When I first started practicing family law in Massachusetts, it seemed as if alimony was becoming an endangered species: other than traditional-role, long-term marriages, you rarely saw it. This was because under Massachusetts law at the time, the Court could not order alimony for a definite period of time after a trial. The Court was only empowered to order alimony for an indefinite period of time, leaving it up to the parties and their attorneys to bring a subsequent Complaint for Modification once the reason for the alimony had ended, or the paying spouse became disabled, unemployed, under-employed, or had reached retirement age. The alimony statute in effect at that time, M.G.L. chapter 208, sec. 34, did not contemplate limited duration orders, or provide any guidance as to calculation of the amount, leaving everything in the judge's discretion after considering the enumerated factors, such as age, length of marriage, contribution, etc. Judges were reluctant to order alimony in relatively short-term or shorter-term marriages, as it could result in a lifetime obligation.
Most alimony judgments were agreed-upon after negotiation. The parties were free to do what the Court could not, that is: agree to a limited duration of alimony, which provided a degree of security, and omitted the need to return to Court in the future, saving the parties time and attorneys fees. This eliminated the uncertainty of the future, and saved people from having to litigate issues such as whether their retirement was "in good faith". The parties that could agree did not have to spend untold thousands of dollars "rolling the dice"; the parties that could not agree ended up litigating alimony amounts, duration, whether a material change in circumstances has occurred, and whether alimony obligations should end at retirement. In some cases, the litigation and bringing of Modification Complaints went on for decades.
In 2011, Massachusetts finally joined the majority of states in passing the Alimony Reform Act, and setting limited duration alimony based on the the length of marriage. Where there is a substantial difference in income, and no agreement to the contrary, the Court may order general alimony as follows:
a. Where the length of marriage is less than five (5) years, alimony may last for not longer than one-half the number of months of the marriage.
b. Where the length of marriage is ten (10) years or less, but more than five, alimony may last for not longer than sixty (60%) percent of the number of months of the marriage.
c. A 10-15 year marriage is limited to seventy (70%) percent of the number of months married.
d. A 15-20 year marriage is limited to eighty (80%) percent of the number of months married.
e. A marriage of longer than twenty (20) years allows the court to do what it always did in the past, and order an indefinite term of alimony.
Unlike before, there is now a presumption that alimony terminates upon the payor reaching full retirement age, and the ability to keep working after that age is not, by itself, grounds for continuing alimony.
"Length of marriage" is calculated from the date of marriage until the date that one of the parties is served with a Divorce Complaint and Summons.
The new law also changed existing law by allowing alimony to be terminated if the recipient spouse is cohabitating with another person for three months or longer. The delineation of factors is contained in M.G.L. C.208, sec.49(d).
Many issues continue to be litigated in interpreting this relatively new act, which will be discussed in later blogs on this topic. One case which came down in 2014, Holmes v. Holmes
, 467 Mass. 653 (2014), holds that the clock doesn't start running on the duration of alimony payments until the final judgment of divorce enters, and does not include the period of time when temporary support was paid while the divorce proceedings were pending. This could easily add one or two more years of payments in cases which do not settle, and should be taken into account when negotiating settlement.
In addition to the changes to General Term alimony outlined above, the 2011 Alimony Reform Act also created or codified several limited situation forms of alimony, as well as created standards for the calculation of alimony. I will deal with these issues in Part II.
All legal advice is fact-specific, and you should never rely solely on an article you have read in making major life decisions. If you have any questions as to how this new law pertains to your personal situation, feel free to contact me directly, or through my web site at www.lawyervisconti.com.