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ALIMONY:
DOES IT EVER END?
Whether or not a spouse should
receive alimony is often one of the most contentious issues in
divorce litigation. Alimony,
which is court ordered spousal support, may be awarded to either a
husband or wife. It may
be ordered in addition to child support payments, depending on the
financial circumstances of each party.
In determining whether alimony will
be awarded, the court currently considers the same factors used when
dividing marital assets/property, including but not limited to the
length of the marriage, the conduct of the parties during the
marriage, the age, health, station, occupation, amount and sources of
income, etc., as well as the needs of each of the parties, and the
opportunity to acquire future assets and income.
In most middle-income families, a
spouse may have the need for alimony, but the other spouse may lack
the ability to pay, particularly if there are children, and child
support has been ordered.
In the event the non-custodial parent has sufficient income,
and/or the custodial parent earns little or no money, a portion of
the support may be characterized as alimony. Alimony is tax deductible to
the payor, and taxable income to the recipient.
Alimony awards are less likely to be
awarded in short-term marriages, or when both parties have relatively
equal incomes and earning capacities. In the event alimony is awarded, it may be for a
specified time period.
Unlike child support, that is determined by specific
guidelines, there are currently no specific guidelines adopted for
alimony. There are
various "formulas" that have been created and/or used by
judges and or attorneys, but the issue of how long alimony
will/should continue remains unresolved, as there have been no
amendments/changes to the existing law.
There is currently a bill before the
Massachusetts House which, if enacted into law, would make sweeping
changes to the duration of time alimony could be received, with a cap
of twelve years. Another
proposal would terminate "alimony for life," but the
duration of the alimony would be left to the judge, to determine on a
case-by-case basis.
Additionally, the Massachusetts Bar
Association/Boston Bar Association Guidelines on Alimony issued the
July 2009 "Report of the Alimony Task Force," suggesting
maximum durational limits of alimony based on length of the
"marital partnership." The durational limits proposed are as
follows: In a marriage
of up to 5 years, the maximum duration of alimony would be 50% of the
length of marriage; more than 5 years up to 10 years, 60% of the
length of the marriage; more than 10 years up to 15 years, 70%; more
than 15 years up to 20 years, 80%; and more than 20 years, the
alimony would be of "indefinite" duration.
Under the MBA/BBA Guidelines,
alimony is presumed to end when the payor retires at an age that
would be considered the usual retirement age for the payor's
career. While these
"guidelines" state that the amount ordered should not
generally exceed 33% of the difference between the gross ordinary
incomes of the parties, they emphasize that such a percentage should not
be utilized as a "formula" for setting an alimony order.
A recent case decided by the Supreme
Judicial Court of Massachusetts, Pierce v. Pierce, presented
the issue of whether a former spouse's voluntary retirement at or
beyond the customary age of sixty-five should create a rebuttable
presumption under the statutes governing the award of alimony, that
any alimony obligation owed by the retiring spouse should be
terminated. In this case
the husband, a former Massachusetts lawyer and judge, retired at age
65 years and 7 months, and filed a complaint for modification
requesting his alimony to his former wife be terminated.
The lower court judge ordered a
continuation of the alimony, but at a reduced rate, stating that he
still had "earning capacity" and could easily obtain some
additional legal work or perhaps become a law professor.
On appeal the Supreme Judicial Court
decided that the retirement of an alimony obligor at normal
retirement age is one of many factors to evaluate when ending or
reducing an alimony obligation.
The case included a detailed discussion of the fair balance of
sacrifice between the parties based on all the equitable factors, not
just retiring at normal retirement age.
Clearly, alimony is a "hot
topic". However,
until and unless changes are made to the existing laws, and/or a
formula is established for the amount and duration of alimony
payments, alimony will continue to be contentious.
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