After years of struggling with vague statutes and general guidelines, Massachusetts has finally passed long overdue alimony reform legislation.
The new Alimony Reform Act was signed into law in September and will take effect in March 1, 2012. Previously, the alimony laws gave judges a great deal of discretion to award alimony but very little guidance. This resulted in a haphazard and conflicting maze of case law. As a result, attorneys, trying to figure out alimony payments and duration lacked any clear formula, unlike child support calculations.
If you currently pay or receive alimony or anticipate doing so in the future you should be aware of how this new law may impact you. The new law provides for modification of already-existing alimony obligations and sets new guidelines for future alimony orders.
Some of the important changes include:
THE DURATION OF ALIMONY
The new law provides fixed timeframes that limit how long alimony should be paid. These limits are based upon the length of the marriage which is measured from the date of marriage through date of service of a complaint or petition for divorce, not through the date of an agreement or judgment.
TYPES OF ALIMONY
The new alimony law provides for 4 different types of alimony: General Alimony, Rehabilitative Alimony, Reimbursement Alimony and Transitional Alimony.
1. General Term Alimony – also known as periodic alimony, consists of weekly payments made for the duration of either a definite term, or which ends upon the occurrence of a specific event, such as death of the Payor, death or remarriage of the Payee, etc.
2. Rehabilitative Alimony is designed to improve the income-earning capability of the Payee Spouse. If, for example, the Payee Spouse wishes to enroll in school to learn a trade or skill that can increase their income-earning capacity. The costs of such schooling can be ordered to be paid by the Obligor Spouse to the Payee Spouse. However, this finite sum, which can be paid in periodic payments or upon periodic events, would be limited in duration in most cases to a maximum payment period of five (5) years. Rehabilitative Alimony would also be subject to modification if there is a material change of circumstances, such as if the schooling failed to pan out as had been envisioned or planned.
3. Reimbursement Alimony consists of reimbursing the Payee Spouse for a finite sum determined based on the cost or value of the asset or sacrifice attributed to the Payee Spouse. For example, reimbursement alimony would be paid if the Payee Spouse brings significant assets into the marriage which cannot be repaid, or the Payee Spouse works and supports the household while the Obligor Spouse attends medical school, or the Payee Spouse has cared for an elderly family member in lieu of working, etc. Reimbursement Alimony is NOT subject to modification.
4. Transitional Alimony is designed to assist the Payee Spouse in the transition out of the marriage to independent living and would be based in large part on the real financial needs of the Payee Spouse. For example, transitional alimony would be paid if the Payee Spouse had given up a job and now needs short term payments until a replacement job can be found.Transitional Alimony is also NOT subject to modification if there is a material change of circumstances.
Determining Rehabilitative Alimony, Reimbursement Alimony or Transitional Alimony necessarily depends on the facts specific to that case, and are not easily subject to a formula.
Regarding General Term Alimony, the new law institutes a maximum amount of alimony to be paid
Duration of General Alimony:
(1) If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
(2) If the duration of marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
(3) If the duration of marriage is 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
(4) If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
(c) The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.
Further, cohabitation of the recipient spouse may end alimony:
(d) General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.
TERMINATING ALIMONY UPON REACHING RETIREMENT AGE
The new law includes a presumption that alimony should terminate when the payor reaches full retirement age, even if he or she continues to work beyond that age.
COHABITATION AS A BASIS TO CHANGE ALIMONY PAYMENTS
The new law states that alimony may be suspended, reduced or terminated upon the cohabitation of the recipient spouse. The payor spouse must show that the recipient spouse has maintained a "common household" or shared a primary residence with another person for a continuous period of at least three (3) months. Among the factors that indicate the existence of a common household include statements or representations made by those residing together, economic interdependence, conduct and collaboration in furtherance of a mutual life together, benefits from the relationship, and community reputation as a couple.
CHANGES TO INCOME CONSIDERATIONS AND AMOUNT OF ALIMONY PAYABLE
The new law states that the amount of alimony paid should not exceed the recipient's need or 30% to 35% of the difference between the parties' gross incomes. Capital gains, dividend and interest income generated by assets already divided in a divorce are specifically excluded from gross income, as is income from a payor's new spouse. The court may attribute income to a party who is unemployed or underemployed and income from a payor's second job may be immaterial.
Staggered times frames have been established in order to prevent the courts from being flooded with a wave of litigation from those seeking modification or termination of existing alimony orders.
Those paying alimony who want to file for a modification based on the new law must wait until:
March 1, 2013 for those who were married less than 5 years, or any payor who will reach federal retirement age (as defined in the law) before March 1, 2015.
March 1, 2014 for those married 5-10 years.
March 1, 2015 for those married 10-15 years.
September 1, 2015 for those married 15-20 years.
Those entitled to relief due to cohabitation of the recipient or attaining retirement age may file as early as March 1, 2013 regardless of length of the marriage.
If you are in need of further information concerning Massachusetts divorce law, contact us at (617) 232-7222 or visit our web site at http://bostondivorcelaw.net/
No comments:
Post a Comment