Massachusetts divorce lawyer Nicole K. Levy reviews the how deviations from amount and durational limits under the Massachusetts alimony reform act operate.
Although deviations under the Massachusetts Support Guidelines are familiar to many attorneys and litigants, deviations under the Massachusetts Alimony Reform Act are less understood. The Act was originally intended to provide clarity for Massachusetts alimony orders, including the calculation, amount, and duration of alimony payments. This predictability was meant to offer alimony paying and receiving spouses the ability to budget and plan their respective lives, and to reduce litigation by providing clear guidelines for parties, attorneys and judges to follow in alimony cases. Given the financial burden that comes following a divorce as two lives separate, predictability is especially important. For this reason, the Act provides that alimony generally shall not exceed the receiving spouse’s need or 30 to 35 percent of the difference between the parties’ gross incomes established at the time of the order being issued.
The calculation of alimony under the Act bears several similarities to calculating child support under the Massachusetts Child Support Guidelines. Like child support under the Guidelines, the “alimony formula” is calculated by a formula based on each parties’ gross income, as well as the length of marriage. Unlike child support under the Guidelines – which sets both the minimum and maximum child support order – the “alimony formula” under the Act only caps maximum alimony awards, but does not specifically provide a minimum order. Under Ch. 208, s. 34, a Massachusetts probate and family court judge who is determining alimony may also may consider factors such as the parties’ age, health, employability, and marital lifestyle, as well as the ability of each party to maintain that lifestyle, the loss of economic opportunity, and any other factor that a court deems relevant.
Like child support, a court can also deviate from the alimony formula in certain circumstances. This can be done during the divorce through a temporary order, at the time of the divorce, or when modifying an existing alimony order based on a change in circumstance. The court will entertain arguments for deviating from an alimony amount, and will conduct an analysis based on the factors discussed below.
Courts may review the age and health of the parties (noting any atypical health circumstances that can affect either party), as well as whether the paying spouse is providing health insurance and the cost of same. The court will also consider financial factors, such as sources of unearned income, including capital gains, real estate appreciation, interest and dividends, and annuity and investment income from assets that were not allocated in the parties’ divorce. The court may also perform a tax analysis to consider the effect of tax deductible alimony payments on each party.
A judge may also look to additional factors, such as significant premarital cohabitation that included economic partnership or a marital separation for a significant period of time. The court considers why the recipient is unable to provide for his or herself; this may due to deficiency of property, maintenance, or a lack of employment opportunity; however, this may also be credited to a more severe situation in which a party’s inability to provide for his or her own support due to the physical or mental abuse by the paying spouse. Destabilizing life events like job loss, inconsistent or insufficient housing, and child-related issues and challenges can also factor into a judge’s decision to deviate upward from the formula.
Like the Child Support Guidelines, the Act also includes a “catch-all” provision for judges to deviate from the formula in his or her discretion. The judge may, upon entering written findings, consider any other relevant factor to deviate from the alimony cap that he or she deems relevant and material. This permits parties to present reasons and factors for deviation, such as unusual life events that are no considered directly by the statute. Although this provision gives courts broad discretion to deviate in setting alimony, most judges only exercise this discretion rarely. (We recently attended a round table conference with five judges of the Probate and Family Court in which the majority of judges indicated they had never deviated from the formula.)
In the modification context, another area of deviation is the duration of alimony, including the length and termination date of the payments. Under the Act’s formula, the duration of alimony is generally limited by the length of the marriage – as defined as the date of the marriage until the date of service of the Complaint for Divorce – with longer marriages generating longer alimony terms. The Act allows judges to deviate from the time limits for “good cause shown”. Although the Act neglects to outline the circumstances when an extension of alimony duration is warranted, many of the same situations that could justify an alimony amount that exceeds 35% of the difference between the parties’ incomes could also provide grounds for a durational extension. These circumstances could include unusual medical situations involving a party, unpredictable life events, the ages of the parties at the time of the divorce, or the paying spouse’s receipt of passive income that enables the spouse to earn income without working past retirement age. Again, like the Child Support Guidelines, a judge must enter written findings explaining the reasons for a durational deviation.
While it may seem like there are broad grounds to argue for an upwards or downwards deviation, in practice such deviations are actually quite rare. Judges will often defer to the basic calculations, and will scrutinize any reason to deviate carefully. It is imperative that a party requesting a deviation – whether in amount or time – is aware of the rules, facts, and how the court will view this request.
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About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts.