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


Rehabilitative Alimony: Its All about the Effort, Or is It? Zaleski v. Zaleski, Part One

Wednesday, September 17, 2014

In its second case decided on the Massachusetts Alimony Reform Act, eff. 3.1.12, the Supreme Judicial Court (SJC) upheld the judgment of Probate and Family Court Amy Lyn Blake in which she awarded 5 years of rehabilitative alimony to the wife at the conclusion of a 16 year marriage. In Zaleski v. Zaleski, the wife claimed that Judge Blake had abused her discretion by opting for this restrictive form of spousal support, with its short time limit and heightened standard for extension, over general term alimony, which could have run an additional eight years, with a lower standard for extension.

A basic inference from Zaleski is that the SJC means business when it comes to implementing the legislative imperative: that the days of unlimited alimony are past; and that even with a marriage of long duration, and a high standard of living, if a trial judge writes comprehensive findings of predictable employability, she should expect to be upheld. That said, the case presents a number of other interesting aspects that we will begin to explore in this and subsequent entries.

We start with a curious line between this case and a previous "unreported" decision of the Massachusetts Appeals Court in Nystrom v. Nystrom, about which we wrote on July 9th. The SJC trumps the Appeals Court, especially when the latter's opinion is only that of one panel, unendorsed by the court-at-large and thus not binding any subsequent court, the differing conclusions of the two appellate courts illustrate to us, as divorce mediators, just how fraught litigation is with chance.

The Nystrom panel vacated a trial judge’s award of 6 months of rehabilitative alimony, focusing on that part of the statute that permits the trial court to limit alimony to a period of five years or less for a spouse who is "… expected to become economically self-sufficient by a predicted time, such as,… [by reason of] reemployment…” That judge had concluded that the wife had the ability to become reemployed within 6 months after judgment, and supported this view by finding that the wife “…had not used sufficient best efforts in becoming reemployed…”,. The appellate critique was that the trial court had not expressly discredited the wife's testimony about her unsuccessful job search efforts, and that there was no conflicting testimony that the judge could use to support her finding.

In Zaleski, by contrast, the SJC endorsed Judge Blake’s conclusion that the wife's “… job search efforts had been sporadic and superficial, and that she had not used her best efforts to secure employment." Further: "the judge was not required to credit, or give significant weight to, the wife's assertions as to those steps she had taken in her job search..." Thus, the SJC concluded, that its trial judge was justified in her prediction that the wife would become economically self-sufficient by attaining reemployment at a predicted time.

What led 2 appellate panels to reach opposite results, in the same rehabilitative alimony context? One difference is that the husband in Nystrom did not offer any expert testimony on the subject of the wife's employability. By contrast, Mr. Zaleski did offer an expert to challenge the wife’s self-serving testimony. (Neither wife had an expert.) But, if either expert witness commented on the wife’s job search, neither panel told us. Moreover, Judge Blake “…did not credit the opinion of the husband's expert that the wife was highly employable as a sales manager or marketing manager … but did find that the wife had skills that were transferable across many fields beyond pharmaceutical and medical device sales." So, at least as disclosed by the SJC, Judge Blake did not rely upon the expert in making the apparently critical finding that the wife's job search had been lacking.

A second difference between the two cases is the ages of the wives whose employability was examined. Ms. Nystrom was 58 years old at the time of trial, while Ms. Zaleski was 13 years younger. One could certainly imagine an appellate panel being more skeptical about the job prospects of a woman who was 60 by the time of its opinion, than for a younger person. A third difference was the economics of the two cases. Ms. Nystrom had a five-year earnings average of under $50,000 while Ms. Zaleski had earned in the range of $170,000 at her peak; and, the former was to receive $300 per week of alimony in the latter 9 times that amount. But, if these factors were critical to the thinking of either appellate court, they did not say so.

Perhaps, the most important factor, albeit unspoken in either case, was that the older woman was given 6 months to find self-sustainability by work while the younger was awarded a far higher sum of alimony for 5 years, at the end of which term, she would be “just” 50. Maybe, in their undisclosed thinking, the SJC justices believed that the policy behind alimony reform was advanced by what it deemed a reasonable rehabilitative period, while the Appeals Court felt the 6 months allotted to Ms. Nystrom simply unfair.

Ms. Zaleski's lawyer, Paul Perrochi, told Massachusetts Lawyers Weekly that the “the lesson to be learned is [in] some of these cases you have to win at trial court." Especially true in discretion-laden family law, where the likelihood of reversal on appeal is generally low. But, as divorce mediators, we have to ask potential litigants, should you be taking the chance on "winning" anywhere?

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


Alimony Reform: One Year Later – Part 2

Wednesday, January 16, 2013

In our last entry, we explored some of the self-reflection in the legal community about the experience and leanings of Probate and Family Court judges in applying the new Massachusetts alimony laws, one year after enactment. We noted three apparent points of emerging consensus. Here, we discuss two areas of substantial disagreement among judges, which in turn limit lawyers and parties’ sense of predictability of result in court.

  1. The statute that became effective on March 1, 2012, requires that a judge either reduce, suspend or terminate alimony when the recipient has maintained a “common household” (called cohabitation) for more that three-month’s time. Before the ink on the act dried, lawyers were debating if a cohabitation that had begun before March 1, 2012 could form the basis for mandatory action by a judge after the effective date of the act; or if the common household had to begin post-March 1st to make action by the court mandatory. (The court has long had the right but not the obligation to alter an alimony obligation for a cohabitation that results in diminished need for alimony for decades.) It appears that the trial court judges are split on this, resulting in conflicting orders in different courts.
  2. The new statute mandates durational limits for what it calls “general term alimony” (that is, a maximum length of alimony payments based on the number of months of marriages of fewer than 20 years duration). The statute is silent about when the term of alimony begins: whether at the date of the divorce judgment, or at the earlier date of the start of “temporary orders” (court ordered support payments during the pendency of a divorce case, which can be one to many years in length). No consensus is apparent, which is not surprising given the statute’s lack of direction.
  3. It is the nature of complicated statutes that different judges will apply it differently. This does not reflect poorly on judges at all, but demonstrates their ability and willingness to think and to apply their own sense of reason to an unclear statutory mandate. In time, those areas will become clarified through what is called “case law”, or decisions by appellate courts based on people’s appeals from the Probate and Family Court. A statute as comprehensive and broadly used as this one, which is applied every single day in the Commonwealth, will take many years to interpret, to flesh out and to fully understand.

And, in all likelihood, the statute will be amended further by the legislature.


Pitfalls of the New Massachusetts Alimony Law - Recomputation and Alimony Fixed as Child Support

Friday, May 11, 2012

By David H. Lee

March 1,2012 was the effective date of the Act Reforming Alimony in the Commonwealth. The provisions are contained in Sections 48 through 55 of Chapter 208 of the General Laws of Massachusetts.

Four different types of alimony are identified under the new law: General Term Alimony. which may be terminated based on durational limitations relating to the length of the marriage, suspended, terminated or reduced based on recipient's cohabitation, and terminated when the payor reaches full retirement age; Rehabilitative Alimony, which may be terminated based on a durational limitation within five years; Reimbursement Alimony. which is intended for short marriages and may be terminated after either short term periodic payments or a one-time payment; and Transitional Alimony, which is also intended for short marriages and which may be terminated after either a one-time payment or short tern1 periodic payments lasting for no longer than three years.

All four types of alimony terminate under the statute upon the death of the recipient spouse. The significance of this is that all cash or cash equivalent payments in satisfaction of these obligations will likely qualify as alimony payments under section 71 of the Internal Revenue Code and be includable in the income of the recipient and deductible by the payor.

However, one needs to beware of two provisions of the Code which can impact that assumed income tax treatment: Recomputation and Alimony Being Fixed as Child Support.

Excess alimony payments

Recomputation rules address the issue of excess front-loading of alimony payments. These rules call for the inclusion in the payor's income in the third year post separation of any amount of "excess alimony payments" over the prior three years and for the allowance of a deduction from gross income for the recipient in the third post separation year for that same amount.

The three post separation years are not the 36 months from the commencement of alimony payments, but instead cover the three tax years that follow the commencement of alimony payments pursuant to a divorce judgment or separation agreement. This means that if alimony payments begin any time in 2012. the third post separation year would be 2014.

The effect of the recomputation formula is that while the alimony payments may be includable/deductible in the years paid, the excess alimony deduction for the recipient and inclusion for the payor will come in that third post separation year.

Under the new alimony law. a possible problem can arise when dealing with any type of alimony order of short duration. or where soon after the alimony order is entered there is a termination or suspension by reason of cohabitation or termination by reason of the payor reaching full retirement age.

The formula for calculating excess alimony in the third post separation year is A + B, where A = (year 2 payments) - (year 3 payments + $15,000) and B = (year 1 payments) - [(year 2 payments - A) + year 3 payments]/2 + $15,000. As an example. in a situation where 12 months of Reimbursement or Transitional Alimony is set at $4,000 per month starting in May 2012, then A = $16,000 - ($0 + $ 15,000), B = $32,000 - [($ 16,000 - $ 1,000) + ($0)/2 + $ 15,000] and A + B = $10,500 of excess alimony payments recomputed in 2014.

The recomputation rules do not come into play if payments end early because of the death of either party or the remarriage of the recipient. Recomputation is also not applicable in several other circumstances: Sec 71 (b )(2)( c) payments, which are temporary alimony order payments; alimony payments set as a fixed portion of income from business, property or compensation from employment that are to be paid over a 36 month period (rather than over 3 post separation years); and Sec. 682 alimony trust payments that are distinct from alimony payments between the parties.

If these exceptions do not apply, there are a few ways to deal with the issue of recomputation:

  • Adjust payments to lower amounts and make them nonincludable/nondeductible.
  • Factor in what the likely recomputation will be in the third post separation year and then make an equitable adjustment for the recomputation impact.
  • Spread the payments out in smaller amounts over a long enough period of time to avoid any excess alimony recomputation.
  • Provide that the recipient of a recomputation benefit has the obligation to reimburse the payor at the end of the recomputation period in the amount of the benefit to the recipient, loss to the payor or some amount in between with a payment designated as nonincludable/non-deductible.
  • Consider making additional 71 (b)(2)(c) payments and set later amounts which would not result in "excess alimony".

You should consider the recomputation issue in negotiating agreements, and if no agreement results present the issue to the court in your proposed judgment so the court can make adjustments to avoid recomputation.

If you receive a judgment and recognize that there is a recomputation problem, submit the tax issue to the court post-judgment within the time pennitted by the Rules of Domestic Relations Procedure as addressed in Fechlor v. Fechlor , 26 Mass. App. Ct. 859 (1989) for possible amendment. But you will need to bring these issues to the court's attention and ask for what you want. Do not expect the court to do your work for you.

You should also keep in mind that the recomputation issue may arise with requests for modification or termination by reason of cohabitation or otherwise within the three post separation year period.

Alimony fixed as child support

If all the requirements for alimony payments under Internal Revenue Code Sec 71 are met, then in most cases the income tax treatment will be includable/deductible. However, if the alimony is treated as fixed as child support, this is not the case and the payments from inception will not be includable/deductible.

Alimony will be treated as fixed as child support if by its terms it is reduced (a) upon the happening of a contingency relating to a child of the payor or (b) at a time which can clearly be associated with such a contingency.

The explanation for this can be found in Temporary Regulations 1.71-1T Questions and Answers 17 and 18. A contingency relating to a child means a specific identifiable circumstance such as a child's reaching a particular age, dying, marrying, leaving school etc. A time which can clearly be associated with such a contingency is defined as a reduction not more than six months before or after the date the child is to attain age 18, 21 or the local age of majority.


This consideration of alimony being fixed as child support applies to alimony orders where you can compute the reduction date at the time of entry of the order. Fortunately, the presumption of an alimony payment being fixed as child support by reason of its being reduced at a time which can clearly be associated with a contingency related to a child is capable of being rebutted:

  • The presumption may be rebutted if you can show that the time for reduction is determined independently of contingencies relating to a child.
  • The presumption can be conclusively rebutted if there is a complete cessation of alimony during the 6th post separation year or at the expiration of 72 months.
  • The presumption may be rebutted by showing that alimony is only for a period customarily provided for in the local jurisdiction (such as half the length of marriage).

While we do not presently have any history for the application of the new alimony laws nor do we have anything which could be clearly identified as custom in our jurisdiction with respect to its application, the alimony scheme of durational limits set forth in the statute suggests that the first and third examples are most likely to be used to rebut the presumption.

To make it easier to rebut the presumption, it is advisable that in separation agreements and judgments the statute be specifically referenced if the timing of termination or reduction would result in a presumption of an alimony payment being fixed as child support. Citing specific wording of the statute by section or circumstances which led to setting the time for alimony termination or reduction would also support rebuttal.

For example. if the parties had been married for a length of time whereby the durational limit would result in a date of termination within six months before or after a child turning 18, wording might be advisable such as "The alimony termination date set forth in this judgment (agreement) was determined by reference to MOL c. 208 sec. 49(b)(#) which provides in relevant part that' ............... ' and is not based on any contingency related to a child" might be advisable.

David H. Lee practices/family law as a partner at Lee, Rivers & Corr LLP in Boston.

Previously published in the March 8, 2012 issue of Massachusetts Lawyers Weekly, reprinted here by 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.


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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