On September 26, 2011, Governor Deval Patrick signed into law the long-awaited, much anticipated 2011 Alimony Reform Act. The new statute, Massachusetts General Laws, Chapter 208, sections 48-55, goes into effect on March 1, 2012.
The new law sets out specific durations for the termination of alimony based upon the length of the marriage and at “full retirement age.” In certain circumstances, it allows current payors to go back to Court to seek a termination of long-term or indefinite alimony payments based upon the length of their prior marriage. And it allows for alimony to be terminated or suspended if the payor spouse can prove “cohabitation.”
And, while it does in fact bring consistency to an area where there once was none, the confusion lies in the provisions dealing with the interaction of alimony and child support payments, the tax consequences to a payor spouse or payee spouse, and the provisions in the statute which, rightly so, still allow for “judicial discretion” to deviate from the provisions of the statute in the interests of justice.
“Alimony,” as that term is defined, 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. Alimony has always been based upon “spousal need” on the one hand, and “spousal ability to pay” on the other; the key difference is language limiting alimony to a “reasonable length of time.”
Alimony is broken down into four categories: rehabilitative; reimbursement; transitional; and general alimony. Each is defined in the statute. The first three are almost self-explanatory and represent either a lump sum payment or periodic payments for a set term of years. The one that bears discussion here is “general alimony.” This is the household, generic alimony that makes payor spouses or potential payor spouses cringe.
All prior alimony awards are now considered “general alimony” awards under the new statute. Up until now, general term alimony could not be limited, except by agreement of the divorcing parties. In other words, a potential order for “future alimony” would always be lurking out there, even in short term marriage unless waived by agreement. Under the new law, “general alimony” shall terminate upon the remarriage of the recipient or death of the payor spouse, and except where the Court finds reason to deviate from the time limits:
(1) If the marriage is 5 years or less, alimony stops after 50% of the months of the marriage;
(2) If the marriage is between 5 years and 10 years in duration, alimony shall not continue for longer than 60% of the duration of the marriage;
(3) If the marriage is between 10 years and 15 years in duration, alimony shall not continue longer than 70% of the duration of the marriage;
(4) If the marriage is between 15 years and 20 years in duration, alimony shall not continue longer than 80% of the duration of the marriage;
(5) If the marriage is longer than 20 years the Court may order alimony for an “indefinite length of time.”
As stated above, general term alimony may be also be suspended, reduced or terminated with proof of cohabitation of the recipient spouse by the payor spouse.
The confusion in the new statute lies in the calculation of the amount to be awarded as “general alimony.” According to the statute, with few exceptions, the amount of alimony should “generally not exceed the recipient’s need or 30 to 35 percent of the difference between the parties’ gross incomes. The interaction of “need” and the “percentages” set out in the statute remains to be seen. Confusing as well to judges and lawyers alike is going to be the interaction of child support and alimony, where a payor spouse may be ordered topay both as as “unallocated” or “undifferentiated” support. The language in the statute is confusing and will be subject to interpretation as the new law is put to use. What is clear is that a tax analysis may be necessary to assist the parties and the Court to maximize tax savings to the parties, particularly the payor spouse.
Finally, the Alimony Reform Act provides for the opportunity for relief for existing payor spouses, in certain circumstances, to modify existing alimony awards which go beyond the durational limits set out in the statute by filing a Complaint for Modification in the Probate & Family Court. There are important time limits under which such a request for modification can be sought:
(1) Payor spouses married 5 years or less may file for modification on or after March 1, 2013;
(2) Payor spouses married between 5 years and 10 years may file for modification on or after March 1, 2014;
(3) Payor spouses married between 10 years and 15 years may file for modification on or after March 1, 2015;
(4) Payor spouses married between 15years and 20 years may file for modification on or after September 1, 2015;
(5) Any payor spouse who has reached full retirement age (generally 66 years of age) or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013.
The new law is a welcome change to judges and attorneys in divorce and post divorce matters. The new law will create significant change to the negotiation and drafting of divorce agreements and provides for predictability in Court judgments in short term or medium term marriages. It also allows present alimony awards to be challenged, modified and in some cases terminated altogether. Payor spouses who are already divorced, without an agreement to waive “future alimony” need to take a second look to determine if modification or termination orders are available and beneficial to the divorced payor spouse.
Like all new laws, the meaning of the various provisions of the statute will only come with interpretation by the judges in the Probate & Family Court and the higher Courts of the Commonwealth on appeal.
The best advice to those who have already gone through the divorce process is to dust off the divorce agreements or judgments and consult with an attorney to see if the new law applies and affects your particular situation.
-Attorney Mario C. Capano
