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Highest Court Rules that Temporary Alimony is "Separate and Distinct" from General Term Alimony

The enactment of the Alimony Reform Act of 2011, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades.  The sweeping new law effectively ended the reign of lifetime alimony in Massachusetts, tying the length of time that a former spouse could be ordered to pay "general term" alimony (traditional alimony paid to an economically dependent spouse) to the length of the marriage in marriages of 20 years or less, and to hard limits of three years for "transitional alimony" (paid to help a spouse adjust to the change in lifestyle or location after divorce) and five years for "rehabilitative alimony" (intended to assist a recipient spouse in the short term who is expected to become self-supporting by a specific time).  The Act further provides for the termination of alimony upon the payor reaching full retirement age or the recipient's remarriage.

General Term Alimony, defined as "the periodic payment of support to a recipient spouse who is economically dependent" may be ordered for a specific number of months based upon the length of the marriage.  The "length of the marriage" is defined by the Act as the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support; however, a court may increase the length of the marriage if there is evidence that the parties' economic marital partnership began during their cohabitation period prior to the marriage.  Unless a judge makes specific written findings to deviate from the time limits set forth under the law, if the length of the marriage is twenty years or less, the law provides that general term alimony shall terminate no later than a date certain in accordance with specific durational limits.  For marriages of less than five years, general term alimony may be ordered for no longer than fifty percent (50%) of the number of months of the marriage.  For marriages longer than five years but less than ten years, alimony may be ordered for up to sixty percent (60%) of the number of months of the marriage; this number increases to seventy percent (70%) of the number of months of the marriage for marriages between ten and fifteen years and eighty percent (80%) of the number of months of the marriage for marriages between fifteen and twenty years long.  The court may order alimony for an indefinite length of time for marriages that reached or exceeded twenty years in length.

While the durational limits set forth under the Act are clear, judges, attorneys and litigants alike struggled over the issue of whether  alimony payments made to a spouse under a temporary support order during the pendency of the divorce proceedings must be included in calculating the maximum presumptive duration of general term alimony.  However, our state's highest court conclusively decided the issue earlier this month, ruling that "temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony."  In the case of Elaine M. Holmes vs. Kenneth M. Holmes, the husband was ordered by the trial court judge to pay alimony for twelve years from the date of divorce, which was calculated by the judge as the maximum presumptive duration of general term alimony under the Act for a marriage of fifteen years.  Although the husband had paid temporary alimony for approximately two and one-half years prior to the divorce, the Judge did not subtract this time period from the maximum presumptive duration of general term alimony.  On appeal, the husband argued that the term of alimony should be calculated from the service of the divorce complaint rather than the judgment of divorce, and that the twelve years of alimony should begin in June, 2006, when he was first ordered to pay temporary alimony, not on the date of the judgment of divorce in October 2008.  The Supreme Judicial Court denied the husband's appeal, ruling that alimony paid under a temporary support order during the pendency of a divorce proceeding is not included in calculating the maximum presumptive duration of general term alimony.  However, the Court noted that "where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony."  Because the Court concluded that there was no suggestion that the wife delayed final resolution of the parties' divorce case, the husband was ordered to pay twelve years of alimony commencing on the date of divorce.

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