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Alimony Reform

2011 Alimony Reform

Please feel free to download the PDF regarding the 2011 Allimony Reform legislation.

Current alimony scheme

Alimony determination is based on need and ability to pay.

Courts consider the following factors set forth in M.G.L. c. 208 § 34:

  • Length of marriage
  • Ages and health of the respective parties
  • Station and lifestyle of the respective parties
  • Amount and sources of income of the respective parties
  • Employability of the respective parties

Courts cannot order term alimony:

  • Parties can agree to short term
  • Court can only order lifetime alimony

New legislation

  • Court is able to limit term of alimony based on the length of the marriage
  • Alimony ends at cohabitation of recipient spouse
  • Limit on amount of alimony
    • Should not exceed 30-35% of the difference between the parties’ gross income
  • Establishes four distinct types of alimony

General term alimony

The length of marriage will determine the length of alimony:

# of years

Alimony timeframe

0-5 Years

50% of number of months of marriage

6-10 Years

60% of number of months of marriage

11-15 Years

70% of number of months of marriage

16-20 Years

80% of number of months of marriage

20+ Years

Court may order indefinite alimony

Alimony payments would be terminated in the event of the death of either party, remarriage of payee, or reaching the full retirement age. The court does have the ability to elect to continue alimony payments if the payee can show a continuing need for such payments.

Other types of alimony

Rehabilitative

  • Helps a recipient spouse who is expected to become self-supporting in a specific time
  • Should not last more than five years

Reimbursement

  • Compensates a recipient spouse for economic or noneconomic contributions to the financial resources of the payor spouse, e.g. education costs
  • Only available if marriage lasted less than five years

Transitional

  • Helps recipient adjust to a change in lifestyle or location after the divorce
  • Only available if marriage lasted less than five years

Modification of existing awards

The existence of the new law is a material and substantial change in circumstances for existing judgments that exceed new durational limits and the statute does provide for a timeline and conditions for filing a complaint:

  • Parties must show a material change in circumstance to modify the amount of the award
  • Cannot change an existing award if alimony provision survived the divorce as an independent contract

Modification of future alimony

Under the new legislation, only General Term Alimony and Rehabilitative Alimony are modifiable.

To Modify General Term Alimony:

  • Either party must show a substantial and material change in circumstances
  • If alimony was suspended because of cohabitation of recipient that has terminated, recipient can move to reinstate alimony, though it will not continue beyond original termination date

Modification of Rehabilitative Alimony Award:

  • Recipient may seek to extend term limit on a showing that unforeseen events prevented the recipient from being self-supporting despite good faith efforts

Child support modifications

  • To prevent double dipping, gross income that is included in setting a child support order is excluded from an income calculation in determining child support
  • Child support guidelines only apply to the first $250,000 of income, so any income over that threshold is subject to alimony
  • Parties should prepare a tax analysis considering net gain to the parties
  • Termination of alimony cannot be based on a child contingency. If it is, it will be treated as child support and subject to tax consequences by the IRS, including recapture of monies incorrectly termed as alimony
  • Parties can also negotiate that rehabilitative alimony will begin at the emancipation of the youngest child

What to look for

Here are some good questions to ask in order to help navigate through the new legislation:

  • Will there be an increase in alimony length if the divorce is not timely filed?
  • When should a client draft a pre-nuptial agreement or post-nuptial agreement?
  • Would modification be beneficial? What are potential risks for modification?
  • When is a client eligible for modification?