THE BLOG
03/15/2011 03:26 am ET Updated May 25, 2011

Massachusetts' 'Almost' Alimony Law

Alimony is a highly-charged word.

Discussions of alimony generally get the strongest reactions from both men and women when working out the terms of a divorce. Believe it or not, it's generally more contentious than custody disputes over children or property division.

Men (the typical gender of the alimony provider) are understandably concerned. They are no longer entitled to receive their wife's love or services but still must pay. To add insult to injury, sometimes alimony is payable even when the wife had decided to end the marriage. And men are understandably concerned about the negative effect of alimony on the wife's future motivation to make her own living.

On the other hand, married women have often experienced significant decreased opportunities in their careers. They often have made (by mutual decision with their husband) their top priority to take care of the family, home, children, and husband -- to be a homemaker. That's why some commentators view a marriage as an economic partnership, with the right to alimony payments as essentially a payment of the marital partnership's income interest.

It is the atypical cases that capture the attention of the media. We hear about lifetime alimony paid to an "able-bodied" spouse after a very short marriage. Or a man who is ill and penniless, but must still pay alimony. On the other side, we hear about cases where a wife whose marriage has ended has no career or work prospects and is unable to support herself adequately because of no or insufficient spousal support. Alimony can be seen as a good thing or a bad thing, depending on whose ox is being gored.

Massachusetts' current alimony laws. Presently, Massachusetts has very typical alimony laws. The issue of alimony (as is the issue of property division) is based on an analysis of many factors, among them, age, opportunity for future acquisition, length of marriage, contribution to marriage (including as a homemaker), conduct, and employability.

Nothing in the Massachusetts statute defines when alimony should end. And Massachusetts judges don't believe the statute gives them authority to order a termination date at the time an alimony order is set. In a recent case, Pierce v. Pierce (2009), quite surprisingly (to most lawyers) the Court denied the request of a 66 year-old retired attorney to terminate alimony in Massachusetts.

Alimony laws tend to be quite vague, Massachusetts' present laws included. This is due to the multiplicity of case facts and situations to be decided. When we advise our clients, we have to rely on an amorphous set of case decisions, anecdotal reports from colleagues on non-reported cases, various guidelines and pronouncements for lawyer bar associations and law groups. Complicating the alimony landscape in Massachusetts was a 2009 change in an administrative ruling setting the child support amounts. In this change, the ceiling of income subject to child support was greatly increased (to provide parity to married and unmarried parents). As a result, everyone's concept of what was the proper amount of an alimony to be paid became very unclear and confusing.

Massachusetts previous proposals. Over the past few years, there have been a number of proposals to amend the Massachusetts alimony laws to provide more guidance for divorcing couples, their attorneys and the Courts. In 2009, there were 2 competing proposals, neither which was enacted into law. One proposal, S.B. 1616, simply granted judges the additional power to determine the duration of alimony order at the time it was set. The other, H.B. 1785, proposed an alimony law that made a priority on increasing the earning capacity of the receiver and limiting alimony payments. Neither proposal was enacted.

H.B. 1785 is instructive, because it was thought to be unduly punitive to potential recipients. It had been devised and promoted by an alimony reform group, led by men who believed alimony laws were unjust to payors.

The goal articulated in H.B. 1785 was to promote self-sufficiency for the payee spouse within a "reasonable period" of time. "Reasonable period" was defined by the statute as a period which could not exceed one half the length of the marriage, or twelve years, whichever is less. There was an exception: if there were children under 16 that the supported party was taking care of, then the "reasonable period" could extend until the youngest child had attained 16 years of age.

In H.B. 1785, the amount of alimony would be automatically reduced during the second half of the alimony term by ten percent a year. If the payee party did not exhibit "willingness and diligence" to seek employment counseling and training, she would be punished by reducing the duration or amount (or both) of the alimony order.

H.B. 1785 sought to eliminate other important factors in the Massachusetts alimony statute, including conduct, employability, station (which means the lifestyles of the parties), the needs of a party, and opportunity of future acquisition. These factors were struck in their entirety. The result could be devastating for a wife who had foregone employment opportunities to create a family and maintain a home life.

The new proposed Massachusetts Alimony Reform Act.

In January, 2011, a new Massachusetts alimony bill was filed with the Massachusetts Senate entitled "An Act To Reform And Improve Alimony" to be known as the "Alimony Reform Act of 2011.

It is quite thoughtful, and seeks to try to take out the uncertainty and unfairness in present alimony laws. The Act seeks to balance concern for the well-being of the spouse needing support, with equity for the paying spouse. The proposed law is quite unique, and may have a ripple effect on other states' alimony laws if enacted. The proposed Act has been supported by both the Massachusetts Bar Association and the Women's Bar Association of Massachusetts, which means it may have an excellent chance of passing into law.
Here are some basic elements of the proposed Massachusetts Alimony Reform Act.

Durational Limits. The duration of alimony under the Act depends on the length of the marriage. It can be no greater than 50% of length of the marriage if the duration was 5 years or less; 60% if 10 years or less, but more than 5 years; 70% if 15 years or less, but more than 10 years; and 80% if 20 years or less but more than 15 years. In a marriage which is 20+ years, the court may order alimony for "an indefinite length of time" but is not required to. All these parameters can be modified if required "in the interests of justice". These durational parameters are similar to those that have been suggested by guidelines issued by American Academy of Matrimonial Lawyers, and by rulings of Massachusetts judges.

Termination at Remarriage and Cohabitation. Under the Act, alimony ends at remarriage of the recipient (unless the parties specifically agree otherwise). It should be noted that termination upon remarriage is not required by the Internal Revenue Code (to permit deduction of alimony payments), nor is it currently required under Massachusetts laws. Under the partnership view of marriage as creating an income interest in a spouse's (greater) earnings, this seems to be unfair as a blanket rule. I have often suggested to people negotiating divorces that a modification of the blanket termination rule (such alimony as reduced by 50% upon remarriage) is a good thing for both parties. It might encourage the remarriage of a spouse whose economic self-preservation would lead to a decision not to remarry.

The Act provides for suspension, reduction or termination upon cohabitation of the recipient spouse, with someone with home sharing a "common household" after at least 3 months of cohabitation. Thus the Act seems to encourage cohabitation rather than remarriage.

Termination at Full Retirement Age. To address the concerns raised in the Pierce alimony case, the Act provides that alimony orders will end when the payor reaches full retirement age for social security. This court can deviate from this rule for good cause. An example that might result in deviation might be a "later-in-life" divorce when the parties are their 50s or 60s, with inadequate retirement savings and a payor who had intended to work past normal retirement age. There also might be post-divorce extension for "good cause", such as a material change in circumstances which might render the termination inequitable.

Amount of Alimony. Many of the factors in the present Massachusetts alimony statute
are included in determining the amount to be paid (and also the duration) of alimony under the Act. These include length of marriage, age of parties, economic and non-economic contribution to the marriage. The term "station" has been changed to "ability of each party to maintain of marital lifestyle". Note the word "each" in that factor. A recipient should not be entitled to a higher lifestyle than the payor. (This is actually embedded in case law under Massachusetts' current statute.)

The concept of marital post-divorce partnership is now newly reflected in a new factor termed "lost economic opportunity as a result of the marriage". Employment and employability, "including employability through reasonable diligence and additional training, if necessary", harkening back to H.B. 1785, is now included as a factor. Those mythical ex-wives who wish to sit in front of the TV watching Oprah and eating chocolates are now forewarned.

Another guideline is established with respect to amount. It is generally not to exceed "the recipient's need" or 30 - 35 percent of the difference between the parties' gross incomes at the time of the divorce. (This comports with current Massachusetts alimony practice.) Income subject to child support is deducted from the gross income of a party. It is unclear as to what happens to an alimony order when children are emancipated.

Existing Alimony Orders. Under The Alimony Reform Act of 2011, an ex-spouse in a case decided prior to enactment can never file on the basis of material change of circumstances to reduce or increase the amount of an existing alimony orders. But the Act itself is a "change of circumstances" that may entitle an ex- spouse to vary the duration of alimony in an existing order. However, if a couple had initially agreed that the alimony terms in their separation agreement were to be non-modifiable (this is often done with mutual advantage to each of the spouses), the duration cannot be changed after the Act is passed.

Massachusetts again a Beacon. After many years of discussion, Court decisions, theorizing, and uncertainty, Massachusetts may be closer now to an alimony system that works better, is fairer to both parties, and reflects equity.

As with its leadership in abolition of free public education, abolition of slavery, enactment of same-sex marriage and health care reform, Massachusetts may once again serve as a beacon to the country. It is poised to do just that in the formulation and anticipated enactment of "An Act to Reform and Improve Alimony" for Massachusetts alimony.

© 2011 Laurie Israel.