Alinony Reform Act
Are you contemplating divorce, have you filed for divorce and are unrepresented by counsel, or are you currently ordered to pay alimony? Do you have questions about how the new alimony reform act may impact you? If so, please call the law offices of Qua, Hall, Harvey & Walsh at 978-250-4255 and ask to speak with attorney Laurie Hogan.
The information contained herein is intended for informational purposes only and is not intended to be a substitute for legal counsel or advice. Please be represented by a qualified attorney in all legally significant matters.
ALIMONY REFORM ACT 2011
The Alimony Reform Act of 2011 was passed by both the House of Representatives and the Senate. The bill is now awaiting signature by Gov. Patrick, and if signed, will take effect March 1, 2012. What does this mean for you? The new bill will impact individuals contemplating divorce, going through a divorce, and those who have already received a Judgment of Divorce.
This article will discuss the impact of the Alimony Reform Act on individuals either contemplating divorce or currently involved in divorce proceedings. It will then discuss the impact of the Alimony Reform Law on individuals currently under an alimony obligation order. For individuals currently involved in divorce proceedings the new act emphasizes the duration of the marriage as being a deciding factor in the maximum alimony terms. The proposed act takes the ambiguity away from previous laws that defined marriages with general concepts like “short” or “long-term” and exchanges them with more direct time-specified restrictions.
For example, for marriages of more than 20 years, alimony will end at retirement age. The maximum alimony terms for marriages less than 20 years are determined using the following data:
- 5 years or less - 50% of the number of months of marriage.
- More than 5 years to 10 years - 60% of the number of months of marriage.
- More than 10 years to 15 years - 70% of the number of months of marriage.
- More than 15 years to 20 years - 80% of the number of months of marriage.
- More than 20 years – the court shall have discretion to order alimony for an indefinite length of time
A key provision, contained within the Alimony Reform Act, is an alimony order may terminate upon the payor spouse attaining retirement age. Under the previous law, there was no termination date for alimony.Under the act, once an alimony order is issued, general term alimony orders shall terminate upon the payor attaining the full retirement age, when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416, as amended and as may be amended in the future. The payor's ability to work beyond said age shall not be a reason to extend alimony, provided that:
- When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown
- The court may grant a recipient an extension of an existing alimony order for good cause shown
- In granting an extension, the court shall enter written findings of:
a material change of circumstance that occurred after entry of the alimony judgment;
any reasons for the extension that are supported by clear and convincing evidence.
Modification of Alimony based on payee maintaining a “Common Household” with another
In accordance with the provisions of the Act, if you, as a payor learn the payee maintains a “common household” with another person for a continuous period of three months you are entitled to seek a modification of the alimony order. The payor may seek to suspend, reduce, or terminate an existing alimony order. Below is the definition of “common household” and evidence which may be used to demonstrate an individual is in fact maintaining such a household:
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:
- Oral or written statements or representations made to third parties regarding the relationship of the cohabitants;
- the economic interdependence of the couple or economic dependence of one party on the other;
- the common household couple engaging in conduct and collaborative roles in furtherance of their life together;
- the benefit in the life of either or both of the common household parties from their relationship;
- the community reputation of the parties as a couple; or
- other relevant and material factors.
In determining the type, amount and the duration of an alimony order, the Act sets forth statutory factors the court must consider. The statutory factors are:
- the length of the marriage;
- age of the parties;
- health of the parties;
- both parties' income;
- employment and employability, including employability through reasonable diligence and additional training, if necessary;
- economic and non-economic contribution 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 may deem relevant and material.
Formula for determining the Amount of Alimony
The formula used by the Act, to determine the amount of alimony, is generally, alimony should not exceed the recipients need or 30 to 35 percent of the difference between the parties gross incomes established at the time of the issuance of the order. However, it should be understood that there is an exception to this general rule for reimbursement alimony or circumstances warranting deviation of other forms of alimony. Income shall be defined as set forth in the Massachusetts child support guidelines, as they may be amended from time-to-time.
Income Excluded for Purposes of Determining Alimony
Some income shall be excluded in calculating income for the purposes of alimony. Income which is excluded for purposes of determining alimony:
- capital gain income and dividend and interest income which derives from assets equitably divided between the parties under section 34; and
- gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts child support guidelines or otherwise; provided, however, that 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.
Duration of Alimony
At first glance, it may appear the Alimony Reform Act provides a clear guideline for the length of an Alimony order; however, this is not entirely accurate. Despite the durational limits contained within the Act, the Alimony Reform Act contains language which grants the court authority to deviate from the guidelines provided in the Act. Grounds for deviation may include:
- advanced age;
- chronic illness;
- unusual health circumstances of either party;
- tax considerations applicable to the parties;
- whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
- whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
- 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;
- 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;
- a party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;
- a party's inability to provide for his or her own support by reason of a party's deficiency of property, maintenance or employment opportunity; and
- upon written findings, any other factor that the court deems relevant and material.
Modification of Existing Alimony Orders
If you are currently ordered to pay alimony, you may be entitled to file a Complaint for Modification in the Family and Probate Court, seeking a change in your alimony order. The Act provides: “existing alimony judgments that exceed the durational limits set forth in section 49 shall be deemed a material change of circumstance that warrant modification. Existing alimony awards shall be deemed general term alimony, and 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.”
In order to be eligible for a modification the parties must have agreed that the alimony order would be modifiable. This is of critical importance, as it is the initial threshold which must be met in order to seek a modification. For individuals who have re-married and are concerned their new spouses’ income or assets will be factored into a new alimony order, the Alimony Reform Act addresses this concern. The Act provides: “If the payor has remarried since the time of divorce the income and assets of the payor's spouse shall not be considered in a redetermination of alimony in a modification action.” Additionally, Income from a second job or overtime work shall be presumed immaterial to alimony modification if:
- a party works more than a single full-time equivalent position; and
- the second job or overtime commenced after entry of the initial order.
Time Frame for Filing a Complaint for Modification
In anticipation of large volumes of people wanting to file a Complaint for Modification, of an existing alimony order, the Act contains language which outlines when an individual may file a Complaint for Modification. Any Complaint for Modification filed by a payor solely because the existing alimony judgment exceeds the durational limits as set forth in the Act, may only be filed pursuant to the following:
- Payors, who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013.
- 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.
- 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.
- 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.
THE INFORMATION CONTAINED HEREIN IS INTENDED FOR IMFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR LEGAL COUNSEL OR ADVICE. PLEASE BE REPRESENTED BY A QUALIFIED ATTORNEY IN ALL LEGALLY SIGNIFICANT MATTERS.