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Most divorce and many modification actions include determinations of whether alimony shall be awarded and, if so, to whom, in what amount and for what period of time. As the result of very recent legislation, the Alimony Reform Act of 2011, an entirely new set of standards will soon govern a party's rights and obligations with respect to alimony. The divorce attorneys at Fitch Law Partners LLP are highly experienced and well equipped in counseling our clients with respect to the changes in the law, the complexities that must be taken into account, and the best strategy for each particular situation.

Signed into law on September 26, 2011 and scheduled to take effect on March 1, 2012, the Alimony Reform Act of 2011 (Chapter 124 of the Acts of 2011 or M.G.L. c. 208, '' 48 - 55) provides both substantive and procedural guidelines to alimony practices that have never before existed within the Commonwealth. This new legislation, which was years in the making, places the Commonwealth much more in line with the majority of states on issues relating to alimony.

I. TYPES OF ALIMONY

So, what has changed? First, we will soon have a Massachusetts statute that recognizes four different types of alimony, as follows:

  • General term alimony: the periodic payment of support to a spouse who is economically dependent;
  • Rehabilitative alimony: the periodic payment of support to a spouse who is expected to become economically self-sufficient by a predicted time (such as upon reemployment or the completion of job training);
  • Reimbursement alimony: the periodic or one-time payment of support to a spouse after a marriage of not more than 5 years to compensate that spouse for economic or noneconomic contribution to the financial resources of the payor spouse (for example, putting a spouse through school); and
  • Transitional alimony: the periodic or one-time payment of support to a spouse after a marriage of not more than 5 years to transition the recipient to an adjusted lifestyle or location as a result of the divorce.

Determining which type of alimony to apply requires a case-by-case, fact-specific analysis and consideration of several factors, including the length of the parties' marriage, the contribution and roles of each party during the marriage, age and health of the parties, income and employability of the parties, marital lifestyle, lost economic opportunity as a result of the marriage, and "such other factors that the Court may deem relevant and material."

II. DURATIONAL LIMITS, RETIREMENT AND COHABITATION

In addition, Massachusetts will soon recognize durational time limits to alimony. Alimony awards that were once vague and ambiguous or lifetime entitlements will be subject to specific, durational time limits based upon the length of the parties' marriage. Time limits include:

  • If the length of marriage is 5 years or less, general term alimony shall continue for not longer than one-half the number of months of the marriage;
  • If the length of the marriage is 10 years or less, but more than 5 years, general term alimony shall continue for not longer than 60% of the number of months of the marriage;
  • If the length of the marriage is 15 years or less, but more than 10 years, general term alimony shall continue for not longer than 70% of the number of months of the marriage; and
  • If the length of the marriage is 20 years or less, but more than 15 years, general term alimony shall continue for not longer than 80% of the number of months of the marriage.

In marriages that exceed 20 years, Massachusetts courts maintain their discretion to order alimony for an indefinite period of time.

In addition, while the above durational time limits create a new guideline, courts do have discretion to effectively increase the length of the marriage (and thereby the alimony durational term limit), when there is evidence that the parties lived together and shared an economic partnership prior to the marriage. Likewise, courts may consider a marital separation of significant length prior to divorce to effectively decrease the length of the parties' marriage (and thereby the durational term limit). If a court were to award alimony to a spouse in excess of the above time limits, the court is required to find that the deviation is in the interests of justice.

The statute also provides guidelines for time limits of other types of alimony. For example, rehabilitative alimony awards shall not exceed 5 years; transitional alimony cannot extend beyond 3 years from the date of the parties' divorce. Again, in some instances, the court may deviate from these guidelines. For example, a court can consider extending rehabilitative alimony beyond 5 years if a party can demonstrate "compelling circumstances." Such compelling circumstances include consideration of the length of the parties' marriage; unforeseen events; the recipient-spouse's efforts to become self-supporting and the payor/supporting spouse's continuing ability to pay.

In addition to the durational time limits applicable to general term alimony awards (as set forth above), the statute also provides that general term alimony awards shall terminate upon remarriage of the recipient, death of either spouse or upon the payor attaining full retirement age. Full retirement age is defined as the payor's normal retirement age when he/she is eligible to receive full Social Security retirement benefits. Even if a payor spouse has the ability to work beyond retirement age, that alone shall not be a reason to extend alimony. Courts retain their discretion, however, to (i) set a different alimony termination date (other than retirement age) when entering an initial court order; or (ii) extend an existing alimony award beyond retirement age provided the recipient spouse can demonstrate a material change of circumstances occurred, which must be supported by clear and convincing evidence, after the entry of the alimony judgment. In either case, courts are required to enter written findings of the reasons for deviation.

While remarriage of the recipient spouse will terminate both general term alimony and rehabilitative alimony, it will not cause a termination of reimbursement or transitional alimony.

Significantly, the Act provides for the suspension, reduction or termination of alimony upon a showing that the recipient spouse is cohabitating with another (or sharing a common household) for at least three months. It is the payor/supporting spouse's burden to demonstrate that the recipient spouse has maintained a common household with another person for a continuous period of at least three months.

III. AMOUNT OF ALIMONY

The new law also includes guidelines for the amount of alimony awards going forward. Generally speaking, alimony awards (except for reimbursement alimony or deviations of other forms of alimony) should not exceed the recipient's need or 30 to 35% of the difference between the parties' gross incomes at the time the order issues. Notably, income is defined to exclude (i) capital gain and dividend/interest income that derives from assets equitably divided in the divorce; and (ii) gross income that has been considered for setting a child support order. Again, in the case of general term alimony or rehabilitative alimony, the court retains discretion to deviate from this guideline with written findings that deviation is necessary. Moreover, courts may attribute income to either party who is unemployed or underemployed. If a payor spouse remarries, additional income and assets of the payor's spouse shall not be considered in adjusting a prior alimony award in a modification action.

IV. MODIFICATION OF EXISTING ALIMONY

As we look forward to the implementation of the Alimony Reform Act, many payors and recipients of alimony are left wondering how the new guidelines will impact their existing alimony orders. The new statute anticipates this and provides that the enactment of the Act itself constitutes a material change of circumstances warranting modification for existing alimony awards (now termed "general term alimony") that exceed the durational time limits. The Act sets forth the following schedule for alimony modification actions brought because the existing judgment exceeds the durational limits:

  • Payors who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013;
  • Payors who were married to the alimony recipient 10 years or less, but more than 5 years, may file a modification action on or after March 1, 2014;
  • Payors who were married to the alimony recipient 15 years or less, but more than 10 years, may file a modification action on or after March 1, 2015; and
  • Payors who were married to the alimony recipient 20 years or less, but more than 15 years, may file a modification action on or after September 1, 2015.

The Act provides that, without regard to the above schedule, any payor/supporting spouse 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 on or after March 1, 2013.

Going forward, the Act provides that both reimbursement and transitional alimony awards are not modifiable.

The Alimony Reform Act of 2011 provides comprehensive guidelines and, in some instances, mandates governing alimony practices within the Commonwealth. Alimony practices will continue to evolve with the implementation of the Act, as Massachusetts courts begin applying and interpreting the Act going forward. On balance, it is expected that the Alimony Reform Act will bring more consistency and predictability to alimony issues, such that it will serve as a road map to affected individuals, clients and legal practitioners. Any person who has questions about the effects of the new law should consult with an experienced lawyer.

Contact: Steven E. Gurdin | Barbara L. Drury | Kristine Ann Cummings | Jeffrey A. Soilson

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