The Alimony Reform Act of 2011 was signed by Massachusetts Governor Deval Patrick on September 26, 2011. The new law went into effect in Massachusetts on March 1, 2012.
What Does the New Alimony Law Apply to and Where is it?
This law applies to Petitions for Divorce or Complaints for Divorces or Complaints for Separate Support actions filed in Massachusetts.
The bill is Chapter 124 in the year 2011, Sections 1-6 called an “Act Reforming Alimony in the Commonwealth” of Massachusetts. The new law is codified under Massachusetts General Laws, Chapter 208, Sections 48-55.*
What Are Some of the Changes ?
The Alimony Reform Act of 2011 changes the law in Massachusetts by adding limits to the time alimony can be paid, adds cohabitation language, adds an end date for alimony such as retirement and cohabitation and creates new types of alimony.
What Are Some Types of Alimony?
Alimony is no longer always be unlimited. New definitions include “Rehabilitative Alimony, “Reimbursement Alimony,” “Transitional Alimony” and “General Term Alimony.” See M.G.L. Chapter 208, Section 48.
“Rehabilitative alimony” is moneys to be paid by one spouse (the “payor” spouse) to help their other spouse who expects to be able to support himself or herself at some time in the future. That spouse who receives alimony could learn a new skill so he or she can get new employment (called “reemployment” in the statute) and be self sufficient within a period of time.
“Reimbursement alimony” is moneys to be paid from the payor spouse to a spouse who contributed to the “financial resources” of the payor spouse such as to “complete an education or job training.” It could be a contribution that was economic or non-economic.
“Transitional alimony” is moneys to be paid from the payor spouse to help the other spouse to adjust to a lifestyle or a new location due to the divorce.
Reimbursement and Transitional alimony only applies to a marriage of five years or less. Both can be a one time payment or periodic payments. Also, Rehabilitative and Transitional alimony are not modifiable.
The other type of alimony is called “General Term Alimony”. To understand general term alimony, one has to look at the definitions under the new law.
What are some of the New Alimony Law Definitions?
New definitions are stated in Chapter 208, Section 48:
“Alimony” is “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.”
“General Term Alimony” is “the periodic payment of support to a recipient spouse who is economically dependent.”
“Full retirement age” is the payor’s normal retirement age for social security, under the “United States Old Age, Survivors, and Disability Insurance Program.” (See 42 U.S.C. 416) It does not include early retirement. Right now the full retirement age is 66 or 67 years of age depending on ones year of birth. (Up to the year of birth in 1959, the retirement age is 66. From the year of birth in 1960 and thereafter it is 67. ) To determine ones age for retirement, please visit: http://www.socialsecurity.gov/pubs/retirechart.htm.
“Length of Marriage” is changed to mean from the date of the legal marriage to the date of service of the Complaint or Petition for Divorce or Complaint for Separate Support.
Also, under the definition of length of marriage, it states that cohabitation before the marriage could be added to the length “if there is evidence that the economic marital partnership began during their cohabitation period prior to the marriage.” (See M.G.L. Chapter 208, Section 48.)
The factors to determine the amount and length of payment of alimony are still generally the same as the current law under M.G.L. Chapter 208, Section 34, except conduct has been taken out of the factors for alimony, but not property division due to a divorce.
The questions to ask based on factors for alimony stated in M.G.L. Chapter 208, Section 53, include:
-What is the length of the marriage?
-What are the parties ages?
-What is the health of each spouse?
-What is each spouses’ income?
-What is the employment of each spouse?
-What is the employability of each spouse?
-What is the economic and non-economic contribution that each spouse gave to the marriage?
-What was the couples lifestyle during the marriage?
-What is each spouses’ ability to maintain the marital lifestyle
after the divorce?
-What economic opportunity was lost due to the divorce? and<
-What are other relevant and material factors?
How Much Needs to Be Paid in alimony?
Generally the alimony that needs to be paid is 30-35% “of the difference between the parties’ gross incomes established at the time of the order being issued.” See M.G.L. Chapter 208, Section 53 (a). This does not apply to reimbursement alimony or if there is a deviation. (See M.G.L. Chapter 208, Section 53 (b).
What is excluded from the order are capital gains, dividend and interest that the parties obtained from assets they divided and gross income from a child support order. To figure out what is “income”, please visit the definition of income under the Massachusetts Child Support Guidelines which are found at: http://www.mass.gov/courts/formsandguidelines/csg2006.html.
What are Grounds for Deviation from the for General Term Alimony?
The court may deviate from the time and amount limits for general term and rehabilitative alimony under M.G.L. Chapter 208, Section 52 (e).
The grounds for deviating from general term alimony and rehabilitative alimony as stated in the M.G. L. 208, Chapter 52(e) are as follows:
(1) advanced age; chronic illness; or unusual health circumstances of either party;
(2) tax considerations applicable to the parties;
(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
(6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
(7) a party’s inability to provide for that parties own support by reason of physical or mental abuse by the payor;
(8) a party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance or employment opportunity; and
(9) upon written findings, any other factor that the court deems relevant and material.”
How Long Does the Payor Have to Pay Alimony?
How long the payor spouse has to pay alimony depends on the type of alimony, the length of the marriage and other factors, including whether there is cohabitation and whether there is a deviation.
“Rehabilitative alimony ends after five years or less, remarriage, a specific event or death of either spouse. (See M.G.L. Chapter 208, Section 50.) It could be extended upon a showing of compelling circumstances. (See M.G.L. Chapter 208, Section 50(b)).
“Reimbursement alimony” ends after a date certain or the death of the recipient. This type of alimony is for a marriage of five years or less. The income guidelines do not apply. See M.G.L. Chapter 208, Section 51 (a-c).
“Transitional alimony” is not paid more than three years from the date of the divorce. It ends upon a date certain or the death of the recipient spouse. This type of alimony is also for a marriage of five years or less. It can not be modified. (See M.G.L. Chapter 208, Section 52 (a-b).
“General term alimony” is paid under M.G.L. Chapter 208, Section 49 (b) (1-4), as follows:
-If a marriage is five years or less, general term alimony is not longer than one-half the number of months of the marriage (or a maximum of two and a half years).
-If a marriage is 10 years or less, but more than five years, general term is not longer than 60% of the number of months of the marriage or
-If a marriage is 15 years or less, but more than 10 years, general term alimony is not longer than 70% of the number of the months of the marriage or
-If a marriage is 20 years or less, but more than 15 years, general term alimony is not longer than 80% of the number of months of the marriage.
Therefore, one must count the months of the marriage to determine how long general term alimony would be, then multiply it by the percentage listed.
Generally, general term alimony ends when the spouse who receives the support remarries or the death of either spouse or upon full retirement age at 66 or 67, depending on the date of birth of the spouse who is paying the alimony. (See M.G.L. Chapter 208, Section 49 (f)). The alimony to be paid can be changed upon a material change of circumstances.
If the spouse who receives alimony cohabitates by maintaining a “common household” for a continuous period of at least 3 months, then alimony can be suspended, reduced or terminated. See M.G.L. Chapter 208, Section 49 (d). There are factors for the court to consider what is a common household under M.G.L. Chapter 208, Section 49 (d) (1)(I-vi). It can be reinstated if the recipient spouse moves out, but it can’t extend over the termination date in the original order.
The cohabitation and retirement clauses do not apply to Rehabilitative, Reimbursement and Transitional Alimony, but do apply to General term alimony.
What is Not Considered in the New Law?
If a spouse that pays the alimony remarries, the new spouses’ income and assets are not considered. See M.G.L. Chapter 208, Section 54 (a). Also, second jobs and overtime work is considered immaterial for payor spouses who are working a full-time job and the second job or over-time is after the initial order of a court. See M.G.L. Chapter 208, Section 54 (b).
What Can’t be Changed Under the New Law?
If one has a current court judgment that the parties agreed that “alimony survives the judgment” or if the parties agreed that alimony can not be modified, it can not be changed due to this new law. (See Section 4, under the Chapter 124 of the Act Reforming Alimony in the Commonwealth.)
Also, Rehabilitative alimony and Transitional alimony can’t be changed.
Does One Need Security if Paying Alimony?
Some security may be required by the court such as life insurance or another type of security during the time one has to pay alimony.
When Can a Payor Spouse File a Complaint for Modification to Stop Payment of Alimony?
Since the new law has restrictions on when the alimony can be modified, one can not file an action in court immediately to reduce their alimony. (See Section 5 under the Chapter 124 of the Act Reforming Alimony in the Commonwealth.)
There are certain dates when one can go into court to try to change or modify the current alimony order and it depends on the length of marriage or retirement age or if there is cohabitation for a period of time. The dates one can go in to court are as follows under Section 5 of the Chapter 124 of the Act Reforming Alimony in the Commonwealth:
-on or after March 1, 2013, if a former spouse who is receiving alimony is cohabitating with another under the definition in the new law or
-on or after March 1, 2013, for spouses who are paying alimony for a marriage that was five years or less or for spouses paying alimony who will reach full retirement age on or before March 1, 2015;
-on or after March 1, 2014, for spouses who are paying alimony for a marriage that was more than 5 years to 10 years or less;
-on or after March 1, 2015, for spouses who are paying alimony for a marriage that was more than 10 years to 15 years or less; and
-on or after September 1, 2015, for spouses who are paying alimony for a marriage that was more than 15 years to 20 years.
There are a lot of changes to this new alimony law in Massachusetts. This new law provides more structure for both spouses who will pay or receive alimony than under the former law. Former spouses, especially dependent ones in their 50s and early 60s who receive alimony, may be able to continue with alimony if they fit the deviations categories in general term alimony or rehabilitative alimony. It has been thought that this new law will encourage marriages. Due to the cohabitation clauses and the consideration of economic partnership before a marriage (which could be added to the length of marriage in a divorce) could entice more couples to marry earlier and not wait. The new law will also encourage settlements and not court hearings due to the restrictions in the law for filing Complaints for Modification well into the future. Mediation and the collaborative law processes are excellent ways to settle matters due to this new law. All in all this new alimony law is a welcome change to the former law.
This article is not to provide legal advice, but to discuss some of the changes of the Alimony Reform Act of 2011. It is not to be inclusive of all aspects of this new law.
*Quotes in this article are from the Alimony Reform Act of 2011 in Chapter 124, Sections 1-6 called an “Act Reforming Alimony in the Commonwealth”. This new law is codified under Massachusetts General Laws, Chapter 208, Sections 48-55, which are as follows:
Massachusetts General Laws, Chapter 208, Section 48, Definitions.
Massachusetts General Laws, Chapter 208 Section 49, “Termination, Suspension or Modification of General Term Alimony.”
Massachusetts General Laws, Chapter 208 Section 50 “Termination, extension or modification of rehabilitative alimony.”
Massachusetts General Laws, Chapter 208 Section 51 “Termination of reimbursement alimony; modification; applicability of income guidelines”
Massachusetts General Laws, Chapter 208, Section 52 “Termination of transitional alimony; modification or extension.”
Massachustts General Laws, Chapter 208, Section 53 “Determination of form, amount and duration of alimony; maximum amount; income calculation; deviations; concurrent child support orders.”
Massachusetts General Laws, Chapter 208, Section 54 “Remarriage of payor; income from second job or overtime work.”
Massachusetts General Laws, Chapter 208, Section 55 “Reasonable security for alimony in event of payor’s death; orders to maintain life insurance; modification of orders/”