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A Brave New World: Alimony Reform
October 12, 2011
On September 27, 2011, the Massachusetts governor signed into law an alimony reform bill that dramatically alters the permissible forms of alimony, the way alimony is calculated, and the duration of alimony awards in Massachusetts. Prior to the new law, where alimony was warranted following a trial, a Probate Court Judge had no discretion regarding the duration of the award – alimony would be awarded “for life,” (i.e., “until the death of the payor or payee, or marriage of the payee.”) Following the recent change in the law, the duration of alimony is subject to a calculation which is entirely dependent upon the length of marriage. The new law also establishes special new categories of divorce alimony that limit payments according to factors like length of marriage and the earning capacity of each partner. For instance, in marriages lasting no longer than five years, a periodic or one-time payment of “reimbursement alimony” may be paid to compensate an ex-spouse for economic or non-economic contributions, including enabling the payor to complete an education or job training. After a marriage of no more than five years, a court may also order a periodic (but for no longer than three years from the date of divorce) or one-time payment of “transitional alimony” to help equalize the payor and payee’s living standards after divorce. An award of “rehabilitative alimony” would generally be limited to not more than five years for ex-spouses who are expected to reach economic independence by a predicted time. The purpose of this form of alimony or spousal support is to encourage the supported spouse to enter into or return to the workplace. On the other hand, for marriages exceeding twenty years, alimony payments would be indefinite and modifiable based on changed circumstances occurring in the future.
“General term” alimony is the rough equivalent of the type of alimony awarded prior to the new law and is the periodic payment of support to a recipient spouse who is economically dependent. While the award of general term alimony is, under the new law, still based on need of the payee and ability to pay of the payor, there are now very specific durational limits based on the length of marriage. For instance, for a marriage of five years or less, general term alimony shall be no greater than one-half the number of months of the marriage. These short term marriages provide the best contrast between the past and the present state of alimony law in Massachusetts: prior to the new law, in a marriage lasting four years, the Court would have no discretion but to order lifetime alimony if any award of alimony was warranted. Under the new law, the alimony award would terminate no later than two years after the date of divorce following a four year marriage.
The new law provides further considerations which favor the payor. Prior to the passage of alimony reform, there was no presumption that alimony being paid to a former spouse who moves in with a boyfriend or girlfriend should terminate upon cohabitation. Under the current construct, general term alimony shall be suspended, reduced or terminated upon the cohabitation of the payee when the payor shows that the former spouse has maintained a common household with another person for at least three months.
Further changes benefiting the payor include the new law’s presumption that general term alimony will terminate upon the payor’s attaining full-retirement age (generally understood to mean age 68) and that, for all types of alimony except reimbursement alimony, the amount of alimony should generally not exceed the payee’s need or 30-35% of the difference between the parties’ gross incomes at the time the alimony order is issued.
While the new alimony law does not provide immediate relief for individuals responsible for paying alimony awards (made prior to the September 27 enactment of the new law) that exceed the new durational limits, it does permit modification of certain prior alimony awards after the passage of a waiting period. As with the duration of the award, the waiting period is also calculated by reference to the length of the marriage. For instance, for marriages of five years or less, an alimony payor may file a modification action on or after March 1, 2013. Payors who were married between five and ten years have to wait until March 1, 2014, while payors married between 10 and fifteen years may file on or after March 1, 2015.
The new law does not eliminate a judge’s discretion entirely. The court may deviate from duration and amount limits for general term alimony and rehabilitative alimony when necessary. Tax considerations are a factor. Advanced age, chronic illness or unusual health circumstances may also be considered. The new statute sets out eight categories that may justify deviation and a ninth catch-all category that includes “any other factor that the court deems relevant and material.”
The new law does not alter the contractual obligations of parties to a surviving separation agreement, which will still be treated as an independent contract, or to a valid, enforceable prenuptial agreement.
If you have any questions about the alimony reform, please contact Jennifer A. Yelen or any other attorney in our Domestic Relations Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2011 Posternak Blankstein & Lund LLP. All rights reserved.