Skylark Law & Mediation, PC

Alimony in Massachusetts is one of the more rapidly evolving areas of the law due to the passing of the Alimony Reform Act in 2011 (taking effect in March 2012). In order to fully understand alimony in Massachusetts you have to keep up on the latest appellate cases interpreting this new law. Below we have provided summaries of all the recent appellate decisions relating to the Act (starting with the most recent) along with links to the full text.

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Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. The first sentence of section 34 of chapter 208 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following words:- under sections 48 to 55, inclusive.

SECTION 2. Said section 34 of said chapter 208, as so appearing, is hereby further amended by striking out the third sentence and inserting in place thereof the following sentence:- In fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each of the parties, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive.

SECTION 3. Said chapter 208 is hereby further amended by adding the following 8 sections:-

Section 48. As used in sections 49 to 55, inclusive, the following words shall, unless the context requires otherwise, have the following meanings:-

“Alimony”, 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.

“Full retirement age”, the payor’s normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program; but shall not mean “early retirement age,” as defined under 42 U.S.C. 416, if early retirement is available to the payor or maximum benefit age if additional benefits are available as a result of delayed retirement.

“General term alimony”, the periodic payment of support to a recipient spouse who is economically dependent.

“Length of the marriage”, the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage; provided, however, that the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.

“Rehabilitative alimony”, the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse under a judgment.

“Reimbursement alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years to compensate the recipient spouse for economic or noneconomic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training.

“Transitional alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce.

Section 49. (a) General term alimony shall terminate upon the remarriage of the recipient or the death of either spouse; provided, however, that the court may require the payor spouse to provide life insurance or another form of reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

(b) Except upon a written finding by the court that deviation beyond the time limits of this section are required in the interests of justice, if the length of the marriage is 20 years or less, general term alimony shall terminate no later than a date certain under the following durational limits:

(1) If the length of the marriage is 5 years or less, general term alimony shall continue for not longer than one-half the number of months of the marriage.

(2) If the length of the marriage is 10 years or less, but more than 5 years, general term alimony shall continue for not longer than 60 per cent of the number of months of the marriage.

(3) If the length of the marriage is 15 years or less, but more than 10 years, general term alimony shall continue for not longer than 70 per cent of the number of months of the marriage.

(4) If the length of the marriage is 20 years or less, but more than 15 years, general term alimony shall continue for not longer than 80 per cent of the number of months of the marriage.

(c) The court may order alimony for an indefinite length of time for marriages for which the length of the marriage was longer than 20 years.

(d) General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.

(1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:

(i) oral or written statements or representations made to third parties regarding the relationship of the persons;

(ii) the economic interdependence of the couple or economic dependence of 1 person on the other;

(iii) the persons engaging in conduct and collaborative roles in furtherance of their life together;

(iv) the benefit in the life of either or both of the persons from their relationship;

(v) the community reputation of the persons as a couple; or

(vi) other relevant and material factors.

(2) An alimony obligation suspended, reduced or terminated under this subsection may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order.

(e) Unless the payor and recipient agree otherwise, general term alimony may be modified in duration or amount upon a material change of circumstances warranting modification. Modification may be permanent, indefinite or for a finite duration, as may be appropriate. Nothing in this section shall be construed to permit alimony reinstatement after the recipient’s remarriage, except by the parties’ express written agreement.

(f) Once issued, general term alimony orders shall terminate upon the payor attaining the full retirement age. The payor’s ability to work beyond the full retirement age shall not be a reason to extend alimony, provided that:

(1) When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown; provided, however, that in granting deviation, the court shall enter written findings of the reasons for deviation.

(2) The court may grant a recipient an extension of an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of:

(i) a material change of circumstance that occurred after entry of the alimony judgment; and

(ii) reasons for the extension that are supported by clear and convincing evidence.

Section 50. (a) Rehabilitative alimony shall terminate upon the remarriage of the recipient, the occurrence of a specific event in the future or the death of either spouse; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

(b) The alimony term for rehabilitative alimony shall be not more than 5 years. Unless the recipient has remarried, the rehabilitative alimony may be extended on a complaint for modification upon a showing of compelling circumstances in the event that:

(1) unforeseen events prevent the recipient spouse from being self-supporting at the end of the term with due consideration to the length of the marriage;

(2) the court finds that the recipient tried to become self-supporting; and

(3) the payor is able to pay without undue burden.

(c) The court may modify the amount of periodic rehabilitative alimony based upon material change of circumstance within the rehabilitative period.

Section 51. (a) Reimbursement alimony shall terminate upon the death of the recipient or a date certain.

(b) Once ordered, the parties shall not seek and the court shall not order a modification of reimbursement alimony.

(c) Income guidelines in subsection (b) of section 53 shall not apply to reimbursement alimony.

Section 52. (a) Transitional alimony shall terminate upon the death of the recipient or a date certain that is not longer than 3 years from the date of the parties’ divorce; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

(b) No court shall modify or extend transitional alimony or replace transitional alimony with another form of alimony.

Section 53. (a) In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.

(b) Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued. Subject to subsection (c), income shall be defined as set forth in the Massachusetts child support guidelines.

(c) When issuing an order for alimony, the court shall exclude from its income calculation:

(1) capital gains income and dividend and interest income which derive from assets equitably divided between the parties under section 34; and

(2) gross income which the court has already considered for setting a child support order.

(d) Nothing in this section shall limit the court’s discretion to cast a presumptive child support order under the child support guidelines in terms of unallocated or undifferentiated alimony and child support.

(e) In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include:

(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 party’s 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.

(f) In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed.

(g) If a court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony or child support duration available at the time of divorce; or (ii) rehabilitative alimony beginning upon the termination of child support.

Section 54. (a) In the event of the payor’s remarriage, income and assets of the payor’s spouse shall not be considered in a redetermination of alimony in a modification action.

(b) Income from a second job or overtime work shall be presumed immaterial to alimony modification if:

(1) a party works more than a single full-time equivalent position; and

(2) the second job or overtime began after entry of the initial order.

Section 55. (a) The court may require reasonable security for alimony in the event of the payor’s death during the alimony period. Security may include, but shall not be limited to, maintenance of life insurance.

(b) Orders to maintain life insurance shall be based upon due consideration of the following factors: age and insurability of the payor; cost of insurance; amount of the judgment; policies carried during the marriage; duration of the alimony order; prevailing interest rates at the time of the order; and other obligations of the payor.

(c) A court may modify orders to maintain security upon a material change of circumstance.

SECTION 4. (a) Section 49 of chapter 208 of the General Laws shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act.

(b) Sections 48 to 55, inclusive, of said chapter 208 shall not be deemed a material change of circumstance that warrants modification of the amount of existing alimony judgments; provided, however, that existing alimony judgments that exceed the durational limits under section 49 of said chapter 208 shall be deemed a material change of circumstance that warrant modification.

Existing alimony awards shall be deemed general term alimony. Existing alimony awards which exceed the durational limits established in said section 49 of said chapter 208 shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted.

(c) Under no circumstances shall said sections 48 to 55, inclusive, of said chapter 208 provide a right to seek or receive modification of an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions survive the judgment and therefore are not modifiable.

SECTION 5. Any complaint for modification filed by a payor under section 4 of this act solely because the existing alimony judgment exceeds the durational limits of section 49 of chapter 208 of the General Laws, may only be filed under the following time limits:

(1) Payors who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013.

(2) Payors who were married to the alimony recipient 10 years or less, but more than 5 years, may file a modification action on or after March 1, 2014.

(3) Payors who were married to the alimony recipient 15 years or less, but more than 10 years, may file a modification action on or after March 1, 2015.

(4) Payors who were married to the alimony recipient 20 years or less, but more than 15 years, may file a modification action on or after September 1, 2015.

SECTION 6. Notwithstanding clauses (1) to (4) of section 5 of this act, any payor who has reached full retirement age, as defined in section 48 of chapter 208 of the General Laws, 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.

SECTION 7. This act shall take effect on March 1, 2012.

In Young v. Young, the court determined that where a payor spouse has the ability to pay alimony, a recipient spouse’s “need” for alimony is defined as the amount required for him/her to maintain his/her standard of living during the separation prior to the divorce, and not the standard of living he/she would have enjoyed in the future if the parties had not divorced.

Further, while it is permissible for a judge to order an alimony payment that changes over time (for example, an award of alimony that increases over time in proportion to a payor’s income) under certain, special situations, a variable alimony award is not appropriate in this case.

Read the full decision here.

In Flor v. Flor, At issue is

1) whether a recipient spouse could have demonstrated a change in circumstances, allowing a Complaint for Modification requesting alimony, even when the judge imputed income to her for her failure to obtain work;

2) whether a child’s emancipation qualifies as a material change in circumstances, and

3) whether an alimony order first entered after the Act, but modifying a pre-Act Separation Agreement which allowed for future alimony, must comply with §49(f) of the Act and terminate alimony upon the payor’s reaching retirement age.

The Appeals Court finds that the recipient met her burden of proving a change in circumstances because, even when the court attributed income to her, she was unable to meet her expenses at the time of the modification. Further, a “general reservation” of a right to modify alimony in a Separation Agreement is sufficient to allow for a child’s emancipation to qualify as a material change in circumstances.

Finally, the Court rules that where a pre-Act Separation Agreement reserves the right to revisit alimony in the future, a future order of alimony is considered a modification of the original order of alimony (and not an initial order of alimony) and thus §49(f)’s retirement termination provision does not apply to it.

Read the full decision here.

Popp v. Popp address the same issues as Van Arsdale v.  Van Arsdale:

1) whether it is unconstitutional to apply the Act’s duration limits retroactively, and

2) whether the judge abused her discretion by refusing to extend a wife’s alimony beyond the Act’s duration limits.

Based on its decision issued the same day in Van Arsdale, the SJC finds it is not unconstitutional to apply the Act’s duration limits retroactively, and further finds that the judge properly considered all the factors allowing for deviation beyond the Act’s duration limits, and did not abuse her discretion by denying wife’s request to extend her alimony beyond the duration limits of the Act.

Read the full decision here.

In Van Arsdale v. Van Arsdale at issue is

1) whether it is unconstitutional to apply the Act’s duration limits retroactively, and

2) whether the judge abused her discretion by refusing to extend a wife’s alimony beyond the Act’s duration limits.

The SJC finds that it is not unconstitutional for the Act to allow for retroactive modification of the duration of alimony. The court reasons that the Act simply sets up a presumption that alimony should terminate according to certain guidelines, and that this presumption may be overcome by showing that deviation from the Act’s limits is “required in the interests of justice” under the Act (M.G.L. c. 208 §49(b). The SJC further finds that the lower court did not abuse it discretion in declining to extend alimony beyond the duration limits in this particular case.

Read the full decision here.

George v. George addresses whether a husband can retroactively modify the duration of an alimony obligation, when its duration is longer than the Act’s limits, and when its duration was set prior to the Act. The SJC indicates that payors can retroactively modify duration of alimony orders set before the Act simply because they exceed the Act’s limits, but denies husband’s request to because he filed prematurely. Parties seeking to retroactively modify their alimony obligations because they exceed the Act’s limits may do so, but they must follow the staggered filing schedule laid out in uncodified St. 2011, c. 124, § 5.

Read the full decision here.

The issue presented in Doktor v. Doktor is whether a husband who has reached full social security retirement age can seek to terminate his alimony obligation based on the retirement language in the Alimony Reform Act, when the original divorce agreement was entered prior to the act’s effective date of March 1, 2012. The SJC denied the husband’s request to terminate alimony finding that the Act’s language did not retroactively apply the retirement termination provisions to pre-Act agreements if they merged.

Read our further thoughts here and the full decision here. 

The issue presented in Rodman v. Rodman is whether a husband who has reached full social security retirement age can seek to terminate his alimony obligation based on the retirement language in the Alimony Reform Act, when the original divorce agreement was entered prior to the act’s effective date of March 1, 2012. The SJC denied the husband’s request to terminate alimony finding that the Act’s language did not retroactively apply the retirement termination provisions to pre-Act agreements if they merged.

Read our further thoughts here and the full decision here. 

The issue presented in Chin v. Merriott is whether a husband who has reached full social security retirement age can seek to terminate his alimony obligation based on the retirement language in the Alimony Reform Act or the cohabitation language where the recipient is now cohabitating and when the original divorce agreement was entered prior to the act’s effective date of March 1, 2012. The SJC denied the husband’s request to terminate alimony finding that the Act’s language did not retroactively apply the retirement termination or cohabitation provisions to pre-Act agreements if they merged.

Read our further thoughts here and the full decision here. 

The issue presented in Lalchandani v. Roddy is whether a husband who has reached federal retirement age can seek to terminate his alimony obligation, despite a survival clause prohibiting modification in a divorce agreement, where the parties subsequently agreed to reduce the husband’s alimony after the divorce. Since, the Alimony Reform Act is quite clear that surviving alimony provisions cannot be modified under the Act, the only real issue in the case was whether the survival clause in the judgment was ambiguous. Unsurprisingly, the Appeals Court found that the “total disability” clause in the modification agreement was clear and enforceable, and denied the husband’s request to terminate alimony on the sole basis of his age.

Read our further thoughts here and the full decision here. 

The issue presented in Vadensky v. Vadensky is whether a wife could be forced to pay alimony on a modification of a previous agreement, where the husband was not disabled and there was a subsequent modfication on child support. In deciding numerous issues related to the determination of alimony on a modification, the Appeals Court upheld most of the lower court’s decision except on one issue, including the payor’s second job income, which caused the award to be remanded to the lower court. This continues a trend in recent alimony cases for the Appeals Court and SJC to look very closely at awards of alimony under the still relatively new Alimony Reform Act.

Read our further thoughts here and the full decision here. 

In Zaleski, the SJC addressed four primary issues in the lower court’s decision:

• Rehabilitative Alimony ordered instead of General Term Alimony – AFFIRMED
• Husband’s bonus income not included in alimony amount calculation – REMANDED
• Wife ordered to maintain life insurance for her child related obligations – REMANDED
• Property Division not exactly equal – AFFIRMED

Read our further thoughts here and the full decision here. 

In Sibert, the Appeals Court remanded a number of issues in the lower court’s decision, including an order of alimony that the Wife argued was insufficient to meet her needs. The Appeals Court remanded the provisions for alimony, asset division, and attorney’s fees because the lower court’s findings were not specific enough.

Read our further thoughts here and the full decision here.

In Hassey, the Appeals Court addressed four primary issues in the lower court’s decision:

• Base Alimony of $8,500 per month – VACATED
• Self-Modifying Alimony of 30% of Husband’s gross income in excess of $250,000 – VACATED
• Termination of Alimony on “retirement as defined in the Act Reforming Alimony of 2011, as it may be amended.” – REMANDED FOR AMBIGUITY
• Exclusion of Wife’s inherited interest in vacation home from marital estate – VACATED

Read our further thoughts here and the full decision here. 

In Steele v. Steele, the Appeals Court addressed and upheld three primary holdngs of the lower court:

• Wife’s lifestyle during the marriage, not just during the separation, was a factor in determining her need for alimony. – AFFIRMED
• Wife did not need to prove a signficant change in circumstances to seek an alimony amount greater than an already existing Separate Support judgment. – AFFIRMED
• Joint management of certain assets during the separation required using asset values as of the date of filing and not the date of separation. – AFFIRMED

Read our further thoughts here and the full decision here.

The issue presented in Holmes v. Holmes is whether temporary alimony should be included in the duration limits for general term alimony. The SJC concluded that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony. However, the court also pointed out that the trial court has the discretion to order alimony duration less than the maximum.

Read our further thoughts here and the full decision here. 

In Green v. Green, the lower court ordered alimony that would terminat upon the husband’s retirement from teaching at age 68, beyond his full retirement age. The Appeals Court remanded the case to determine the amount of the husband’s teaching pension how that would impact the end of alimony, essentially pointing out that the trial court had discretion to order alimony past full retirement age, but if setting a different end date the court must make clear findings that support that date.

Read our further thoughts here and the full decision here. 

In Pierce v. Pierce, the central issue was the Husband’s claim that there should be a presumption that alimony ends upon retirement. The Court rejected this argument, stating that the lower court’s decision to continue alimony was within her discretion, and that retirement is only one of the factors in deciding what an alimony order should be. The Pierce decison pre-dated the Alimony Reform Act and may have been part of the motivation for including a presumption that alimony ends upon full retirement age in the Act. That does not necessarily mean the Pierce decision is overridden by the act however. While a quick reading of the new alimony statute might lead you to believe otherwise, there are a number of scenarios in which alimony could (and in many cases) will still continue past retirement age.

Read our further thoughts here and the full decision here.