouse maintained a disciplined savings habit during the marriage, that pattern is now a documented and citable factor in an alimony analysis rather than an incidental detail of your finances. Bank and retirement account statements showing consistent contributions over time are more relevant evidence than they were before this decision, and they are worth gathering early.
The point cuts in both directions, which is why it is worth understanding rather than simply invoking. A recipient spouse in a long marriage with genuine surplus income has an argument that did not clearly exist before March 2024. A payor spouse facing that argument has two well-defined questions to ask in response: does the record actually show a regular practice, and is there really enough combined income for both households to maintain the marital standard of living? Where either answer is no, the conditions the SJC attached are not satisfied.
Whether the argument helps in any particular case depends on the length of the marriage, the documentary record, and which of the two statutory limits is binding on the numbers. If alimony is at issue in your divorce and saving was a real part of how your household ran, contact us for a confidential consultation. We represent clients across Essex and Middlesex Counties and the North Shore from our office in Topsfield, with appointments available in Gloucester and North Andover.