On March 1, 2012 an entirely new law on alimony went into effect in Massachusetts. Not only does this law change everything about alimony for people getting divorced now and in the future, it will, in the near future, change everything for those who are already paying or receiving alimony.
What is the deal?
In general terms, the new law sets up various categories of alimony. Each of these categories has rules as to how and when they apply and each category has time limits for how long alimony can last. Another important feature of the new law is that alimony ends at the time of the payor's (the person paying the alimony) retirmenent. Cohabitation, living with someone without getting married, now suspends, reduces or terminates alimony. Lastly, the effect of this new law on old alimony cases is phased in over time.
GENERAL TERM ALIMONY AND DURATIONAL LIMITS
Alimony is now defined as periodic payment of support to an ex-spouse who needs the money to keep his or her lifestyle at or near the level of the other ex-spouse. General term alimony ends upon the remarriage of payee (the person getting the alimony) or upon the death of either ex-spouse. Yes, believe it or not, until now alimony in Massachusetts could, in some cases, continue beyond the death of the payor and become an obligation of the payor's estate! Except in unusual cases, the amount of alimony should not exceed the payee's "need" or 30-35% of the difference between the parties' gross incomes.
The clock is ticking.
If, at the time of divorce, the couple was married 5 years or less, alimony will last a maximum of one-half the months the marriage lasted.
If the marriage lasted more than 5 years but less than 10 years, alimomy will last a maximum of 60% of the number of months of the marriage.
If the marriage lasted more than 10 years but less than 15 years, alimomy will last a maximum of 70% of the number of months of the marriage.
If the marriage lasted more than 15 years but less than 20 years, alimomy will last a maximum of 80% of the number of months of the marriage.
If the marriage lasted more than 20 years then how long alimony lasts is up to the judge. However, the other restrictions, retirement of the payor, death of either party, remarriage of the payee, or cohabitation still apply.
The length of a marriage is defined as the number of months from the legal date of marriage to the date of service of a complaint for divorce, or other divorce like proceedings, that has been filed with a court. An important point is that the judge can "increase" the length of the marriage if the economic partnership began during a period of cohabitation before the legal marriage.
Cohabitation generally means sharing what is considered to be the primary residence of both parties. The judge can also look at:
What the parties have said to each other and others about living together;
The economic relationship between the parties (Is money being pooled? Is one party dependent on the other?);
Things both have done to further or solidify an ongoing life together;
Economic and non-economic benefits to one or both parties from the relationship;
The fact that the parties appear as a couple to others.
As mentioned above, general term alimony ends when the payor reaches the usual or ordinary retirement age for full social security old age retirement benefits. It does not matter that the payor decides to keep working past retirement age. There are two exceptions.
Not so fast!
At the time of the original divorce judgment, the judge can, for "good cause shown" and documented in written finding, set an alinmony termination date different from the payor's retirement. Judges, who usually have way too much work to do, do not like to do written findings. Also, those written findings have to demonstrate good cause. That means a much better reason than, gee I would like to have alimony end sooner. The bottom line is that general term alimony is going to end on the payor's retirement unless the party looking for something different can convince a reluctant and skeptical judge that there is a very unusual and very good reason to do things differently in that particular case. Not easy.
Also, in an alimony modification, the judge can change the alimony end date for "good cause shown" based upon a "material change of circumstances" proven by "clear and convincing evidence" as shown in written findings. Even less easy.
This is alimony paid to an ex-spouse who is expected to become economically self-sufficient by a predicted time that is tied a future event. Examples are completing job training, graduating from an educational program, or receiving lump sum payment from their former spouse as part of the divorce. Rehabilitative alimony ends upon the remarriage of the payee, the occurance of the named event, or the death of either former spouse. This kind of alimony is supposed to last not more than 5 years.
There is always an out.
However, it can run longer if: (1) unforeseen events prevent the payee from becoming self-sufficient, or (2) the judge rules that the payee tried to become self-sufficient and the payor has the ability to keep paying without suffering an undue burden.
If the marriage lasted 5 years or less, the judge can chose to give money, either in a lump sum or periodic payments, to compensate one spouse for his or her economic or non-economic contribution to the financial resources of the other spouse. The classic example is the doctor who's loyal wife raised the kids and worked three jobs to get him through school only to be ditched in favor of a swimsuit model. This type of alimony may not be modified. Also, the income guidelines for alimony do not apply to reimbursement alimony.
If the marriage lasted 5 years or less, the judge has the option of giving the payee a lump sum or period payments, for not more than 3 years, for the purpose of transitioning the payee to an adjusted lifestyle or location as a result of the divorce. This form of alimony is best described as get yourself set up money.
A fresh start!
Transitional alimony cannot be modified, extended or replaced by another form of alimony. Transitional alimony, if in the form of periodic payments, ends upon the death of the payee or the date (not more than 3 years after divorce) set by the judge in the divorce judgment.
CHILD SUPPORT AND ALIMONY
The double dip or the double whammy?
The definition of income for alimony purposes is the same and that for child support. The definition of income for child support in Massachusetts is, basically, everything. However, there are two very important exceptions for alimony purposes. One, capital gain income, dividend income, and interest income from assets that were divided between the parties as part of the divorce is excluded from consideration in setting alimony. Two, and this is the big one, income that has been used by the judge to calculate child support may not be used again in setting alimony. In other words, unless you are making some very serious money, if you are paying Massachusetts guidelines child support, you will not be paying alimony.
If alimony is ordered to start after the end of a child support order, that alimony is limited to the time periods applicable to rehabilitative alimony. If both child support and alimony is ordered, the combined order shall not exceed the longer of the alimony duration applicable at the time of divorce or rehabilitative alimony commencing at the time child support ends.
If the payor remarries, the income and assets of the new spouse shall not be considered in any attempt to modify alimony.
Income from a second job or overtime shall not be considered in any attempt to modify alimony if (1) the party works more than the hours of a single full time job and (2) the second job or overtime commenced after the original divorce judgment.
Is it time for a change?
The fact of this new law is not grounds for going back to court to change or end alimony. However, there is one important exception. If the alimony order is question already exceeds the time limits for general term alimony in the new law, then you can go back to court on the following schedule:
If you were married 5 years or less, you can file a complaint for modification on or after March 1, 2013;
If you were married more than 5 years but less than 10, you can file a complaint for modification on or after March 1, 2014;
If you were married more than 10 years but less than 15, you can file a complaint for modification on or after March 1, 2015;
If you were married more than 15 years but less than 20, you can file a complaint for modification on or after March 1, 2016;
If you were married 20 or more years, you are going to have to come up with another reason that alimony should be changed.
The big exception to the above is that any payor who is eligible for full social security old age retirmenent, or will become eligible within 3 years of the efective date of the new law (March 1, 2012) can file a complaint for modification on or after March 1, 2013.
If, at the time of the divorce, the parties agreed that their judgment was not modifiable or that the terms regarding alimony would survive the judgment as an independent contract, you are stuck except in the most extreme cases.
The information herein is a brief discussion in general terms of some of the more important concepts related to divorce. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
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