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Divorce Mediation Blog

Pre-marital Cohabitation in Defining Marital Length Clarified

Tuesday, May 15, 2018

But, In Rejecting Normalized Income for Alimony & Accepting Early Valuation Date:
Why won’t the Appeals Court tell us what they really think?
BORTOLOTTI V. BORTOLLOTTI - Part. 1


Levine Dispute Resolution - Alimony

We have previously lamented the shortcomings of Massachusetts Appeals Court’s Rule 1:28 opinion practice, and the recent Bortollotti v. Bortollotti has us at it again, but that will have to wait until Part 2.


Today, instead, we focus on the court’s helpful clarification of the legislature’s provision that tasks trial judges with determining if and when a marriage may be construed to begin before its legal registration, for purposes of calculating the length of marriage, and the resulting presumed durational limit calculated under M.G.L., ch, 208, § 48. When we say it is helpful, it is not to say that we agree or disagree with the concept, but rather, that, like a puzzle part, it fills a gap that makes the statute more understandable and, therefore, more predictable in outcome.

The concept of a de facto relationship giving rise to an obligation normally associated with a legal one preceded the Alimony Reform Act (“ARA”), beginning with California cases involving child support by estoppel (obligations arising from unrelated-party voluntary undertakings and resulting reliance), to pre-marital contribution in equitable division cases (see, Liebson v. Liebson and Moriarty v. Stone) and, more recently and directly on point, judges’ grappling with the inequities of same sex couples who were divorcing after long relationships and fact-based economic unions, but to whom marriage was foreclosed until implementation of 2005’s Goodridge decision.

In ARA, the legislature expanded the notion to all marriages in the alimony context.

Section 48 allows the trial court to back-date the start of marriage for a “significant marital cohabitation that includes ‘economic marital partnership’”, per Bortollotti. In this case, the trial judge found that the parties had, in fact, cohabited before legal marriage, but that the wife had not contributed income to the partnership, therefore, an economic marital partnership did not exist.

With logic more parallel to actual marriage, and historic alimony law, the Appeals Court reversed, stating that the wife’s very economic dependence signified that the marital partnership had begun. They reconciled three ARA features: the enumerated criteria for awarding alimony; the “common household” needed to trigger a payor’s post-divorce right to demand redress; and the pre-marital issue, here.

Since economic dependence is one of the enumerated alimony factors, the appellate court reasoned, it will suffice to extend the length of marriage retrospectively, for alimony’s presumed durational limit purposes.

The holding is fairly simple. It will apply to many cases, sometimes with minor, and other time substantial effect. The most extreme, obviously, will be when this metric leads to a finding that a 19 ½-year marriage was preceded by a more than 6-month cohabitation with economic dependency, stripping the payor of any presumed durational limit whatsoever, especially where the payor is more than 16 years shy of full social security retirement age. We can expect that this aspect of those cases to be most hotly contested.

The next time, Rule 1:28 and why the rest of Bortollotti is frustratingly sparse.

 

Chouteau and Bill Levine, with Judge James Menno, addressed the Massachusetts Probate and Family Inn of Court

Wednesday, November 26, 2014

On November 20, 2014, Chouteau and Bill Levine, with Judge James Menno, addressed the Massachusetts Probate and Family Inn of Court, on the status of alimony law in Massachusetts, titling their program “The Seven Sins of Alimony”. Their Keynote slides are linked here.

 

Bullish on Alimony at the Fiscal Cliff

Friday, December 07, 2012

People in the business sometimes joke that alimony is the last tax shelter. Each dollar of alimony paid is subsidized by an absolute dollar-for-dollar adjustment to income, which at the top federal bracket saves the payer 35 cents. The tax burden then shifts to the payee, who pays taxes on alimony received, at his or her blended tax rate. For a $100,000.00 per year alimony recipient, if he/she has no other tax deductions (not very common), blended federal taxes total about 20%. Thus, the government loses 15 cents per alimony dollar. (At lower alimony levels, the payee’s tax rate drops and the treasury's proportionate loss increases.)

That brings us to the dreaded Fiscal Cliff, where tax rates and tax “reform” dominate the public discourse. By all media reports, increased tax rates for the “top 2%” are all but inevitable, while reform is also in the wind, now or shortly later. Reform seems likely to include at least some limitations (read, reductions) of itemized deductions such as home interest, local taxes paid and employer provided health care.

Yet, with all the talk of cutting tax preferences, we have not heard a word about any threat to the alimony deduction. Could this be because alimony payers are a formidable interest group? Is it that too many Congressmen pay alimony? Is it that alimony dollars are taxable to someone – the recipient? Maybe, the cost to the treasury is not great enough to garner attention. Whatever the reason, the alimony deduction, like the near-sacred charitable deduction, seems safe.

In fact, it looks like the value of the alimony tax deduction will increase in 2013 since, as the tax rates of alimony payers increase, so too will their alimony subsidy. If the top bracket resumes its Clinton Era 39.6% level, the value of the deduction for the high income earner will increase commensurately: a 13.1% increase! Where else do we find a tax shelter of increasing value in Fiscal Cliff America?

 

ALIMONY, PALIMONY AND (NOW) PREGLIMONY The past, present and future of support obligations in Family Law

Thursday, November 01, 2012

By Madeline Marzano-Lesnevich.

Former spouses may receive alimony; former partners may receive palimony; children indirectly receive child support; and now unborn children and their mothers may be able to receive preglimony. “Preglimony?” you ask. Is this even a word, perhaps a spoonerism or mash-up of some kind? If you Google it, the search engine will auto-complete the suffix of the word for you if you make it to p-r-e-g-l, so someone must have searched for it before you did.

Preglimony is the term that is being given to the prospect of support being paid to mothers for the costs associated with the unborn children they are presently carrying. As a comparison, these are the type of expenses that are normally paid voluntarily by adoptive parents, and often paid to a woman in cases of surrogacy by couples or individuals who are unable to have children. The unsettled issue of preglimony pertains only to children born to unmarried couples because when a child is born during a marriage, the husband is presumed to be the biological father of the child unless and until a paternity test demonstrates otherwise. The husband’s financial obligations to the mother (i.e., his wife) and to the unborn child commence automatically based upon the fact of the marriage itself. In contrast, an unmarried mother does not yet have an automatic right to seek contribution for prenatal costs from the putative father.

Furthermore, medical insurance coverage generally cannot extend to another person unless he or she is related by blood, or through marriage or some other legally recognized form of partnership, or unless the obligation is ordered by a court. Therein lies a potential benefit for a newborn child, but whether an unborn child can similarly benefit remains to be debated and resolved.

Through the further development of technology, a paternity test no longer requires a child to be born to confirm the father of the child. A prenatal blood test now allows a woman’s blood to be drawn during the pendency of her pregnancy to genetically link the father to the child. As a result, there is a growing dialogue that suggests fathers should contribute to the cost of the expenses incurred before birth once confirmed to be the father of the unborn child. At present a father’s obligation to contribute to the support of a child only begins at birth in most non-dissolution matters. This raises complex issues that are not yet being addressed by the New Jersey courts.

I anticipate that there will be much debate about which prenatal costs are necessary and reasonably incurred by a mother, when and if she seeks financial contribution from the father, and whether he was appropriately consulted before they were incurred. These prenatal costs would ostensibly include gynecological visits, Lamaze classes, ultrasound expenses and blood tests. However, the question remains whether this would also require the mother to limit her prenatal expenses to those covered by insurance, or for a judge to determine whether a C-section or natural birth was more cost-effective. Further, preglimony may function as a catalyst to the premature termination of relationships due to the pecuniary interests that may become viable, which were not previously made available by the courts. While these types of disputes are likely to occur if in fact preglimony becomes a viable and codified claim in New Jersey, there is a more far-reaching constitutional issue that may also arise from this nebulous financial obligation.

If a father has an obligation to contribute to the cost of prenatal care, he would likely also be obligated to contribute to the cost of an abortion if the mother chooses that option. In turn, this raises the novel consideration that if a father has an obligation to contribute to the cost of the abortion, he may also have a say in its implementation. While the holding of Roe v. Wade may have confirmed a woman’s right to privacy under the due process clause of the 14th Amendment, it did not contemplate that that the pro-life and pro-choice camps could be further fractured into determining when joint legal custody rights really begin. Given that many parents already have a difficult time co-parenting their children with allegations of parental alienation and child abduction unfortunately becoming far too common place, it goes without saying that litigation surrounding abortion, if it ceased to be an individual’s right, would be inevitable. Either way, the legislature will have to determine whether a woman’s constitutional right to choose could be jeopardized by compelling a father’s contribution to her prenatal medical expenses. Further, they will need to consider how the suppression of that right is being quantified and if that potential burden would be outweighed by the benefit of this additional financial obligation.

It will further raise the issue in determining the parties’ respective percentage obligations to contribute to these prenatal costs. In turn, fathers will likely want to know when mothers choose to begin their maternity leave, and whether there should be income imputed to them to offset a potential lack of income. Further, it may incentivize a father’s contribution to these costs in order to ensure that the child’s surname contains his own, at least before or after a hyphen. This will likely increase litigation as complaints for custody and support will be filed approximately six to eight months earlier than they are now. Normally, claims for child support can only be sought retroactive from when the original application is filed, and normally require there to be written notice given to the father.  It will be interesting to see how stringently these two requirements will be applied to the issue of preglimony in the context of unplanned pregnancies.

Moreover, the legal battles that could and would likely arise from the advent of preglimony are numerous. For example, could a father have a say in when and if a pregnant mother could fly and under which circumstances this would be in the best interest of the unborn child? Could a father seek reimbursement for prenatal costs he has paid if a miscarriage occurs due to the fault of a mother involved in a risky behavior? Further, fathers could be permitted to inquire about and potentially limit an expecting mother’s diet and activity in invasive ways never before deemed permissible by the court system. The intricacies of this form of support could further polarize the already too frequent denizens of the Family Part courtrooms of New Jersey.

It has been suggested in other articles that the prospect of these costs would somehow function as a deterrent to unprotected sex. If the prospect of contributing to the cost of unreimbursed medical expenses, extracurricular activities and college expenses on top of periodic child support is an insufficient financial deterrent, I would suggest that the additional trimester or two of support would not make much of a difference in increasing the likelihood of partners practicing safe sex.

The issue of preglimony gives rise to the potential for far reaching and multifaceted consequences in the ever evolving world of family law in New Jersey. On one hand, some individuals may argue that preglimony will overcomplicate and inflame the already litigious nature of our society, and that its limited financial value to a mother will be outweighed by her resultant loss of privacy. On the other hand, some may argue that the financial burden of a pregnancy should not be the mother’s sole responsibility, and that whether a woman is married or unmarried should not alter a father’s financial obligation to his child. It remains to be seen whether the legislature shall give credence to the claim of preglimony, the way that it presently does with alimony and child support. Either way the issue shall further inform the ongoing dialogue about reproductive equality in this country.

Originally printed in the New Jersey Law Journal, Vol. 209, No. 12, on September 17, 2012

 

Counterpoint re: Alimony Reform and Cohabitation

Tuesday, July 10, 2012

By: David H. Lee Maureen McBrien’s opinion piece in Lawyers Weekly of April 30, 2012 was interesting to read as a perspective of an attorney facing a new issue in the area of family law.  It is important that the changes in the Alimony Law, which went into effect March 1, 2012 be highlighted, and that dialogue ensue with respect to the provisions of the newly enacted law.  Her opinion, however, specifically with respect to her subsection on “When is a modification warranted on cohabitation grounds?” seems in large respect to be inconsistent with the wording of H 3617, the Act Reforming Alimony in the Commonwealth, particularly where she suggests that relief under the Act would not be available if cohabitation had begun prior to March 1, 2012.  Her conclusion that the cohabitation relationship has to have begun post-March 1st in order to seek relief of modification based on cohabitation is not accepted.

The measuring focus for any modification of a divorce judgment is the change of circumstance that has occurred following the entry of that judgment.  Ms. McBrien suggests that the change of circumstance based on cohabitation would require that any such cohabitation be after the effective date of the Act; namely, March 1, 2012, to be a basis for relief.  Now, rather than a pure standard of change of circumstance, the facts supporting cohabitation after the judgment, consistent with the provisions of Section 49(d), provides the basis for relief under the Act.

While Section 4(a) of the Act indicates that Section 49 of Chapter 208 of the General Laws shall apply prospectively, alimony judgments entered prior to March 1, 2012 shall terminate on three bases: (1) only under the terms of such judgments; (2) under a subsequent modification; or (3) as otherwise provided for in this Act.  Section 4(b) of the Act indicates that the enactment into law of Sections 48 through 55 of Chapter 208 of the General Laws shall not, in and of itself, be a material change of circumstance warranting modification but for existing alimony judgments that exceed the durational limits under Section 49 of Chapter 208 of the General Laws with respect to which the Act shall be a material change of circumstance which warrants reduction.

Thus, events which have occurred subsequent to a divorce judgment entered prior to March 1, 2012 can serve as a basis for modification.  These events are not limited merely to a reduction in or increase to the income of one of the parties, but also may include events subsequent to the entry of the judgment of divorce with respect to which relief is provided for in the Act.  These specifically include cohabitation and reaching full retirement age.  The reason that the Act itself can serve as a change of circumstance with respect to which a modification shall be based is that the durational limits referred to in Section 49 are measured with reference to the length of the marriage.  The length of the marriage which has been ended cannot be extended so there is no post-divorce judgment event which could serve as a basis for change of circumstance and modification.  A specific indication that the durational limits within the Act shall be deemed a material change of circumstance provides the opportunity for relief based upon the terms of Section 49.

The particular bases for modification of cohabitation or achieving full retirement age, are ongoing circumstances beyond the entry of a judgment of divorce.  One continues to get older after the judgment of divorce. One can commence and continue on a daily basis, a period of cohabitation beyond the entry of a judgment of divorce.  One cannot, however, extend the length of the marriage.  With respect to cohabitation, in particular, each day of cohabitation is effectively a new starting point such that the three month period of time referred to in Section 49(d) runs from each day forward.  Therefore, irrespective of whether the commencement date of the cohabitation was prior to March 1, 2012 and continues beyond March 1, 2012 a Plaintiff seeking relief by reason of cohabitation would not be precluded from bringing that action for relief.  There is nothing in the Act to suggest that a cohabitation which began prior to March 1, 2012 and continue beyond March 1, 2012 is outside a class of cohabitation with respect to which relief can be provided.

Ms. McBrien’s suggestion that the use of the words “upon the cohabitation” suggests problems for alimony payors where the recipient’s cohabitation began prior to the passage of the Act is not consistent with the reading of Section 49(d). Section 49(d) indicates a mandate that alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household…for a continuous period of at least three months. The word “upon” is the basis for the suspension, reduction or termination of alimony. It is not an event of time (read “based upon”). The time event is “when the payor shows”.

As with all standards of modification; namely, seeking relief from the entry of the last judgment, cohabitation now serves as a basis for seeking post March 1, 2012 relief as provided for in the Act.  The prospective nature of the Act precludes going back to an event of cohabitation during a period of time prior to the effective date of the Act and seeking relief through reimbursement of alimony, but does not prohibit relief, based on cohabitation, from an alimony order that otherwise would extend beyond March 1, 2012 merely because that cohabitation first began prior to March 1, 2012..

It should be noted, as well, that there is no restriction in time regarding when it is an action for modification based upon cohabitation can be commenced after March 1, 2012 as there is in Section 5 applicable to durational limits and Section 6 with respect to reaching full retirement age..

Conclusion

One may seek prospective relief with respect to a pre-March 1, 2012 alimony order based upon cohabitation as defined in Section 49 irrespective of whether that cohabitation commenced before March 1, 2012.

David H. Lee was a Co-Chair of the MBA/BBA Alimony Task Force and a member of the Massachusetts Legislative Alimony Reform Task Force.

Fern Frolin (a member of the Massachusetts Legislative Alimony Reform Task Force) and Denise Squillante (Co-Chair of the MBA/BBA Alimony Task Force and a member of the Massachusetts Legislative Alimony Reform Task Force) note their concurrence with this opinion.

This piece was published as a Letter to the Editor of Massachusetts Weekly, July 9, 2012 edition.  Posted with the author's permission.

 

Impact of Cohabitation Under Alimony Reform Act

Wednesday, May 02, 2012

By Maureen McBrien

A marked change to the statutes that govern divorce in Massachusetts is the provision in the new Alimony Reform Act of 2011 that went into effect on March 1 of this year. The provision provides that an alimony recipient’s cohabitation with another person constitutes grounds for a termination, suspension or reduction in the payor’s alimony obligation.

What does that mean for the numerous alimony recipients who have been cohabiting for months, if not years, prior to the new law and for those who are contemplating cohabitation in the future?

This article will attempt to explain the nuances of the Alimony Reform Act of 2011 as it pertains to particular situations that involve an alimony recipient who has been cohabitating — or will be in the future.

Under the prior law, an alimony order was typically entered and continued indefinitely until — whichever occurred sooner — the death of either party, the remarriage of the recipient, or by order of the court upon a judgment following the filing of a complaint for modification alleging a material change in circumstances since the prior order issued.

What frustrated many payors was the continued obligation to pay alimony notwithstanding the recipient’s cohabitation with a romantic partner in a relationship akin to a marriage.

In some instances, recipients purposefully avoided marriage solely so they could continue receiving alimony. That prompted the movement to include a cohabitation provision in the new act to avoid such gamesmanship.

What is cohabitation?

Under the act, alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.” G.L.c. 208, §49(d).

The act enumerates several factors to determine whether a recipient spouse maintains a common household with another person. While not explicitly so stating, the enumerated factors are reflective of a romantic relationship akin to a marriage, as opposed to simply sharing a primary residence with, for example, a sibling, roommate, nanny or temporary boarders.

The act will fuel the private investigation business, as investigators search for evidence as to whether alimony recipients are in fact cohabitating as defined in the act.

Financial contribution of cohabitating partner

Although alimony is still premised on the need of the recipient and the payor’s ability to pay, the act makes no explicit reference to the financial contribution of the recipient’s cohabitating partner.

While in most circumstances a cohabitating partner’s financial contribution would reduce an alimony recipient’s need for financial support from a prior spouse, in some circumstances the cohabitating partner could be a financial drain on the alimony recipient.

But under the act, financial inquiries are irrelevant, at least at the outset, and the only emphasis is on whether a recipient is cohabitating.

The theory behind that juxtaposition is that ex-spouses should not be obligated to support prior spouses who are in a committed relationship akin to a marriage. Once such a relationship exists, it is incumbent on the couple to support themselves, independent of an ex-spouse.

The reality, however, is that such financial independence will not be achieved by some cohabitating recipients simply by virtue of their cohabitation arrangement.

Nevertheless, the alimony payor may be entitled, at the very least, to a reduction in his alimony obligation in such a circumstance. Under what circumstances does cohabitation warrant a suspension, reduction or termination in alimony?

Once it is determined that an alimony recipient does qualify as one who is cohabitating under the act, the inquiry in a complaint for modification by the payor is whether such fact entitles the payor to a suspension, reduction or termination in alimony.

That is when finances will come into consideration, since even though the act is silent in that regard with respect to cohabitating recipients, the court will obviously need to look at finances to determine whether a reduction as opposed to a termination is warranted.

If the relationship is long-lasting and the cohabitating partner is, in fact, contributing financially and has some savings and/or assets, a termination likely would be warranted.

But if the cohabitating partner is unemployed or disabled, the payor may be entitled to a reduction only.

That inquiry would seemingly expose the cohabitating partner to discovery in the context of a litigated modification action, to determine what his or her income, assets and liabilities are. This may create a double standard as the act is clear that spouses of payors are insulated from such discovery when the tables are turned and the recipient files a complaint for modification seeking an increase or continuation in alimony.

An alimony recipient must accurately disclose on his or her financial statement exactly what expenses are paid for by a cohabitating partner to the household. Such a disclosure might suffice in lieu of extensive discovery in this regard, other than perhaps sending out a few subpoenas to banking institutions to verify the representations.

When is a modification warranted on cohabitation grounds?

Family lawyers in Massachusetts are being flooded with calls from alimony payors elated at the word of alimony reform in the commonwealth. They want to know what they can do to obtain relief and when.

The answer is complex and factually driven, and for purposes of this article will only focus on the issue of cohabitation. The act provides that alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.”

The words “upon the cohabitation” suggest problems for payors in situations in which alimony recipients have already been cohabitating prior to the passage of the act, as the language is suggestive of future cohabitation.

If the recipients are already in a long-term cohabitating relationship, then what is the material and substantial change in circumstances warranting a modification of alimony, other than the passage of the act? There may be none.

With respect to relying simply on the passage of the act itself and its suggestion that alimony payors are entitled to a suspension, reduction or termination of alimony when the recipient is cohabitating, Section 4(b) of the act makes clear that Section 49, which governs cohabitation, shall not be deemed a material change of circumstances that warrants modification of the amount of existing alimony judgments.

Therefore, in instances in which a recipient was already cohabitating as of March 1, when the act went into effect, there is no change in circumstances for the alimony payor upon which to obtain relief.

The payor would need other more traditional reasons to warrant a modification, such as a reduction in income since the date the alimony issued or was last modified. And, in any event, an alimony payor’s relief may only be temporary, as the act provides for a reinstatement of alimony in instances in which the cohabitating relationship no longer exists. See G.L.c. 208, §49(d)(2). Since the act is prospective in its application per Section 4(a), the cohabitation inquiry for payors regarding their recipient ex-spouse began on March 1, 2012, and can only be satisfied if the cohabitating relationship still exists upon the expiration of 90 days, or by the end of May.

If the recipient is in a cohabitating relationship that began prior to March 1, and cohabitation is the only grounds upon which the payor seeks relief, then arguably there is no change in circumstances independent of the act (which cannot in and of itself constitute a change in circumstances of existing alimony judgments, except as to situations in which payors are paying beyond the new duration limits imposed by the act). See G.L.c. 208, §49(b).

Recipients under previously existing alimony orders who begin cohabitating for a period of 90 days or more post-March 1, however, will be subjected to a suspension, reduction or termination in their alimony obligation upon the filing of a complaint for modification by the payor, since such situation arose after the implementation of the act and thus constitutes a change in circumstances from the prior judgment independent of the passage of the act itself.

New alimony orders issued post-March 1 will be subject to modification if, as and when a recipient begins cohabitating, per the new law.

Conclusion

Under the act, cohabitation is clear grounds for modification of new orders and of existing orders when the cohabitation relationship began post-March 1.

In all other circumstances, the fact of cohabitation exposes the recipient to a potential reduction or termination, but it is not at all certain and is highly dependent on what other grounds for modification may exist.

Maureen McBrien practices family law at Todd & Weld in Boston and is an adjunct professor at Suffolk University Law School. She is currently co-authoring the Fourth Edition of “Massachusetts Practice, Family Law and Practice” with Charles P. Kindregan Jr. She can be contacted at mmcbrien@toddweld.com.

Previously published in April 30, 2012 edition of Massachusetts Lawyers Weekly. Posted with permission of the author.

 

Tips for Handling Cases Under The New Alimony Law

Wednesday, April 25, 2012

By Fern L. Frolin

On March 1, 2012, An Act Reforming Alimony, M.G.L. c. 208, §§48 – 55, became law in the Commonwealth. The new law changes the structure and rules of judicially ordered support payments between former spouses. The statute establishes different types of alimony, provides criteria for courts to consider in deciding alimony cases, and encourages end dates for most alimony orders.

Alimony in Massachusetts was historically based on the recipient’s need and the payor’s ability to pay at the time of the order. Because most recipients’ future needs and most payors’ future ability to pay are speculative, nearly all orders had open-ended duration. Thus the notion evolved that alimony is usually a life-time arrangement, changeable only after circumstances requiring modification had already occurred. If a recipient increased income or conscientiously saved, he or she risked termination or reduction of alimony. If the payor suffered involuntary financial reversal, the recipient’s alimony could be abruptly terminated or reduced, despite ongoing need. The scheme encouraged dependency, left recipients vulnerable to unplanned events, and left payors with no ability to foresee when alimony obligations would end.

Against this backdrop, and public pressure for change, the legislature passed the new law. The alimony law retains “need and ability to pay” concepts and permits judicial discretion in most instances, but it expands the narrow restrictions of present need and ability to pay, adding reasonable forward-looking presumptions. It also allows different forms of alimony for different circumstances. Mastery of the new law will require study, practice, and development of a lucid body of interpretive appellate law. In the meantime, the following tips may aid practitioners.

UNDERSTAND EACH TYPE OF ALIMONY AND DETERMINE WHICH IS BEST FOR YOUR CLIENT.

General term alimony is granted to a spouse who is economically dependent. It will usually follow a mid to long term marriage. Except for judgments that the parties agreed were non-modifiable, orders entered before March 2012 are deemed general term orders. General term alimony terminates when either party dies; when the payor reaches “full retirement age” (as defined in the statute); on the recipient's remarriage; on a date fixed by court order; or perhaps if the recipient maintains a common household with a third party. The order is modifiable unless the parties agree otherwise.

Presumptive duration depends on the length of the marriage. After a marriage of twenty years or longer, alimony presumptively ends when the payor reaches full retirement age. The new statute measures marriage length for alimony purposes from the date of marriage to the date of service of the complaint for divorce. Some practitioners question whether the date of service rule will cause payors to rush to serve a complaint in order to establish a marriage length cut-off. Lawyers should advise their clients of presumptive limits but also recognize that judicial discretion may override the statutory presumptions. For example, the court may consider a significant period of premarital cohabitation or a significant marital separation in determining the length of the marriage.

Rehabilitative alimony is granted to a spouse who is expected to be self-sufficient by a predicted time. It is available after any length marriage and is payable for up to five years. It is also available after child support ends. It terminates at a set date, recipient’s remarriage, or on death of either party. It is modifiable in amount. It may be extended for compelling reasons if unforeseen events prevent the recipient from becoming self-supporting and the payor can continue to pay without “undue burden.” Because rehabilitative alimony may last longer than the presumptive limit on general term alimony for marriages of five years or less, this may be the most advantageous form for a recipient after a short marriage. Reimbursement alimony is compensation for the recipient’s contribution to the payor’s financial resources. It is only available if the marriage was five years or less. It is not modifiable, and it is not subject to presumptive durational limits.

Reimbursement alimony is compensation for the recipient’s contribution to the payor’s financial resources. It is only available if the marriage was five years or less. It is not modifiable, and it is not subject to presumptive durational limits. Reimbursement alimony ends only on the death of either party 21 or a date certain, so it may be a good choice for a recipient who plans to remarry or live with a new partner.

Income guidelines do not apply to reimbursement alimony. Therefore, reimbursement alimony may be optimal for a recipient who contributed substantially to the payor’s future where the investment has not yet paid off – for example, when one spouse put the other spouse through graduate school.

Transitional alimony is granted to transition a recipient to a new location or an adjusted lifestyle after a marriage of five years or less. It terminates at a date certain or the death of either party, is not modifiable or extendable, and is available for up to three years. It may not be replaced with a different form of alimony.

CONSIDER DEVIATING FROM THE PRESUMPTIVE TERMINATION DATE WHEN THE ORDER IS FIRST ESTABLISHED. Under the new statute, all alimony orders presumptively terminate when the payor reaches full retirement age, if not sooner. The statute adopts the United States Social Security Act designation of full retirement age, which means that the age varies depending on the payor’s birth date. Further, when the order originates, the court (or the parties by agreement) may set a different alimony termination date for good cause shown. Deviations in initial orders require only written findings of the reasons. Agreements to deviate should state the reasons. Requests for the court to deviate should include proposed findings. Extension of an established termination date will be difficult to secure. An extension requires a material change of circumstances that occurred after the order was entered, and clear and convincing evidence of reasons for the extension. Practitioners should determine at the outset whether facts warrant an order that is longer than the presumptive duration. Advise recipient clients that they will face a heightened burden of proof if they need to extend the order.

CREATE A CHECKLIST OF REASONS TO DEVIATE FROM THE PRESUMPTIONS. The non-exhaustive statutory list includes: parties’ advanced age; medical concerns; sources and amounts of income, including investment income from assets that were not allocated in the divorce; tax considerations; a party’s inability to provide self-support because of the payor’s abusive conduct; a party’s lack of employment opportunity; and orders that one party maintain medical insurance or life insurance. 22 (The latter factor directly conflicts with a provision of the equitable division statute, G.L.c. 208, §34, but the legislature is expected to remedy the conflict soon.) Because the statute presumes that alimony ends at the payor’s retirement age, lawyers should also consider the client’s expected retirement resources, especially if the parties will not be similarly situated after a long term marriage. Divorce lawyers may want to maintain a checklist of deviation reasons and expand the list as new appellate decisions develop.

“COMMON HOUSEHOLD” IS A QUESTION OF FACT. The new statute permits alimony modification, suspension or termination if a general term alimony recipient cohabitates with another person in a common household for at least three continuous months. A finding of “common household” requires a factual determination that the recipient and the third party reside together as a “couple.” Indicia include reputation as a couple, economic interdependence and other factors. Not expressly mentioned in the statute, but facts that practitioners may want to research, include: family memberships, joint bank accounts, and joint ownership of real estate. Look also for “couple” and “status” postings on social network media.

Conclusion: Watch for appellate interpretations of key new statutory provisions. For example, where recipients’ “need” remains the basis for alimony, does the new presumptive maximum order amount now trump “need”? In the meantime, the message of the new law is that each party should plan financially. The new law requires us to think about spousal support in terms of the client’s future needs, resources and lifestyle.

General Term Alimony Presumptive* Maximum Durations

Up to 5 years ………………. 50% of months married
Up to 10 years ……………... 60% of months married
Up to 15 years ……………... 70% of months married
Up to 20 years ……………... 80% of months married
More than 20 years .………... up to presumptive retirement age

* All presumptions are subject to Court’s statutory exercise of discretion

Previously published in the Spring issue of the Boston Bar Journal; reprinted here by permission of the author.

 



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