Alimony

RECENT CHANGES IN MASSACHUSETTS TO ALIMONY LAW AFFECTING DIVORCING AND DIVORCED SPOUSES
Introduction

In 1974, changes were made to the law pertaining to alimony in Massachusetts giving judges flexibility in formulating alimony orders. Judges had discretion to make orders on a case to case basis which was dependent upon the particular facts of a divorce case. However, the broad discretion lead to inconsistent and arbitrary decisions. It was difficult to advise clients as to the likelihood of an alimony order, how much the order could be, or how long it could continue. Sometimes, cases could be settled on all matters pertaining to a divorce except alimony. The case would need to be bifurcated and would go to trial on alimony only.

Due to the uncertainty in the alimony law over the years, lawyers and legislators collaborated on a new alimony statute to set clear rules regarding alimony. The Alimony Reform Act of 2011, which went into effect on March 1, 2012, has provided definitive and unambiguous standards for alimony in Massachusetts. It has provided lawyers and judges the frame work needed to address alimony in divorces and modifications after divorce. The new alimony statute enacted falls under Massachusetts General Laws, Chapter 208, Section 48 to 55.

Alimony Definitions

Alimony is defined in the statute as “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.” M.G.L. c. 208, Section 48. There are four different types of alimony under the new law. These four types of alimony had been utilized prior to the new statute. However, they had not been completely defined. The four categories of alimony are as follows:

  1. General term alimony is defined as “the periodic payment of support to a recipient spouse who is economically dependent.” It consists of weekly payments for marriages 20 years or less ending under durational limits depending on the length of the marriage. It also ends on death of either spouse or remarriage of the recipient spouse. For marriages longer than 20 years, this alimony can be indefinite. General term alimony may be modified upon a material change in circumstances.
  2. Rehabilitative alimony is defined as “the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse under a judgment.” In most circumstances, this alimony shall not be paid for more than 5 years. It can be a definite sum paid in periodic payments or upon a certain event. This alimony can be modified if there is a material change in circumstances.
  3. Reimbursement alimony is defined as “the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years to compensate the recipient spouse for economic or noneconomic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training.” Reimbursement alimony is not modifiable.
  4. Transitional alimony is defined as ”the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce.” Transitional alimony is not modifiable.
Time Limitations

The new statute addresses time limits on alimony in several different ways. Previously, there was not a limit on general term alimony orders ending when the obligor spouse reached full retirement age. The statute now terminates general term alimony orders when an obligor reaches full retirement age as defined under federal social security law. It does not end if the spouse chooses to retire early to take early retirement benefits. Further, the statute states that alimony ends at full retirement age once a general term alimony order is issued. It does not specifically address circumstances when a potential payor spouse continues to work after full retirement age prior to an alimony order being issued. However, the statute does state that the payor’s ability to work beyond full retirement age shall not be a reason to extend the alimony order unless certain criteria are satisfied.

There are other time limits on alimony as well. The durational guideline for general term alimony is defined by the length of the marriage. The length of the marriage is determined by the date of marriage to date of service of the divorce complaint. The durational limitations for general term alimony are as follows:

  • For marriages 5 years or less, it shall continue for no more than 50% of the number of months of the marriage;
  • For marriages 10 years or less but more than 5, it shall continue for no more than 60% of the number of months of the marriage;
  • For marriages 15 years or less but more than 10, it shall continue for no more than 70% of the number of months of the marriage;
  • For marriages 20 years of less but more than 15, it shall continue for no more than 80% of the number of months of the marriage; and
  • For marriages longer than 20 years, alimony can be of an indefinite length.

General alimony can also be terminated, suspended or reduced depending on the circumstances, if the recipient spouse cohabitates with another person and maintains a common household for at least 3 months. Alimony cannot be reinstated for longer than the alimony termination date in the original order. Further, alimony cannot be reinstated after remarriage of the alimony recipient unless the parties agreed for it to continue in writing.

Amount of Alimony

The new statute further places a maximum limit on the amount of alimony. Other than reimbursement alimony, the amount of alimony shall not exceed 30% to 35% of the difference between the parties’ gross income determined at the time of the order. Further, gross income excludes capital gain income and dividend and interest income from assets to be divided between the parties as a result of the divorce. More importantly, it excludes income utilized to calculate child support under the guidelines. In other words, if a payor’s gross income is used to calculate child support for the maintenance of unemancipated children, there would not be any remaining income warranting an alimony order.

Deviation in Alimony

In setting an alimony order or modifying an order after divorce, the court may deviate from the length and amount of general term and rehabilitative alimony upon written findings that the change is necessary. The deviation factors are as follows:

  • Advanced age, chronic illness or unusual health situations of either party;
  • Tax considerations of either party;
  • The payor is providing health insurance and the cost for the coverage for the recipient spouse should be considered;
  • The payor is ordered to secure life insurance and the cost for the coverage for the recipient spouse should be considered;
  • Sources and amounts of unearned income from assets not part of the divorce action;
  • Significant pre-marital cohabitation that included economic partnership or marital separation of significant duration, each of which may be considered in determining the length of the marriage;
  • A party’s inability to provide for their own support due to physical or mental abuse by the payor;
  • A party’s inability to provide for their own support by reason of the party’s deficiency of property, maintenance or employment opportunity; and
  • Upon written findings any other factor that the court deems relevant and material.

Lastly, if the court orders alimony concurrent with or subsequent to a child support order, the combined duration of the alimony and child support order shall not exceed the longer of (1) alimony or child support duration available at the time of the divorce or (2) rehabilitative alimony beginning upon the termination of child support (the maximum payment period of 5 years).

Modification Actions

Under the new alimony statute, the obligor’s remarriage doesn’t affect the original alimony order. The new spouses’ income or assets cannot be considered in redetermination or modification of the alimony order. Additionally, after the initial alimony order, a payor’s income from a second job or overtime cannot be considered to modify the original order if the payor works full-time.

When a payor is under an existing alimony order prior to the enactment of the new statute, it is considered to be general term alimony. If the existing order exceeds the durational time limitations under the new statute, it can be modified without a material change of circumstances. However, the court can find that the time limit under the existing order should continue. Additionally, if the parties agreed in the alimony judgment that alimony is non-modifiable or alimony survived the divorce judgment, alimony cannot be modified.

Modification actions can be filed based on the alimony order exceeding durational time limits under the new statute in accordance with the following time line:

  1. Parties married 5 years of less can file – 3/1/13;
  2. Parties married 5 to 10 years can file – 3/1/14;
  3. Parties married 10 to 15 years can file – 3/1/15;
  4. Parties married 15 to 20 years can file – 9/1/2015;
  5. A payor reaching full retirement age on or before 3/1/15 can file – 3/1/13.

For further information, please contact Attorney Susan Fiore by phone at 617-620-5762 or by e-mail at suefiore@verizon.net

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