The Alimony Reform Act

Chapter 124 of the Acts of 2011 is a statutory rewrite of the alimony rules applicable to divorcing and divorced couples. The following is an effort to summarize the salient points of the statute for the reader:

1. The reform act amends General Laws, Chapter 208, Section 34, and adds Sections 48 to 55 to Chapter 208. Massachusetts General Laws Chapter 208, Section 52 sets forth the standard for determining the appropriate form of alimony, the duration, and the amount.

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 noneconomic 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.

2. The Reform Act establishes four categories of alimony, including General Term Alimony.

a. General Term Alimony most closely resembles the alimony awards made under General Laws Chapter 208, section 34 prior to the amendment of the statute. It is an order of periodic payment to a recipient spouse or ex-spouse. In addition to terminating upon the death of either party or remarriage of the recipient spouse, it is subject to new durational limits set forth below. It is also subject to new express amount limitations.

b. Rehabilitative Alimony is a periodic payment to a recipient who is expected to become economically self-sufficient at the end of a specific period of time, or upon the occurrence of a particular event, such as obtaining a certification enabling employment. Generally the court is instructed by the statute to limit rehabilitative alimony to a term of less than 5 years. It will also terminate on the death of either party, or remarriage of the recipient spouse.

c. Reimbursement Alimony may be ordered where the economic or noneconomic contribution of a spouse ought to be rewarded financially. It can be a lump sum payment or periodic payment over a term not exceeding 5 years. It terminates on the death of the recipient. Reimbursement Alimony is not modifiable. It does not terminate upon remarriage.

d. Transitional Alimony can be awarded to a spouse for the purposes of transition to a scaled-down lifestyle, or to a new location. It is limited to a maximum of three years, or the death of the recipient. Transitional Alimony is not modifiable. It does not terminate upon remarriage.

3. The Reform Act imposes the following durational limits on General Term Alimony:

a. In the definition section of the statute, the length of the marriage is defined as the period of time between the date of the marriage and service of the divorce papers. Where there is a period of cohabitation prior to the marriage during which there was an economic partnership, the length of the marriage may be extended. The length of time during which General Term Alimony is to be paid is limited by the length of the marriage.

b. Where remarriage is 5 years or less, alimony duration should be no more than half of the length of the marriage.

c. Where the marriage is 10 years or less, alimony duration should be no more than 60% of the length of the marriage.

d. Where the marriage is 15 years or less, alimony duration should be no more than 70% of the length of the marriage.

e. When the marriage is 20 years or less, alimony duration should be no more than 80% of the length of the marriage.

f. Where the marriage is more than 20 years, the court may order alimony to be paid for an indefinite term.

g. Unless otherwise modified, Indefinite General Term Alimony ceases upon the death of either party, the remarriage of the recipient and/or the payor reaching full retirement age as defined y the Social Security Act and Regulations.

h. In setting an initial alimony order or in modifying an existing alimony order, the court may deviate from durational and amount limitations for General Term Alimony and Rehabilitative Alimony upon written findings that deviation is necessary. Grounds for deviation may include health, tax considerations, health insurance costs, life insurance costs, amount and sources of unearned income, premarital cohabitation, a recipient’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor, a party’s inability to provide for his or her own support by reason of that party’s deficiency of property, maintenance, or employment opportunity, and upon written findings, any other factor that the court deems relevant and material.

i. If the recipient of General Term Alimony maintains a relationship of cohabitation, the court is empowered to suspend, reduce or terminate the alimony obligation. Cohabitation is defined as the maintenance of a common household over a continuous period of at least three months. The statute specifies several factors that the court should take into account when determining whether or not there is cohabitation: statements, economic interdependence, collaborative roles, the benefit realized and the community reputation of a couple, inter alia. If the cohabitation ceases the court may reinstate the alimony but the original termination date cannot be extended thereby.

j. When alimony is ordered concurrent with or subsequent to a child support order, the total duration of the obligations cannot exceed the longer of:

i. the alimony or child support duration available at the time of the divorce, or

ii. Rehabilitative alimony beginning upon termination of child support.

4. Amount Limitations:

a. Except for Reimbursement Alimony, the amount of alimony should generally not exceed the recipients need or 30 to 35% of the difference between the parties gross incomes established at the time of the order being issued. Income is defined as set forth in the child support guidelines.

b. Income that is used to calculate child support cannot be used in the calculation of an alimony payment.

c. Income from a second job or overtime shall be presumed immaterial to alimony modification if a party works more than a single full-time equivalent position; and the second job or overtime began after entry of the initial order.

5. Deviations and Modification:

a. The court may deviate from the durational limits applicable to General Term Alimony “for good cause shown”, when written findings at the time of the entry of the order.

b. The court may extend (on a complaint for modification) the duration of an existing General Term Alimony order “for good cause shown” with written findings setting forth a material change of circumstance that occurred after entry of the alimony judgment and reasons for the extension that are supported by clear and convincing evidence.

c. The court may extend (on a compliant for modification) the duration of an existing Rehabilitative Alimony order upon a showing of “compelling circumstances” in the event that:

i. unforeseen events prevent the recipient from being self-supporting at the end of the term with due consideration to the length of the marriage;

ii. the recipient tried to become self-supporting;

iii. the payor is able to pay without undue burden.

d. The court may modify the amount of a rehabilitative alimony order upon a material change of circumstances within the rehabilitative period upon a showing of a material change of circumstances within the rehabilitative period.

e. When the court makes an initial alimony order, it may set a termination date later than the date when the payor attains full retirement age, provided that the court makes written findings as to the reasons for the deviation.

f. After the court makes an initial alimony order, it may modify the term to a date later than the date the payor attains full retirement, provided that it enters written findings of:

i. a material change of circumstances that occurred after the entry of the alimony judgment; and

ii. reasons for the extension that are supported by clear and convincing evidence.

g. Reimbursement Alimony and Transitional Alimony are not modifiable.

6. Security: The court may order the payor to carry life insurance as security for all forms of alimony.

7. All judgments of alimony entered prior to March 1, 2013 shall be considered to be a General Term Alimony.

8. If a payor wishes to modify an existing order based upon its succeeding the durational limits of the new statute, he or she must comply with the following limitations:

a. If married 5 years or less a modification may be filed on or after March 1, 2013.

b. If married more than 5 years and less than 10 years and a day, a modification may be filed on or after March 1, 2014.

c. If married more than 20 years and less than 20 years and a day a modification may be filed on or after March 1, 2015.

9. Any payor who has reached full retirement age or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification or after March 1, 2012.

Mark Berson Attorney at Law