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.