Divorce Mediation Blog

Rehabilitative Alimony: Whatever Happened to Needs? Zaleski v. Zaleski, Part Two

Wednesday, September 24, 2014

In our last entry we introduced the SJC’s second case on the Massachusetts Alimony Reform Act, eff. 3.1.12, in which it upheld a judgment of 5 years of rehabilitative alimony to the wife at the conclusion of a 16-year marriage. The sum of alimony in Zaleski v. Zaleski was $140,000 per year, 35% of the husband’s base salary. The SJC vacated this part of the judgment, requiring that alimony be recalculated to take into account that the husband’s overall employment income generally ran closer to or above $1 million annually.

In reaching this conclusion, the court examined the statutory provision that alimony (except reimbursement alimony) should generally not exceed the recipient’s need or 30 to 35% of the difference between the parties’ gross incomes, excluding income arising from the parties’ property as divided and income used to compute a child support award. In doing so, the SJC begged the question that we have raised previously here: did the legislature intend that “need”, the historical measure of maximum alimony before the new statute, be a “ceiling” on alimony going forward, or a “floor”. In other words, if the payor earns enough to provide support in excess of “need” by paying 30-35% of the income differential, should he or she be required to do so? Or, if 30-35% exceeds need, should need limit the award?

The SJC answer seems to be, “neither of the above”.

To be sure, the SJC issued Zaleski in the context of a marriage wherein the trial judge had found that the parties had “spent beyond their means”, and this led the court to distinguish between historical spending from “need”. Nonetheless, the SJC treated recipient need and the income differential percentage as independent measures: simply a menu from which a judge may pick to measure alimony under the circumstances presented. How does this square with decades of decisional law the preceded the new statute?

Ironically, on the facts of this case, the SJC decided that $140,000 per year of alimony was insufficient for the 5 years of rehabilitative alimony that it approved; while concluding in the same breath that her predicted re-entry into the workforce would make her “self-sufficient”. This, after the court did not fault the trial judge for declining to find that her income would likely reach $160,000 - $170,000 (noting that her historical base pay was $127,000-$130,000). Following this logic, and applying the same 35% measure that the trial judge used for a $1million payor income, alimony would be $350,000 while, predicted replacement income below $160,000 would constitute self-sufficiency, or one assumes, the elimination of “need”.

There is something fuzzy about the math, if not the logic. And, even assuming that the parties spent beyond their means, does leaving the husband with the capacity to do so and the wife with an undefined future income capacity that is perhaps 85% lower, pass a fairness test? Is there a functional difference between “need” when dependent and need when “self-sufficient”?

So where does Zalesky leave the law with regard to need-based alimony? Is this long-standing and assumed pillar of alimony now optional? Does it apply differently in short-term alimony than for general term alimony judgments? Is the standard for payment in rehabilitative alimony different than the measure of self-sufficiency that supplants it?

Next: Alimony in Massachusetts: Discretion “Unaffected”? Zaleski v. Zaleski, Part Three

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