Berkshire Eagle, The (Pittsfield, MA) – September 27, 2011
Yesterday, Governor Deval Patrick signed alimony reform into law. The vote in the Massachusetts State Senate on “An Act Reforming Alimony in the Commonwealth” was 36-0 in favor, and the vote in the House was 151-0.
Up until now, the only way to get out of alimony was for one’s former spouse to remarry, and some they would not so they could keep collecting. And there was almost no limit in the amount of alimony that could be awarded. Alimony never ended, had vague standards, its purpose was not clear, and there were horror stories of people forced to work in their retirement years. Steve Hitner, president of Massachusetts Alimony Reform, told me in an interview that the law’s biggest accomplishment is the “sunset provision” so that that “people can go on their lives without one person being dependent on the other.” The sunset provision put term limits on how long alimony may last. For instance, with a few exceptions, people cannot be forced to pay alimony beyond the usual retirement age.
Unlike current alimony legislation, the new law clearly sets out different kinds of alimony instead of it all being just undifferentiated ” alimony.” This follows the trends of other states. Now judges must give greater scrutiny as to why they are awarding alimony, rather than a general notation that it somehow vaguely feels “just.”
One new category is “rehabilitative alimony” in which an ex-spouse is expected to become economically self-sufficient by a certain time such as by reemployment or completion of job training. Rehabilitative alimony is limited to five years, although it can be extended if a number of factors are shown through ” compelling circumstances,” which is a high standard. To get rehabilitative alimony beyond five years, the exspouse must show that ( 1) there are unforeseen events that prevent the recipient spouse from being self-supporting ; ( 2) the recipient endeavored to become selfsupporting; and (3) the payer has a continuing ability to pay and no undue burden.
“Reimbursement alimony’ is for recipient spouses of marriages of five years or less. Its purpose is to compensate for the economic or noneconomic contribution to the financial resources of the payer exspouse, such as enabling the payer spouse to complete an education or job training. Under the new law, reimbursement alimony is not modifiable. ” Transitional alimony” is also for marriages of five years or less for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce. It is not the dramatic effort to reeducate or retrain as in rehabilitative alimony, but like rehabilitative alimony, is meant to allow an ex-spouse to get back on one’s feet. It is limited to three years.
Finally, there is ” general term alimony” for the exspouse that is “economically dependent,” perhaps by some permanent physical disability. For marriages that are five years or less, general term alimony many only last 50 percent of the marriage length. For marriages that are 5-10 years, the maximum general term alimony term is 60 percent of the marriage length. For marriages that are 10-15 years old, the maximum general term alimony term is 70 percent of the marriage length. For marriages that are 15-20 years old, the maximum general term alimony term is 80 percent of the marriage length. For long term marriages (more than 20 years), general term alimony will end at retirement age as defined by the Social Security Act.
Under the law that will expire, case law stated that judges could consider the income of the new spouse of the person obligated to pay child support, in effect making the new spouse indirectly responsible for the alimony. This, of course, made for many an angry second wife. Under the new law, “In the event of the payer’s remarriage, income and assets of the payer’s spouse shall not be considered in a redetermination of alimony in a modification action.”
And simply co- habitating and refusing to remarry will no longer keep the alimony spigot flowing. Under the new law, “General Term Alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payer shows that the recipient has maintained a common household with another person for a continuous period of at least three months.”
Under the new law, child support paid shall be deducted before considering alimony. Moreover, under prior case law, judges could kick in alimony after child support ended – not anymore. Where the court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support.”
Finally, the amount of alimony is limited. Under the new law, “. . . the amount of alimony should generally not exceed . . . 30 percent to 35 percent of the difference between the parties gross incomes established at the time of the order being issued. “Moreover, “Income from a second job or overtime work shall be presumed immaterial to alimony modification if: (1) A party works more than a single full-time equivalent position; and (2) The second job or overtime commenced after entry of the initial order.”
Rinaldo Del Gallo is a practicing family law attorney and spokesperson of the Berkshire Fatherhood Coalition.