By Tracy Fischer
October 2011 – read the entire Alimony Reform Act (PDF)
The Massachusetts Alimony Reform Act of 2011 was just passed into law amending Massachusetts General Law chapter 208 section 34, adding section 48, clarifying the nature and duration of alimony. The law will become effective in March of 2012
First, four different categories of alimony are identified and defined: General term alimony is simply a periodic payment of support to one spouse to another. Rehabilitative, Reimbursement and Transitional alimony are all defined as periodic or one time payments, considered after a marriage of five years or less. They are all seen as a means to an end and for the particular purpose of enabling a spouse a short period of time to become independent.
For marriages of five years or less the following types of alimony can be applied:
- Rehabilitative alimony is to support a recipient spouse who is expected to become self sufficient within a specific time frame, such as after job training or re-employment.
- Reimbursement alimony is to compensate a spouse for assistance in enabling another spouse to obtain a degree or special employment training.
- Transitional alimony is for the purpose of enabling a spouse to transition to a new lifestyle or location due to the divorce.
General term alimony applies to marriages in excess of five years to a recipient spouse who is economically dependent.
DURATION: One of the most significant changes comes with the clarification of the durational limits of alimony, tying the length of alimony with the length of a marriage. In the past, Probate Court judges had broad discretion in terms of how long an alimony order could last and could not limit the time in advance. If the marriage is 5 years or less, alimony shall continue for not more than 50% of the length of the marriage; 5-10 years- not more than 60% of the length of the marriage; 10-15 years-70% of the length of the marriage; 15-20 years – 80% of the length of the marriage. For marriages of 20 years and longer, the court retains the discretion to order alimony for an indefinite period of time. The court still has discretion to deviate from these guidelines for General Term and Rehabilitative Alimony.
This law clarifies that alimony may be reduced or suspended in the event a recipient spouse maintains a common household with another. The new law identifies the evidence a court may look at to determine if there is a common household. If the alimony is suspended, reduced or terminated it may be reinstated once the common household ends but it will not extend beyond the termination date of the original order.
General term alimony may be modified in duration or amount where there is a material change in circumstance. Rehabilitative alimony may be extended beyond the set term and the amount may be modified based upon a material change of circumstance within the rehabilitative period. Reimbursement and Transitional alimony are not modifiable or able to be replaced by another form of alimony.
The law incorporates a schedule of when a person with an alimony obligation can seek to modify the order in accordance with the new guidelines. The shorter the marriage the more quickly the matter can be brought to court, the earliest being a marriage of 5 years or less, can file a modification after March 1, 2014.
For the first time clear direction is given regarding the retirement of the paying spouse. General term alimony ends upon the paying spouse reaching full retirement age, however the court may grant extensions based upon specific criteria such as a material change in circumstance. Retirement age is determined by the U.S. Old Age, Survivors, and Disability Insurance program, which is currently 66 years old.
Rehabilitative alimony terminates upon the death of either spouse, a specific date, or remarriage of the recipient spouse. Reimbursement and Transitional alimony, both terminate upon the death of the recipient.
The amount of alimony is not to be greater than 30%-35% of the difference between the parties gross incomes. Income is defined for alimony as the same as under the Massachusetts Child Support Guidelines. When there is a child support order, only that income that was not included in determining the child support will be used to calculate alimony. The new law clearly states that income may be attributed to an unemployed or underemployed party. In addition, the income of a payors second spouse will not be considered in a modification.
The main points of the Alimony Reform Law of 2011, as outlined above, provide much clearer direction for parties, lawyers and mediators. The stricter guidelines may make recipients of alimony feel that they have been disadvantaged. The result of the law will be to provide the recipient and paying spouse the ability to plan for the future. It affords the recipient the ability to make every attempt to become independent over the course of the alimony term. In longer marriages, the court still maintains the discretion to deviate from the guidelines that it has always had.
These new guidelines specified in the law will certainly benefit those who choose to mediate their divorces. Divorcing couples now will now have many specific factors to consider. There is clearly still room for a court’s discretion and situations with special circumstances, all of which will enable divorcing couples to come to fair agreements about alimony through mediation. The cloudy area of what “a judge might do” is now a little clearer.