Below we have provided answers to many of the common questions that we are asked about Alimony. If you are going to court, there are no guarantees as to how a Judge might rule becuase there is quite a bit of discretion as to how the law can be applied. If you resolve your case through settlment, Collaborative Divorce, or Mediation, you have the right to deviate based on agreements that take into account your particular circumstances. In any event it is important that you both know the basics of the law relating to alimony determination in Massachusetts to help you determine if you have a potential alimony case and what might be the range of reasonable orders.
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so.
Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which becomes effective on March 1, 2012. Once effective, the act provides for multiple types of alimony, and for maximum amounts and duration of alimony.
Pursuant to the new law the types of Alimony are defined as follows:
General Term Alimony: periodic payment of support to a recipient who is economically dependent.
Rehabilitative Alimony: periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment, completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.
Reimbursement Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of compensating the recipient for economic or noneconomic contributions to the financial resources of the payor spouse, such as enabling the payor spouse to complete and education or job training.
Transitional Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce.
The new law also defines the maximum amount of Alimony:
Except for Reimbursement Alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.
Below we have provided more information about this new law and the resolution of alimony disputes in Massachusetts.
To view the new formula and calculate your Alimony with a printable Worksheet click here. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
SAME-SEX DIVORCE TIP: There are two differences in how alimony may be calculated in a same-sex divorce case. The first difference is that the Section 34 Factors may not be applied the same way in a same-sex divorce case because same-sex marriage has only been available as a right since 2004. The "length of marriage" factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.
The second difference in how alimony may be calculated relates to a taxation issue, which is different for same-sex marriages. Currently DOMA (the "defense of marriage act") prevents the IRS from treating same-sex marriages as marriages for tax purposes. Traditional Alimony is included as taxable income to the Recipient and tax deductible to the Payor, but in same-sex divorces the parties are not recognized as married and are therefore denied this tax benefit. As long as DOMA is applied by the IRS, alimony Payors from same-sex marriages will not receive the tax benefit of deducting alimony. There is an argument that this should affect the calculation of what is a fair alimony payment. You should consult an attorney if you have questions about the Section 34 factors or how these factors can be affected by issues unique to same-sex marriages. Click here for more information about gay & lesbian divorce in Massachusetts.
Same-Sex Massachusetts Divorce Website
The new law also limits the duration of General Term Alimony:
General Term Alimony Ends Upon:
Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material change in circumstances that warrants a change in the order.
To view the duration formula and calculate your Alimony with a printable Worksheet click here.
Under the new law, income shall be defined as set forth in the Massachusetts Child Support Guidelines. However, two types of income are specifically excluded:
(1) Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and (2) Gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts Child Support Guidelines or otherwise; provided that nothing in this section shall limit the court's discretion to cast a presumptive child support order under the Child Support Guidelines in terms of unallocated or undifferentiated alimony and child support.
Income can include income not recognized or taxed by the IRS and if you are unsure of what should or should not be included you should consult with your attorney.
Under the new law, income from a second job or overtime work shall be presumed immaterial to alimony modification if:
(1) A party works more than a single full-time equivalent position; and
(2) The second job or overtime commenced after entry of the initial order.
Alimony is income to the Recipient and should be included as taxable income on the Recipients state and federal income tax returns. Alimony is tax deductible to the Payor, and sometimes even payments made on behalf of an ex-spouse, such as health insurance payments may also be tax deductible. You should consult with your attorney to discuss the specific facts of your case if you think you might be making other payments which could be tax deductible as well.
Under the old law, alimony did not necessarily end upon retirement. Although retirement does typically represent a material and significant change in circumstances, warranting a Modification, whether or not alimony will end or be reduced was still dependent on all of the statutory factors. In a decision published on November 9, 2009, the Massachusetts Supreme Judicial Court rejected a Husband's argument that his alimony should end upon retirement. Rudolph F. Pierce vs. Carnecie G. Pierce, SJC - 10381, Nov. 9, 2009.
This was one of the major changes under the new law: Alimony presumptively ends, upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416. The presumption can be rebutted but it requires clear and convincing evidence.
Pursuant to The Alimony Reform Act of 2011, General Term Alimony ends upon the full retirement age of the payor, as defined by Social Security (United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416).