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 and material.

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 twenty years.

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.

Deviation:

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.

Modification:

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.

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