On Monday, September 26, 2011, Governor Deval Patrick signed into law a new statute materially revising the treatment of alimony both in amount and duration, marking the most significant change in the alimony laws of Massachusetts in over thirty-five years. For the first time, there are now four distinct categories of alimony, each with established timetables for duration based primarily on the length of the marriage.
1) “General Term Alimony,” defined as the periodic payment of support to a recipient spouse who is economically dependent, will likely be the most generic and common form of order made by the Court. Unlike the prior statute, which contained no guidance relative to the amount of an alimony award, the new law prescribes that an award “should generally not exceed” 30-35% of the difference in the two parties’ gross incomes. The new law also provides that if there is a child support order, alimony will only be based on income not already considered for child support purposes. Depending on the number of years of marriage, the payor can only be required to support his or her ex-spouse through general term alimony for a certain percentage of those years in the future. For example, with a marriage of less than five years, the payor may only be ordered to maintain alimony for the number of months equal to 50% of the months they were married. If they were married between five and ten years, then alimony would last up to 60% of the number of months they were married. A sliding scale continues until the length of the marriage exceeds twenty years, at which point, the judge may order alimony for an indefinite length of time. The length of the marriage now terminates upon the service of the Complaint for Divorce rather than the entry of Judgment.
2) “Rehabilitative Alimony,” designed to support a recipient spouse expected to become economically self-sufficient within a predicted time, shall be paid for a term of five years or less.
3) “Reimbursement Alimony,” intended to compensate a recipient spouse for economic or non-economic contributions to the financial resources of the paying spouse (ex: enabling him to complete some form of higher education), shall terminate upon a date certain. This form of alimony is not modifiable.
4) “Transitional Alimony,” designed to transition the recipient to an adjusted lifestyle or location as a result of the divorce, shall terminate no longer than three years from the parties’ divorce.
The Court is now also expressly authorized to consider “significant premarital cohabitation,” and the existence of an “economic partnership” prior to the marriage, in computing the duration of the parties’ “marriage.” All periods of “marital separation for significant duration” will also be considered by the judge. For the first time, alimony will now terminate upon the payor attaining full retirement age, as that term is defined by the United States Old Age Survivors, and Disability Insurance program. While the court can deviate from these rules at the time of the initial alimony judgment upon a showing of “good cause,” whether and under what circumstances a court will do so remains to be seen.
The grounds for modification of an alimony order have also been revised. Alimony may be “suspended, reduced or terminated” if the recipient spouse has maintained a “common household” with another individual for a period of “at least three months.” This is a profound change in the current law. Income from second jobs and part-time employment will no longer be included in the alimony calculus. And, if a payee seeks an increase in his or her existing alimony payment because of a payor’s remarriage, the new spouse’s assets and income are now excluded from consideration.
Anyone considering seeking a modification of a current alimony judgment in light of the new law should understand that it is not immediately effective, nor is it automatic. In order to avoid significant “bottlenecking” at the Probate and Family Courts, the drafters created a phase-in for modification actions based on the number of years of the marriage, regardless of when the divorce took place. Payors married for five years or less may file a complaint for modification on or after March 1, 2013; those married for between five and ten years may file on or after March 1, 2014; those married between ten and fifteen years may file on or after March 1, 2015; and those married between fifteen and twenty years may file on or after September 1, 2015. Notwithstanding this phase-in schedule, any payor who has reached full retirement age or who will do so before March 1, 2015 may file a complaint for modification on or after March 1, 2013.
Of course, a complaint for modification based on a material change in circumstances (and not the existence of this statute) may be filed at any time. Anyone who presently receives or is paying alimony would be well advised to contact an attorney to see how this law might impact their case.
Meghan Albert is an attorney with the Framingham law firm of Lander & Lander, P.C., concentrating her practice in the area of domestic relations.