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.

Cases Pertaining to the Alimony Reform Act of 2011

Jeffrey W. Flor vs. Theresa M. Flor, 92 Mass.App.Ct. 360 (2017) – Alimony awarded

The judge’s award of general term alimony was affirmed by the Appeals Court of Massachusetts. The action was to modify a judgment of divorce for future spousal support which occurred before the Alimony Reform Act became effective on March 1, 2012. In the separation agreement, the issue of future alimony merged into the divorce judgment leaving it open to modification. The court found that the trial judge did not err in awarding the wife spousal support indefinitely and his determination that there was a material change of circumstances was warranted. The judge concluded that the parties’ child becoming emancipated, which would terminate child support payments, was a material change in circumstances. Further, the judge properly applied Mass. General Laws chapter 208, Section 37 governing a modification prior to the enactment of the Alimony Reform Act. There was a modification in 2016 to the divorce judgment after the reform act was effective. However, the court found that as the issue of future alimony was merged into the divorce judgment and Wife had waived past and present alimony in the 2008 judgment of divorce, the parties had expressly addressed the issue of alimony in their separation agreement. Therefore, this was a complaint for modification and not an initial complaint for alimony. The court found that the provisions of the Alimony Reform Act were not applicable.

Manohar A. Lalchandani vs. Ruth H. Roddy, 86 Mass.App.Ct. 819 (2015) – Alimony continued

The former husband appealed dismissal by the trial court of his complaint for modification of a divorce judgment. He sought a decrease or termination of his alimony obligation. The appeals court held that he was not entitled to a modification based on the fact that he had reached full retirement age per the Social Security Administration. Under the Alimony Reform Act, it states that once alimony is issued general term alimony shall terminate upon the payor attaining full retirement age. However, the court can deviate from this provision based on factors stated in Section 53(e) of the Act. The recipient would have the burden to establish this deviation. The appeals court found he was not entitled to termination of alimony in this case as the alimony obligation survived the divorce judgment in the separation agreement and did not merge. Alimony would only terminate in the separation agreement based on death or wife’s remarriage. Section 4(c) of the Act prevents modification of a surviving alimony obligation.

Margot E. Frost-Stuart vs. Charles F. Stuart, 90 Mass.App.Ct 366 (2016) – Alimony continued

The Father sought termination of alimony and mother filed a counterclaim seeking an increase in child support if alimony payments were reduced or terminated. Under the Act, if the recipient cohabitates with another for at least 3 months, alimony can be suspended, reduced or terminated. However, the recipient spouse’s economic situation must be materially changed from the cohabitation. A judge may not modify a judgment solely based on the cohabitation itself. The court further found the judge abused his discretion by modifying father’s child support obligation. He attributed income to mother and attributed income in the form of a contribution to the household from cohabitating boyfriend without making specific findings about the lack of obligation of boyfriend to support the children among other findings. (See the Chin case below, the Supreme Judicial Court determined in January of 2015 that the Act’s cohabitation provision applies only to prospective support obligations which were established after the effective date of the Act, March 1, 2012). This divorce judgment established alimony prior to the effective date and the standard to terminate alimony would be based on a material change in circumstances for modifiable alimony provisions.

Chester Chin vs. Edith E. Merriot, 470 Mass. 527 (2015) – Alimony continued

The Supreme Judicial Court determined that the retirement provision and the cohabitation provision of the Act applied prospectively only to alimony obligations being set after the effective date of the Act on March 1, 2012. The Plaintiff, Chin, was 67 at the time of the divorce on August 17, 2011. Alimony, under the separation agreement, terminated on death or wife’s remarriage. In March of 2013, Chin filed a modification seeking termination of his alimony obligation claiming that under the Act alimony shall terminate upon reaching full retirement age. He also claimed his ex-wife was cohabitating with another for more than 3 months. The SJC concluded that there was no basis to terminate the alimony order.

George J. Rodman vs. Roberta Rodman, 470 Mass. 539 (2015) – Alimony continued

This case was decided by the Supreme Judicial Court after the Chin case. The court held that attaining full retirement age afforded no basis to terminate alimony retroactively to alimony orders entered prior to the effective date of the Act. The only exception to termination was alimony payments exceeding the statutory durational limits under the Act (M.G.L. c. 208, Section 49). However, the court also stated that under no circumstance will the durational limits exception be available when the existing divorce judgment pertaining to alimony survives the divorce judgment and is not modifiable.

Elaine M. Holmes vs. Kenneth E. Holmes, 467 Mass. 653 (2014) – No credit for temporary Alimony paid

The Supreme Judicial Court ruled on whether a Husband should be given credit for temporary alimony paid during the pendency of a divorce action under the Act. In calculating the durational limits of general term alimony under the Act, based on a 17 year marriage in this case, the alimony payments would be 80 percent of the number of months of the marriage from date of marriage to date of service of the complaint for divorce. The Act did not provide reference to this issue as to temporary alimony. The SJC found that general term alimony under the Act should commence only on the judgment of divorce being issued. However, if the judge concludes that alimony has been paid for a long period and the recipient spouse delayed the payment of alimony, the judge it his/her discretion can determine the duration of alimony shall be below the durational time limits under the Act. In this case, wife suffered health problems with a cancer diagnosis and had deceased ability to earn income.

Joseph W. Doktor vs. Dorothy A. Doktor, 470 Mass. 547 (2015) – Alimony continued

The Supreme Judicial Court decided this case on the same day as the Rodman case above. The former Husband brought the action seeking a modification pertaining to termination of his alimony payments based on his retirement and that his ex-wife no longer needed alimony. The SJC dismissed the complaint for modification as he filed the complaint for modification prior to the effective date of the Act. The SJC further set forth guidelines on the “interest of justice” standard in a deviation of alimony payments to be extended beyond the general alimony limitations as set forth in the Act, M.G.L. c. 208, Section 49(b). Alimony can exceed the durational limits of general term alimony under the Act if there is a material change in circumstances and required in the interests of justice. The recipient spouse has the burden of proving by a preponderance of the evidence that the deviation is a material change in circumstances. The deviation in extending alimony must be that there is a material change with the parties in their respective living situations, including financial issues, among other factors as stated under the Act. (See also SJC decision, Clifford E. George vs. Jacquelyn A. George, 476 Mass. 65 (2016).

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