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?