Alimony & Spousal Support

What kinds of alimony are potentially available?

The type of alimony most people commonly think of is referred to as “general term alimony” in Massachusetts. This is simply the payment of support to a spouse who is economically dependent. However, there are several other types:

• “Rehabilitative alimony” is the payment of support to a spouse who is expected to become economically independent within a predicted time frame (e.g., upon completion of education or job training).
• “Reimbursement alimony” is the payment of support to compensate the recipient spouse for economic or non-economic contributions to the financial resources of the payor spouse (e.g., contributing to the payor spouse’s education costs, or enabling the payor spouse to obtain a degree). Reimbursement alimony is available only if the marriage did not exceed five years.
• “Transitional alimony” is the payment of support to enable the recipient spouse to transition to a new lifestyle or location post-divorce. Transitional alimony is available only if the marriage did not exceed five years.

How much will the alimony obligation be?

Under G.L. c. 208, § 53(b), 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 established at the time of the order being issued.” However, the “30 to 35%” range is now functionally obsolete because of a federal law, the Tax Cuts and Jobs Act of 2017 (“TCJA”). Prior to the TCJA, the spouse who paid alimony (the “payor”) could deduct the alimony paid from the gross income reported on tax returns; and the recipient of alimony had to report the alimony received as income on tax returns. With the passage of the TCJA, alimony is no longer deductible by the payor, and the recipient does not need to report alimony as income. Because of this change, most courts recognize that the 30-35% range is no longer appropriate and instead use a range of 22-28%. In other words, alimony is typically calculated as 22-28% of the difference in the parties’ gross incomes – so long as the amount calculated is consistent with the recipient’s “need.” Income is defined as set forth in the Massachusetts Child Support Guidelines.

What is “need” in terms of alimony?

“Need” refers to the how much support the recipient spouse needs to maintain the “marital lifestyle,” so long as the payor spouse has the ability to pay. The law recognizes that after a divorce, it would be unfair for one spouse’s standard of living to significantly decline while the other spouse’s standard of living remains unaffected or improves.

How long will the alimony obligation last?

The length of a general term alimony obligation depends on the length of the marriage.

• If the length of the marriage is 5 years or less, alimony may not last more than 50% of the length of the marriage.
• If the length of the marriage is between 5 and 10 years, alimony may not last more than 60% of the length of the marriage.
• If the length of the marriage is between 10 and 15 years, alimony may not last more than 70% of the length of the marriage.
• If the length of the marriage is between 15 and 20 years, alimony may not last more than 80% of the length of the marriage.

The alimony obligation will terminate upon the death of either party, the remarriage of the recipient, or the payor attaining full retirement age (which is presently 67).

In addition, alimony may be terminated if the recipient spouse has maintained a common household with another, as defined in the statute, for at least three months.

The less common forms of alimony noted above each come with their own specific termination conditions.

Deviation

A court may deviate from the above guidelines relative to the amount and duration of alimony in certain circumstances if the Court makes written findings that deviation is necessary. There are various grounds for deviation including, but not limited to:

• advanced age, chronic illness, or unusual health circumstances;
• tax considerations;
• whether the payor is providing health insurance for the recipient, and/or the cost of health insurance for the recipient;
• whether the payor spouse is obligated to maintain life insurance to secure the alimony obligation, and the cost of said insurance;
• the 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;
• whether there was 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 that party’s own support by reason of physical or mental abuse by the payor;
• 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.

Are alimony orders set in stone?

As with many legal questions, the answer is “maybe.” If the parties reach an agreement on the terms of their divorce, their agreement will state whether or not the alimony obligation “merges” with or “survives” the divorce judgment. If the obligation merges, then after the divorce, either party may file a modification action with the Court if there has been a material change in circumstances (e.g., the payor suffered a reduction in income). If the alimony obligation “survives” the divorce judgment, then it is extremely difficult to pursue a modification.