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Guide to Alimony and Spousal Support in Massachusetts

Alimony Lawyers in Boston and New Bedford, MA

Spousal support (alimony) is an important and highly complex area of family law.  Spousal support is often referred to as alimony, and these terms mean the same thing. Many courts use the term “spousal support”, but Massachusetts still refers to it as alimony. In the context of divorce and separate support actions, alimony means that one spouse pays money to the other spouse to assist that spouse with his or her expenses.  Generally, spousal support may be ordered in two kinds of cases, divorce proceedings and separate support proceedings.

There are two times when the trial court may order spousal support, during the pendency of a case or at the end of a case.  The trial court will analyze and order spousal support differently during the pendency of a case than it will at the conclusion of a case.

When a party files a motion seeking the court order spousal support during the pendency of a case, this is called “temporary” spousal support, or “pendente lite” spousal support.  Either party may file a request for spousal support as soon as a divorce petition is filed by either party.  The court will base an award of temporary spousal support on the supported party’s need for support and the supporting party’s ability to pay.  Typically these temporary spousal support motions are accompanied by a declaration, or affidavit, setting forth the grounds why a pendente lite spousal support award should be given or denied.

If the parties are able to resolve their case by an agreement they can reach terms on the amount of monthly spousal support, the length of time spousal support is paid from one party to the other, and any other considerations.  If the parties are unable to reach agreements on the terms of a permanent spousal support order, then the trial court must consider all the relevant spousal support factors which are set forth in M.G.L.A. c. 208 § 53.  The Bristol or Plymouth county trial court judge cannot decide that he or she does not want to consider ordering spousal support if it has been raised by a party.

The Massachusetts General Laws (Chapter 208 and Section 53) set out the factors that the court will consider, which include:

  • the length of the marriage;
  • age of the parties;
  • health of the parties;
  • income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary;
  • economic and non-economic contribution of both parties to the marriage;
  • marital lifestyle;
  • ability of each party to maintain the marital lifestyle;
  • lost economic opportunity as a result of the marriage; and
  • other factors as the court considers relevant and material.

The last factor, the “catch all”, leaves open the possibility that the the court may consider, in its discretion, anything else it might deem relevant when ordering spousal support including each party’s contribution to the attainment of the respective estates and the contribution of a party as a homemaker.

The court may order alimony in the form of property, and the court must consider the present and future needs of children when fixing the property ordered as support.

WHAT IS CONSIDERED “INCOME” FOR PURPOSES OF DETERMINING ALIMONY?

The court will consider all income from every source of the spouse obligated to pay alimony.  In Massachusetts, this even includes monies received by inheritance.  This also includes traditional sources of income including:

  • Salary and wages
  • Investment income and dividends
  • Bonuses
  • Stock and stock options
  • Restricted stock units
  • Commissions

In situations when the court finds that a party has intentionally decreased or understated his income during a divorce case, the court may reach its own conclusions about what the actual income of the party is based on the testimony and evidence.

The court may also consider a party’s health conditions that may affect his or her ability to earn.

One particular problem that surfaces in many cases is where an obligor spouse has fluctuating or seasonal income from their employment.  In these cases, the court can assess spousal support on a percentage of all income received on a weekly or monthly basis.

Finally, the trial courts are also allowed to consider the new spouse’s income when determining spousal support, since that person’s income presumably contributes to the living expenses of the obligor spouse.

ANALYZING THE DIFFERENCE BETWEEN SPOUSAL SUPPORT AND PROPERTY DIVISION AT DIVORCE

While M.G.L.A. c. 208, § 34 provides the same factors for alimony (spousal support) and property division at divorce or in a separate support action, the attorney’s planning must go far beyond a simple analysis.

The trial court is allowed to order one party to provide part of his or her estate to the other party; the court is allowed to order alimony; and the court is allowed to assign certain property to each spouse; and the court is allowed to order both spousal support and assignments of property.  As a result, the court must receive a comprehensive and equitable proposal for the division of property and for the support of the spouse in need.

Some important considerations that go beyond a simple analysis include:

  • While spousal support orders are subject to review and modification, property division orders are final and cannot be modified.
  • Spousal support orders terminate at a date defined in the future based on the length of marriage (so long as the marriage is under 20 years; if the marriage is more than 20 years then spousal support may continue forever).
  • If a supported spouse remarries, any spousal support order would terminate.  As a result, a party may want to consider that if they provide spousal support rather than property, there is a chance the spousal support obligation could terminate prematurely.
  • Spousal support rights terminate at the death of either party.  Property is final and is included in the estate of the deceased.
  • A parties’ filing of bankruptcy could be an important consideration.
  • There may be different tax consequences involved.  For example, receipt of alimony is taxable income to the recipient and tax-deductible for the person that pays.  Property may be divided upon divorce as a “non-taxable” event.
  • The present value of future earning potential is not a “current asset” that the court will divide in divorce.
  • The court’s analysis differs with respect to alimony (which focuses on needs and income) and property division (which focuses on financial and non-financial contributions during marriage).

ORDERS FOR DIVISION OF PROPERTY IN LIEU OF ALIMONY (SPOUSAL SUPPORT)

Pursuant to M.G.L.A. c. 208 § 34 and 34A, the probate court is allowed to order the division of property instead or in lieu of all or part of spousal support.  This statute is in line with the 2012 reforms concerning permanent spousal support in Massachusetts and the Uniform Marriage and Divorce Act.

The probate court judge is allowed to review the financial circumstances of both parties to the divorce case and order that a spouse is to be provided for by his or her property rather than monthly financial support.

If the judge orders real estate to be conveyed or released to the other party, such a judgment operates to vest title in the party entitled to the property when the divorce judgment becomes absolute (i.e. after the “nisi” period has run).

TEMPORARY OR PENDENTE LITE SPOUSAL SUPPORT AND ALIMONY

The family law judge in the probate court is authorized to order temporary, also called pendente lite, spousal support when a divorce action or separate support action is filed.  (M.G.L.A. c. 208, § 17).  The parties must file the appropriate financial statements providing the court with the relevant financial information so a decision can be made based on facts as opposed to speculation.

Broadly, the court looks at the requesting party’s need for temporary spousal support and the other party’s ability to pay when considering motions for pendente lite alimony.  The law and analysis is the same for orders for temporary spousal support and attorney fees motions for allowances to maintain and defend the action.  Such motions may be brought at the very beginning of a divorce or separate support case filing.

The document filed should be fact-specific and is called a Motion for Allowance of Temporary Spousal Support, or some similar verbiage.  The requesting party should be sure to provide an affidavit to the court setting forth all the expenses that he or she must pay during the pendency of the proceeding, including things like mortgage or rent, health insurance, homeowner’s insurance, necessities like food and groceries, water and telephone bills, and other monthly or weekly expenses.

RESPONDING TO MOTIONS FOR TEMPORARY SPOUSAL SUPPORT AND ALIMONY

When a motion for temporary spousal support has been filed during the pendency of a divorce or separate support action, the responding party would be wise to prepare and file a response setting for the factual reasons and points of law as to why temporary support should not be ordered.  While there is no requirement of law that states that a responding party must answer to such a motion in writing, it is advisable to file a written and well-reasoned responsive statement of opposition.

When a motion of any kind is filed in the family and probate court, there is generally very limited time to stand in front of the judge and make arguments.  Efforts to file a written affidavit and memorandum of law are the best use of time.

The responsive pleadings should set forth the reasons that the motion for temporary spousal fails legally or factually, and should address the requesting party’s failure to state with specificity the request for relief as required by Mass.R.Dom.Rel.P. (7)(b)(1).

ATTRIBUTION OF INCOME BASED ON EARNING CAPACITY FOR SPOUSAL SUPPORT (ALIMONY)

When determining whether spousal support should be ordered in a divorce action, the court must consider the vocational skills and employability of each spouse.  This is an important consideration in the alimony litigation realm and an important tool for potential support obligors to use to help decrease or eliminate their alimony obligations.

When a spouse has no real or significant skills or employment opportunities there is a stronger possibility that spousal support will be ordered.  For example, if a spouse has been out of the work force for 15 years and would need training and re-certification it is likely that alimony will be ordered to allow that spouse to become self-supporting.

When a spouse does have the skills and vocational abilities to become gainfully employed, but chooses not to, there is little to no need for alimony.  Of course, as discussed under the property division sections of our website, the court can apportion the parties’ mutual property in the court’s discretion to allow the unemployed spouse some leeway before becoming self-sufficient rather than order spousal support.

Of course, the court should always consider the real employment prospects of the supported spouse.  For example, in a case where the wife had only prospective employment opportunities in the field of art education, the Court of Appeals found it was error to only award “rehabilitative alimony” to the wife.  She would need regularly recurring spousal support to meet the standard of living during marriage given her limited employment prospects.

Permanent Alimony – Limitations on the Term Length based on Length of Marriage

In 2012, the Massachusetts Legislature made significant changes to an antiquated set of permanent spousal support laws.  With these changes, limits were set on the amount of permanent alimony, or spousal support, that a spouse could receive upon their divorce.

M.G.L.A. c. 208 § 49 provides for these limitations.  The maximum time for payment of spousal support is as follows:

  • For marriages under 5 years: No longer than ½ the length of marriage;
  • For marriages between 5 and 10 years: No longer than 60% of the length of marriage;
  • For marriages between 10 and 15 years: No longer than 70% of the length of marriage;
  • For marriages between 15 and 20 years: No longer than 80% of the length of marriage.
  • For marriage longer than 20 years, there are no limitations to the length of time spousal support can be ordered.

However, the court may make findings that these statutory guidelines should not apply in a certain case.  This is an important rule if the facts of a particular case would make it extremely inequitable for the guidelines to apply.  Notably, most probate and family judges will not deviate from these guidelines for fear of an appellate reversal.  As a result, the guidelines are typically followed closely.

Further, when a former spouse begins cohabitating with a person for a period longer than 3 months in a dating relationship, a presumption that spousal support should be reduced arises.  Also, if the payor of spousal support retires, he or she may have their spousal support obligation terminated or modified.

THE IMPORTANCE OF NEED-BASED ANALYSES IN SPOUSAL SUPPORT ARGUMENTS

The needs of the parties are the most important factor in the court’s determination of whether spousal support should be ordered, as well as the amount of spousal support.  In a 1975 article that is often cited regarding the importance that needs play into the alimony determination:

The court should be able to determine the actual extent to which a party can or cannot maintain his or her current standard of living without support.  It can then determine the most feasible way to adjust the rights of both parties, trying to maintain as closely as possible their preexisting standard of living while not unreasonably burdening either with a support order which will make it impossible for the contributing spouse to live in his accustomed manner.

The meaning of need-based alimony is grounded on the premise that a supported spouse should be financially independent from the supporting spouse.  The analysis also includes a look at the obligations that must be paid by each party, including debt and everyday expenses for necessities.

Factoring in the Needs of Children for Alimony Awards in Massachusetts

The trial courts in the probate and family division are allowed to consider the needs of children under M.G.L.A. c. 208, § 34, which is the code section that allows the court to order spousal support and also the division of assets.  The section states, “In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage.”

The theory behind this regulation seems to be borne from the obvious scenario – where a spouse has been a homemaker and raising children for a period of time and is awarded primary custody of the minor children, there must be some provision to award that spouse property to maintain the children’s standard of living and for the spouse’s maintenance given that he or she may not be able to maintain full-time, gainful employment.  When a spouse has been a homemaker for a period of time and will continue caring for minor children, they may require additional maintenance and support to enable them to obtain training and/or education so that they can become gainfully employed.

HOW CONDUCT OF THE PARTIES EFFECTS ALIMONY AWARDS

Many family law litigants beginning their divorce case often wonder the answers to the question of how does conduct during marriage effect the Probate and Family Court’s rulings in cases involving significant assets and alimony?  Many people often wonder if the issues are interrelated.  The short answer is that conduct during marriage can certainly effect how a family court judge ultimately decides to divide assets and award alimony.  And the issues are interrelated, but in unforeseen ways.

Although there are several Massachusetts General Law statutes that apply to the analysis to respond to this question, the two most important sections are Chapter 208, Sections 34 and 53.  Interestingly, “conduct during marriage” as a consideration factor only appears in the text of Section 34.  The “conduct of the parties during marriage” or any variation of that phrase does not appear in Section 53, which is the alimony statute.

Section 34 states, “…In fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each of the parties, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive.”

As a result of Section 34, in high asset divorce cases in Boston Massachusetts (and surrounding counties such as Middlesex and Norfolk), the court has the ability to fashion its property and alimony orders after considering what assets are going to be assigned to each party.  The recent shift in the law has been for the court to assign property to a supported party and reduce or eliminate the alimony award.  For example, if a supported wife would otherwise receive $5,000,000 worth of property in an equal division, the court may award $6,000,000 and reduce or eliminate alimony.

The court is permitted to order property conveyed from one or both parties to just one party to effectuate the example described above.  Under Section 34A, the court has the ability to award property to one party and force the other party to execute a deed of conveyance

Under Section 53, which is the alimony statute for divorce matters in Massachusetts, the court is not specifically required or permitted to consider the “conduct of the parties” during marriage when ordering alimony.  Interestingly, that language appears in Section 34 under the property division statute, but not in Section 53.  The factors that the court must consider include things like the standard of living during marriage, age and health of the parties, income and employability, and so forth.  So how can the court consider the conduct of the parties during marriage when ordering alimony?

First, Section 53 includes a “catch all” provision that allows the judge to consider any relevant fact when considering alimony.  Judges will usually never outright state that they are considering the conduct of the parties during marriage when considering alimony, but the clever judicial officers will find other ways to end up with the result they want.

Second, in situations where there are significant assets, such as real estate, investment properties, retirement accounts, stocks, bonds and mutual funds, bank and investment accounts, cash, or other assets, the court is permitted to think about the conduct of the parties during marriage and award additional (or fewer) assets to one party in place of alimony.  The effect of the interrelation between Sections 34 and 53 force judges that want to consider the conduct of the parties and order more or less alimony to instead just apply that analysis to the property division section.  Instead of ordering $10,000 per month in alimony, for example, the family judge could calculate the number of months that alimony would be paid (for example 24 months) and instead simply award that party an additional $240,000 in assets in property division.

In short, judges will consider the conduct of the parties during marriage when ordering alimony (or not) in high asset divorce cases, but they will never outwardly say that they are doing so.  They will find other ways, including ordering more or less property to one party, to reach their desired result.

One important consideration here is the tax consequences and finality of property division awards vs. alimony awards.

Alimony is tax deductible to the person that pays the alimony (there are several requirements for this) and taxable income to the recipient.  This means that if Party A pays $10,000 per month in alimony to Party B in a particular year, Party A gets to deduct $120,000 from his or her income that year, and Party B will have to claim $120,000 on his or her income and they will owe taxes on that amount.  But alimony is modifiable when there have been changed circumstances.

Conversely, when the court assigns property after a divorce trial that creates a final disposition that is not subject to modification.  This is an important concept in high asset divorce and property division cases in Boston, Massachusetts.

For a free consultation, contact our office today.  We are located downtown Boston in the Financial District and in downtown New Bedford on the South Coast.

CAN THE COURT ORDER ALIMONY TO A HUSBAND?

The law is very clear that alimony is not based on the sex of the parties.  Decades ago, it was not possible for a man to seek alimony from his wife.  However, in 1974 the legislature enacted M.G.L.A. c. 208, § 34, which did not distinguish between the sexes and eliminated the concept that a man had to support his wife.  The court was then authorized to award spousal support maintenance to either party.

Even if the legislature did not enact the statute allowing men to obtain spousal support, the United States Supreme Court case of Orr v. Orr (1979) 440 U.S. 268 held that the U.S. Constitution requires state statutes providing for alimony to be sex-neutral.

MODIFICATION OF ALIMONY ORDERS AFTER DIVORCE

Can Spousal Support Orders Be Modified?

Massachusetts statutory law allows a Probate and Family Court to award spousal support (alimony) upon divorce and to modify alimony orders at any time after divorce.  The court is allowed to modify a spousal support award that was previously entered in Massachusetts, as well as orders entered by courts of other states so long as the court has personal jurisdiction (i.e. the power to order somebody to do something) over both parties.

The Probate and Family Court’s power to modify spousal support is premised on the fact that the court has power over the obligor of spousal support to force them to pay.  The only way the court will have personal jurisdiction over a support obligor is if he or she was a party to the divorce action, or if the obligor is personally served with the action within the state, he or she submits to personal jurisdiction, or if the defendant/obligor is served outside of the Commonwealth but they are subject to the “long-arm” statute of the state.

Of course, since the law limits the amount of time spousal support will be paid following separation of parties for marriages lasting under 20 years, the courts will typically be extremely hesitant to order spousal support after such allotted time frames.

We can provide you with additional information relating to modification of divorce judgments for spousal support.  All you need to do is call our office or send us an email to schedule your free, private consultation.

EFFECT OF REMARRIAGE ON ALIMONY AWARDS

If I Remarry or My Ex-Spouse Remarries After Divorce, Does that Effect Alimony?

Many potential clients call us and wonder whether alimony (spousal support) payments will end upon the remarriage of the recipient spouse.  The answer is usually yes, although not in every case.

Under Massachusetts law, if a recipient of permanent spousal support remarries there is a presumption that spousal support ends.  Legally speaking, the remarriage of the recipient spouse creates prima facie evidence that the recipient spouse intends for the alimony to terminate.

There are exceptions.  For example, if the parties’ marital settlement agreement (MSA) or stipulated judgment provides that spousal support will continue even if the recipient spouse remarries, or if the alimony payments are “non-modifiable” under any circumstance, the payments are presumed to continue.

WHAT HAPPENS IF PARTIES DIVORCE AND THEN REMARRY EACH OTHER?

In the recent case of Ellen Duff-Kareores v. Christopher Kareores (2016), the Supreme Judicial Court determined that when parties marry for the first time, then divorce, and then remarry, the durational term for alimony may include the period of time the parties were married for the first time, any time the parties were living together, and the duration of the second marriage.  This is true notwithstanding the parties’ first marriage will have a divorce agreement and/or judgment.

For more information about the Kareores case, click here.

CAN THE COURT ORDER SOMEONE IN CONTEMPT OF COURT FOR FAILING TO PAY SPOUSAL SUPPORT?

The courts in Massachusetts have the power to hold a person in “contempt” for failing to pay his or her spousal support or alimony obligation as long as there is a valid order for spousal support and the party failed to pay.

If the parties merely had an agreement that one party would pay spousal support to the other, which was not made into a court order or judgment, the court cannot order the obligor in contempt for failing to pay.

M.G.L.A. c. 208, § 35 states that the “court may enforce judgments, including foreign decrees, for allowance, alimony or allowance in the nature of alimony, in the same manner as it may enforce judgments in equity.”  M.G.L.A. c. 208, § 34 states that the Probate and Family Court may enforce orders, sentences, judgments and decrees and to punish by contempt.

A contempt action may be civil or criminal.  Typically, contempt actions for failure to pay support are civil in nature.

One defense to a contempt action for failure to pay spousal support is an inability to pay.  The defendant in such a contempt action has the burden to prove he or she had the inability to pay spousal support.

Contact Our Experienced Boston Alimony and Spousal Support Attorney

Our firm is significantly experienced in spousal support and contempt actions. Because litigating spousal support is extremely complex, it is advisable for any litigant going through a case where spousal support is an issue to contact a qualified attorney for advice.  Our Boston family lawyers litigated hundreds of spousal support cases and we have settled hundreds more.

We are highly experienced and we can assist you with the proper advice to navigate through your case.  The Boston family law attorney team at Wilkinson & Finkbeiner, LLP offers a free, confidential meeting.  Call or email us today.  We have offices in New Bedford (508) 316-9720 and Boston (617) 795-3611.



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