Alimony

What You Need To Know About Alimony In Massachusetts

 A major law affecting alimony in Massachusetts took effect as of March 1, 2012. Among the changes brought by the Act are:

1. the establishment of four separate categories of alimony;
2. principles by which the amount and maximum durational limits of each category of alimony are to be determined;
3. suspension, reduction, or termination of alimony during period of cohabitation;
4. termination of alimony upon attainment by the payor of full retirement age; and
5. a requirement that the amount and duration of alimony be considered in the overall division of marital assets.

The Act sets forth mandatory factors that the Court will consider when deciding the issue of alimony. In determining the appropriate form, amount, and duration of alimony the Court will look at: the length of the marriage; age of the parties; health of the parties; both parties’ incomes, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution 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 may deem relevant and material. In general, the amount of alimony should not exceed the recipient’s need or 30% to 35% of the difference between the parties’ gross incomes at the time of the order.

General Term Alimony

 General term alimony is the new category of alimony that most closely resembles previous court-ordered alimony. Under the Alimony Reform Act, general term alimony will automatically end upon the death or remarriage of either spouse and will generally terminate when the payor reaches full retirement age, despite his or her ability to continue working. Typically, the duration of general term alimony will not exceed the length of the marriage and it will be calculated as a number of months based on the length of the marriage. The duration of marriage is considered to be from the date the individuals married to the date a spouse filed for divorce or separate support. However, this duration can be increased if there is evidence that prior to their marriage the parties lived together and had an economic marital partnership during a period of cohabitation.

The Court may still order lifetime alimony for marriages longer than twenty years; however, for marriages of twenty years or less the amount of alimony ordered is based on the duration of the marriage as follows:

• five years or less, alimony payments will not last more than one-half of the number of months of the marriage;
• ten years or less, but more than five years, alimony payments will not last more than sixty percent of the number of months of the marriage;
• fifteen years or less, but more than ten years, alimony payments will not last more than seventy percent of the number of months of the marriage;
• twenty years or less, but more than fifteen years, alimony payments will not last more than eighty percent of the number of months of the marriage.

These durational limits are retroactive and therefore do apply to divorces that occurred prior to the effective date of the Act, March 1, 2012. The Act also includes additional provisions to provide for the termination, reduction or suspension of alimony payments.  Alimony may now be suspended, reduced or terminated when an alimony recipient is cohabitating with another individual.  Furthermore, under most circumstances, alimony will terminate upon a payor’s attaining full retirement age which the Act defines as the payor’s normal retirement age to be eligible to receive full retirement benefits under the Social Security program. Retirement and cohabitation are grounds for modification or termination of alimony only for divorces occurring after the effective date of the statute. Retirement can still be a basis for modification/termination, but it must constitute a material change of circumstances.

Cohabitation

 Under the prior alimony laws an alimony order was typically entered and continued until the death of either party, the remarriage of the recipient, or by order of the court. However, under the new Alimony Reform Act alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient under circumstances that constitute maintaining a common household with another for a continuous period of at least three months. The Act states that persons are deemed to maintain a common household when they share a primary residence together with or without others. In cases where the maintenance of common household is in question the Court will take into consideration among other relevant factors the following:

1. statements to third persons regarding the couple’s relationship;
2. the economic interdependence of the couple or the economic dependence of one person on the other;
3. the benefit from the relationship in the life of either or both of the persons;
4. whether the couple are engaging in conduct and collaborative roles in furtherance of their life together;
5. the reputation in the community of the persons as a couple; or
6. other relevant and material factors.

Once it is determined that a common household is being maintained, alimony payments shall be suspended, reduced, or terminated. A Complaint for Modification can be filed by the payor and the Court will determine whether a reduction or termination of alimony is warranted. If the relationship is long-lasting and the cohabitating partner is contributing financially with some savings and/or assets a termination of alimony may be likely. However, if the cohabitating partner is disabled or unemployed a reduction of alimony would not be likely. In order to determine whether alimony is reduced or terminated the recipient of alimony must disclose what  is paid for by the cohabitating partner. This will allow the court to determine if the cohabitating partner has reduced the recipients need for financial support. Again, cohabitation is only a basis for modification in divorces occurring after the effective date of the Act.

 Modification of Existing Alimony Orders

If an alimony order was entered by the court after trial then it is modifiable. However, if the alimony order was part of a separation agreement then modification depends on the language of the agreement. If the parties have agreed that alimony is not modifiable or if the parties expressed their intention that their alimony provisions survive judgment then the alimony order is generally not modifiable under the new Act. However, if there is no such language in the separation agreement then modification of the alimony order may be allowed.

In general, a modification can be sought if there is a material change in circumstances, this standard existed prior to the reform act. Circumstances that may warrant modification include:

• Increased income
• Decreased income
• Job loss
• Increased costs
• Illness

Modification may also be sought on existing orders if the duration of the award exceeds the new guidelines for marriages of twenty years or less. However, modification cannot be sought immediately and phase in guidelines will govern the timeframe for bringing such actions and the length of the marriage will determine the date a person will be entitled to file a complaint for modification. This durational limit only applies to marriages which lasted twenty years or less as the indefinite orders are allowed for marriages that exceed twenty years. For example, if an individual has been paying alimony for ten years and the marriage only lasted five years, the payor individual would be entitled to seek an order terminating the alimony obligation based on this new law.  It is important to note that the bill does not change agreements where the parties agreed that alimony could not be modified or changed. If an individual seeks to modify the alimony based on the new law, a complaint for modification may only be filed pursuant to the following:

(1) Payors who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013.

(2) Payors who were married to the alimony recipient 10 years or less, but more than 5 years, may file a modification action on or after March 1, 2014.

(3) Payors who were married to the alimony recipient 15 years or less, but more than 10 years, may file a modification action on or after March 1, 2015.

(4) Payors who were married to the alimony recipient 20 years or less, but more than 15 years, may file a modification action on or after September 1, 2015.

Rehabilitative Alimony is the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as reemployment, completion of job training or receipt of a sum due from the payor spouse under a judgment. Rehabilitative Alimony should not extend beyond a maximum of five years unless the court finds “compelling circumstances” to continue it longer.

Such circumstances include unforeseen events that prevent the recipient from becoming self-sufficient within the predicted time or an unsuccessful effort by the recipient to become self-sufficient. Rehabilitative alimony terminates upon the remarriage of the recipient spouse, upon death of either party, or upon the occurrence of a specific further event that is set forth in the judgment. The amount of alimony should not exceed the recipient’s need or 30% to 35% of the difference between the parties’ gross incomes.

Reimbursement Alimony is the periodic or one-time payment of support in marriages not longer than 5 years to compensate the recipient spouse for economic or noneconomic contributions of the payor spouse, such as enabling the payor spouse to complete his/her education. In other words, a spouse who received financial assistance from the other while attending college or graduate school may be obliged to pay back the other upon divorce.

Reimbursement alimony terminates upon death of the recipient. Upon death of the payor the remaining alimony may constitute a debt of their estate. Unlike other forms of alimony, the amount of reimbursement alimony that can be ordered is not limited to the recipients need or 30% to 35% of the difference between the parties’ gross incomes.

Transitional Alimony is 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 result of the divorce.

Transitional alimony can only be granted in marriages of five years or less, cannot be modified, extended or replaced with any other form of alimony. Payments terminate upon death of the recipient, or on a date that is not longer than three years from the date of the divorce. Alimony should not exceed the recipient’s need or 30% to 35% of the difference between the parties’ gross incomes.

If you are going through a divorce and you have questions about alimony, please call us to schedule an consultation. We have the experience and legal knowledge that you need to move forward.