By Laurie Israel, lawyer/mediator, Brookline, MA
Alimony is a highly-charged word. Discussions of alimony generally get the strongest reactions from both men and women when working out the terms of a divorce. Believe it or not, it’s generally more contentious than custody disputes over children or property division.
Men (the typical gender of the alimony provider) are understandably concerned. They are no longer entitled to receive their wife’s love or services but still must pay. To add insult to injury, sometimes alimony is payable even when the wife had decided to end the marriage. And men are understandably concerned about the negative effect of alimony on the wife’s future motivation to make her own living.
On the other hand, married women have often experienced significant decreased opportunities in their careers. They often have made (by mutual decision with their husband) their top priority to take care of the family, home, children, and husband – to be a homemaker. That’s why some commentators view a marriage as an economic partnership, with the right to alimony payments as essentially a payment of the marital partnership’s income interest.
It is the atypical cases that capture the attention of the media. We hear about lifetime alimony paid to an “able-bodied” spouse after a very short marriage. Or a man who is ill and penniless, but must still pay alimony. On the other side, we hear about cases where a wife whose marriage has ended has no career or work prospects and is unable to support herself adequately because of no or insufficient spousal support. Alimony can be seen as a good thing or a bad thing, depending on whose ox is being gored.
Massachusetts’ former alimony laws. Formerly, Massachusetts had very typical alimony laws. The issue of alimony (as the issue of property division) was very fact-driven and based on notions of equity. Many factors were analyzed, among them, age, opportunity for future acquisition, length of marriage, contribution to marriage (including as a homemaker), conduct, and employability.
Nothing in the prior Massachusetts’ alimony statute defined when alimony should end. As a result, Massachusetts judges did not believe the statute gave them authority to order a termination date at the time an alimony order is set. Another factor leading towards alimony reform was a 2009 case in which quite surprisingly (to most lawyers) the Court denied the request of a 66 year-old retired attorney to terminate alimony. http://ivkdlaw.com/alimony-pierce.asp
As a result, alimony laws tended to be quite vague. They were subject to multiple conflicting rulings by judges even when addressing the same fact patterns. When we advised our clients on alimony issues, we had to rely on an amorphous set of case decisions, anecdotal reports from colleagues on non-reported cases, and various guidelines and pronouncements from lawyer bar associations and law groups. Complicating the alimony landscape in Massachusetts was a 2009 change in an administrative ruling with Guidelines and a computational worksheet setting the child support amounts. In this change, the ceiling of income subject to child support was greatly increased (to provide parity between married parents (where alimony orders were possible) and unmarried parents (where a parent cannot receive alimony from the other parent). As a result, legal advisors no longer knew what the understood guidelines were concerning the amount of alimony to be paid.
The proposals leading to the enactment of “An Act to Reform and Improve Alimony” (hereinafter, “The Alimony Reform Act of 2011”, “The Alimony Reform Act” or the “Act”) were concerned with defining the amount and duration of alimony. Many groups representing male payors were concerned about perceived unfairness of the existing laws and the burdens placed on the payors. There were also concerns about under what circumstances existing alimony orders could be modified under a new alimony regime.
The Alimony Reform Act was passed by the legislature in 2011, with an effective date of March 1, 2012. (Some of the provisions dealing with modifications of existing alimony orders have later and varying effective dates.)
To read the Act, visit http://ivkdlaw.com/Massachusetts-Alimony-Reform-Act.asp
Here are some basic elements of The Alimony Reform Act:
Durational Limits. The duration of alimony under the Act depends on the length of the marriage. It can be no greater than 50% of length of the marriage if the duration was 5 years or less; 60% if 10 years or less, but more than 5 years; 70% if 15 years or less, but more than 10 years; and 80% if 20 years or less but more than 15 years. In a marriage which is 20 or more years, the court has the discretion to order alimony for “an indefinite length of time”, but is not required to. Deviation beyond the time limits can be made if required “in the interests of justice”. These durational parameters are similar to those that have been suggested by guidelines issued by American Academy of Matrimonial Lawyers, and by rulings of Massachusetts judges.
Termination at Remarriage and Cohabitation. Under the Act, alimony ends at remarriage of the recipient (unless the parties specifically agree otherwise). It should be noted that termination upon remarriage is not required by the Internal Revenue Code (to permit deduction of alimony payments), nor was it previously nor is it currently required under Massachusetts laws. Under the partnership view of marriage, divorce creates an income interest in a spouse’s (greater) earnings due to a loss of opportunity (in some cases) on the part of the other spouse. Losing alimony at remarriage or cohabitation then seems to be unfair as a blanket rule. I have often suggested to people negotiating divorces that a modification of the blanket termination rule (such alimony as reduced by 50% upon remarriage) can be a good thing for both parties. It might encourage the remarriage of a spouse whose economic self-preservation would lead to a decision not to remarry. It also has the potential to lighten the load of an alimony payor.
The Act provides for suspension, reduction or termination of alimony upon cohabitation of the recipient spouse, with someone with home sharing a “common household” after at least 3 months of cohabitation. In other words, the amount might be reduced but not eliminated entirely. It can be reinstated upon termination of the recipient’s common household relationship, but if so, it will not extend beyond the termination date of the original order.
Termination at Full Retirement Age. To address the concerns raised in the Pierce case, http://ivkdlaw.com/alimony-pierce.asp , where a retired lawyer was not permitted to stop paying alimony:
Under the Act (and for post-act alimony orders), alimony ends when the payor reaches full retirement age for social security. (Alimony orders “shall terminate” when a person reaches full retirement age.) It is somewhat unclear whether the payments can just stop (and the payee would have to file in court to attempt to get it extended), or whether the payor still needs to file in court to get a court order to end it. The Act also provides that “[t]he payor’s ability to work beyond full retirement age shall not be a reason to extend alimony. What it does not say is what happens if the payor actually does work after retirement age.
The court can deviate from the termination rule on grounds of a material change of circumstances subsequent to the entry of the alimony order. With respect to pre-act alimony orders, the Act itself is deemed a material change of circumstances warranting modification of duration, but such a payor cannot file for modification until March 1, 2013.
Amount of Alimony.
Many of the previous-law factors are included in determining the amount to be paid (and also the duration) of alimony under the Act. These include length of marriage, age of parties, economic and non-economic contribution to the marriage, and the ability of each party to maintain the marital lifestyle. Note the word “each” in that last factor. A recipient should not be entitled to a higher lifestyle than the payor. (This concept is actually embedded in case law under Massachusetts’ previous statute.)
The concept of marital post-divorce partnership is now newly reflected in a new factor termed “lost economic opportunity as a result of the marriage”. Employment and employability, “including employability through reasonable diligence and additional training, if necessary”, harkening back to an earlier form of the Act (H.B. 1785), is now included as a factor.
It is unclear whether alimony is still based on the touchstone rule – need and ability to pay, or whether it is based on a partnership theory. The new statute says that alimony should “generally” not exceed the recipient’s “need” or 30 – 35 percent of the difference between the parties’ gross incomes at the time of the divorce. As a result, it is not entirely clear what happens if 30-35% of the difference is more than “need”. Income subject to child support is deducted from the gross income of a party.
The result when alimony is added to child support under the 2009 Child Support Guidelines often results in less support for the spouse with the children, often an untenable amount of support. There are ways that a court can deviate from child support order under the Guidelines, as well as the alimony order in these cases, but written findings that deviation is necessary is required.
Existing Alimony Orders.
The passage of the Act does not act as material change in circumstances to modify the amount of existing pre-Act orders, but is considered a “change of circumstances” that may entitle an ex-spouse to vary the duration of alimony in an existing order (but only to reduce, not enlarge, duration). There is a phase-in of time in which ex-spouses may file, depending on how long the marriage was. Other than this, the former rule regarding modifications (a “material change of circumstances” is required) in both pre- and post-Act alimony orders seems to apply. This means that a spouse whose situation changes during the time an alimony order is in effect has a chance to change the order.
If a couple had initially agreed that the alimony terms in their separation agreement were to be non-modifiable (this is called a “survived” agreement, and is often done with mutual advantage to each of the spouses), the duration and amount cannot be changed under the Act. The problem is that many spouses agreed to survived alimony provisions before the Act was passed, not knowing that the alimony rules have changed. These people are bound to their previous agreement.
Massachusetts again a beacon. After many years of discussion, Court decisions, theorizing, and uncertainty, Massachusetts has now adopted an alimony system that may work better, has more concrete rules. It may turn out to be fairer to both parties. Only time and experience will tell.
As with its leadership in free public education, abolition of slavery, enactment of same-sex marriage laws and health care reform, in its thoughtful alimony reform, Massachusetts has once again has served as a progressive beacon to the country in its enactment of “An Act to Reform and Improve Alimony”.
© 2012 Laurie Israel.