Determining Alimony in Massachusetts
The Alimony Reform Act of 2011...
Massachusetts law defines alimony as "the payment of support from
a spouse, who has the ability to pay, to a spouse in need of support."
The central objective of alimony is, subject to the availability of resources,
maintenance of the more dependent spouse in an economic style close to
which the spouse had become accustomed during the marriage. The Alimony
Reform Act of 2011 ("the Act") went into effect in Massachusetts
on March 1, 2012. The Act is codified under Massachusetts General Laws,
Chapter 208, Sections 48 through 55. The Act applies to divorce and separate
support actions. Prior to the enactment of the Act, there aware no authorities
requiring the trial judge to use or to consider a particular formula or
to establish a specific cutoff date in setting an award of alimony. The
Act classifies post-reform alimony orders into four distinct categories
specifically defined in the statute: 1) general term alimony; 2) rehabilitative
alimony; 3) reimbursement alimony; and 4) transitional alimony. In general,
these classifications are distinguished from one another based on the
nature, duration, and amount of the payment.
Factors to be Considered in Awarding Alimony:
In determining the appropriate form of alimony and in setting the amount
and duration of support, a court shall consider: the length of the marriage;
age of the parties; health of the parties; income, employment and employability
of both parties, including employability through reasonable diligence
and additional training, if necessary; economic and non-economic contribution
of both parties to the marriage; marital lifestyle; ability of each party
to maintain the marital lifestyle; lost economic opportunity as a result
of the marriage; and such other factors as the court considers relevant
Duration of Alimony Payments:
General term alimony – When a marriage is twenty years or less, the Act limits alimony
to a period of time that is a percentage of the number of months of the
marriage. The percentage differs depending on the length of the marriage
and ranges anywhere from fifty percent (50%) of the number of months of
the marriage to eighty percent (80%) of the number of months of the marriage.
The Act allows for indefinite orders of alimony for marriages that exceed
Rehabilitative alimony – The alimony term for rehabilitative alimony shall be not more
than 5 years.
Transitional alimony – Transitional alimony shall terminate upon the death of the recipient or
a date certain that is not longer than 3 years from the date of the parties' divorce.
Reimbursement alimony – Reimbursement alimony shall terminate upon the death of the recipient or
a date certain.
Method for Determining Length of Marriage:
The Act defines the length of the marriage as the number of months from
the date of legal marriage to the date of service of a complaint or petition
for divorce or separate support duly filed in a court of the commonwealth
or another court with jurisdiction to terminate the marriage; provided,
however, that the court may increase the length of the marriage if there
is evidence that the parties' economic marital partnership began during
their cohabitation period prior to the marriage.
Events Triggering Termination of General Term Alimony:
Death or remarriage – General term alimony shall terminate upon the remarriage of the recipient
or the death of either spouse
Payor obtaining full retirement age – General term alimony shall terminate upon the payor attaining the full
retirement age. The Act defines "full retirement age" as the
age which a payor is eligible to receive full retirement benefits under
the United States Old Age, Survivors, and Disability Insurance program.
The payor's ability to work beyond the full retirement age shall not
be a reason to extend alimony, provided that: (1) When the court enters
an initial alimony judgment, the court may set a different alimony termination
date for good cause shown; provided, however, that in granting deviation,
the court shall enter written findings of the reasons for deviation. (2)
The court may grant a recipient an extension of an existing alimony order
for good cause shown; provided, however, that in granting an extension,
the court shall enter written findings of: (i) a material change of circumstance
that occurred after entry of the alimony judgment; and (ii) reasons for
the extension that are supported by clear and convincing evidence. The
retirement provisions of the new law do not apply to Rehabilitative, Reimbursement
and Transitional Alimony.
Cohabitation – General term alimony shall be suspended, reduced or terminated upon the
cohabitation of the recipient spouse when the payor shows that the recipient
spouse has maintained a common household with another person for a continuous
period of at least 3 months. Persons are deemed to maintain a common household
when they share a primary residence together with or without others. In
determining whether the recipient is maintaining a common household, the
court may consider any of the following factors: (i) oral or written statements
or representations made to third parties regarding the relationship of
the persons; (ii) the economic interdependence of the couple or economic
dependence of 1 person on the other; (iii) the persons engaging in conduct
and collaborative roles in furtherance of their life together; (iv) the
benefit in the life of either or both of the persons from their relationship;
(v) the community reputation of the persons as a couple; or (vi) other
relevant and material factors. An alimony obligation suspended, reduced
or terminated due to cohabitation may be reinstated upon termination of
the recipient's common household relationship; but, if reinstated,
it shall not extend beyond the termination date of the original order.
The cohabitation provisions of the new law do not apply to Rehabilitative,
Reimbursement and Transitional Alimony.
Amount of Alimony:
Except for reimbursement alimony or circumstances warranting deviation
for other forms of alimony, the amount of alimony should generally not
exceed the recipient's need or 30 to 35 per cent of the difference
between the parties' gross incomes established at the time of the
order being issued. With the exception of capital gains income and dividend
and interest income which derive from assets equitably divided between
the parties under M.G.L. c. 208, §34, and gross income which the
court has already considered for setting a child support order, income
shall be defined as set forth in the Massachusetts child support guidelines.
In setting an initial alimony order, or in modifying an existing order,
the court may deviate from duration and amount limits for general term
alimony and rehabilitative alimony upon written findings that deviation
is necessary. Grounds for deviation may include: (1) advanced age; chronic
illness; or unusual health circumstances of either party; (2) tax considerations
applicable to the parties; (3) whether the payor spouse is providing health
insurance and the cost of health insurance for the recipient spouse; (4)
whether the payor spouse has been ordered to secure life insurance for
the benefit of the recipient spouse and the cost of such insurance; (5)
sources and amounts of unearned income, including capital gains, interest
and dividends, annuity and investment income from assets that were not
allocated in the parties divorce; (6) significant premarital cohabitation
that included economic partnership or marital separation of significant
duration, each of which the court may consider in determining the length
of the marriage; (7) a party's inability to provide for that party's
own support by reason of physical or mental abuse by the payor; (8) a
party's inability to provide for that party's own support by reason
of that party's deficiency of property, maintenance or employment
opportunity; and (9) upon written findings, any other factor that the
court deems relevant and material.
In general, a litigant may seek modification of an alimony order if there
is a "material change in circumstances." This standard existed
prior to the Act and is not changed by the new law. If there is a material
change in circumstances, then a litigant can file a complaint for modification
at any time.
General term alimony – Unless the payor and recipient agree otherwise, general term alimony may
be modified in duration or amount upon a material change of circumstances
warranting modification. Modification may be permanent, indefinite or
for a finite duration, as may be appropriate.
Rehabilitative alimony – Unless the recipient has remarried, rehabilitative alimony may be extended
on a complaint for modification upon a showing of compelling circumstances
in the event that: (1) unforeseen events prevent the recipient spouse
from being self-supporting at the end of the term with due consideration
to the length of the marriage; (2) the court finds that the recipient
tried to become self-supporting; and (3) the payor is able to pay without
undue burden. The court may modify the amount of periodic rehabilitative
alimony based upon material change of circumstance within the rehabilitative period.
Transitional alimony – No court shall modify or extend transitional alimony or replace transitional
alimony with another form of alimony.
Reimbursement alimony – The parties shall not seek and the court shall not order a modification
of reimbursement alimony.
Timing of modification – The Act unambiguously provides that the new durational limits shall apply
prospectively. Pre-Act alimony judgments which exceed the durational limits
under M.G. L. c. 208, § 49, are modifiable upon a complaint for modification
without additional material change of circumstance unless the court finds
that deviation from the durational limits is warranted. However, if the
alimony order in question already exceeds the time limits for general
term alimony in the new law, then a party is able to seek a modification
on the following schedule:
- If the payor was married 5 years or less, the payor can file a complaint
for modification on or after March 1, 2013;
- If the payor was married more than 5 years but less than 10, the payor
can file a complaint for modification on or after March 1, 2014;
- If the payor was married more than 10 years but less than 15, the payor
can file a complaint for modification on or after March 1, 2015;
- If the payor was married more than 15 years but less than 20, the payor
can file a complaint for modification on or after March 1, 2016; and
- If the payor was married more than 20 years, the payor can file a complaint
for modification on or after March 1, 2016, however, he or she will need
to demonstrate an independent material change in circumstances.
Limitations on modification – If the existing alimony order was entered by the court following a full
trial on the merits, then it is modifiable. Where the alimony obligation
derives from an agreement that the parties have agreed survives the divorce
judgment, under no circumstances shall the Act provide a right to seek
or receive modification of an existing alimony judgment. The clearly expressed
legislative intent of the statute is to provide finality to alimony agreements
that the parties have designated as final, either by designating them
as "not modifiable" or achieving the same result by agreeing
that alimony provisions shall "survive the judgment." That said,
case law which has allowed modification of surviving alimony orders when
"countervailing equities" exist still appears to be good law
and presumably will continue to be applied post-reform.
Security for Alimony Payments:
With respect to general term alimony, rehabilitative alimony and transitional
alimony, the court may require the payor spouse to provide life insurance
or another form of reasonable security for payment of sums due to the
recipient in the event of the payor's death during the alimony term.
Orders to maintain life insurance shall be based upon due consideration
of the following factors: age and insurability of the payor; cost of insurance;
amount of the judgment; policies carried during the marriage; duration
of the alimony order; prevailing interest rates at the time of the order;
and other obligations of the payor.
Attribution of Income:
In determining the incomes of parties with respect to the issue of alimony,
the court may attribute income to a party who is unemployed or underemployed.
Income from Second Job or Overtime:
Income from a second job or overtime work shall be presumed immaterial to
alimony modification if: (1) a party works more than a single full-time
equivalent position; and (2) the second job or overtime began after entry
of the initial order.
Effect of Payor's Remarriage:
In the event of the payor's remarriage, income and assets of the payor's
spouse shall not be considered in a redetermination of alimony in a modification action.
David M. Baker, Esq.-
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