Change is in the Wind
Massachusetts lawmakers overwhelming approved alimony reform legislation that may point the way to major reforms in the way judges award alimony. The alimony reform legislation replaced a very vague statute that gave judges a lot of discretion but not a lot of guidance.
The legislation, which took effect in March 2012, replaced legislation that many said was outdated and lagged behind the family law reform of most other states.
Family law practitioners believe that lifetime alimony that lasts “until death do us part” may be heading for the sunset. That old joke, “she got the mine and I got the shaft,” may become more and more a cultural relic in the age of liberalized divorce law that ignores gender. Like the Tender Years Doctrine, which presumes that during a child's tender years (generally regarded as the of age thirteen and under) the custody of the child should be that of the mother's, and the Maternal Preference, which tends to favor mothers in custody disputes, gender-based presumptions raise questions about equal protection under the law. Nevertheless, while alimony reform is under consideration in many jurisdictions, critical issues that proponents and opponents of alimony reform disagree upon include:
In Massachusetts, like many states, attorneys struggled during divorce negotiations trying to estimate alimony payments and the duration of alimony because there was no clear formula, unlike child support calculations. Under the alimony reform legislation, courts still have some discretion, but there is more certainty. Clear and certain numbers help not only the court, but also attorneys to negotiate a proper and fair settlement for parties.
The new alimony law provides for four different types of alimony: general, rehabilitative, reimbursement, and transitional. General alimony lasts if the marriage is:
Alimony terminates upon death, the remarriage of the recipient spouse and/or cohabitation of the recipient spouse with someone for three months or more. Alimony cannot be reinstated by a modification following the remarriage of the recipient spouse but can be reinstated following the breakup of the cohabitation. General alimony terminates upon retirement age of the payor.
Rehabilitative alimony lasts no more than 5 years initially but may be extended.
Reimbursement Alimony terminates upon death or a specific date but cannot be modified and is not calculated based on income.
Transitional Alimony lasts no more than three years and cannot be modified.
The amount of alimony will be 30-35% of the difference between the parties’ gross income.
In general, alimony reform focuses on what is called permanent alimony, which is support paid to the lesser earning spouse until the death of the payor, the death of the recipient, or the remarriage of the recipient. It is tax deductible to the payor and taxable to the recipient. The other forms of alimony – temporary, which is ordered when the parties are separated prior to divorce (also called alimony pendente lite which is Latin meaning "pending the suit”); rehabilitative, which is support given to a lesser earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient; and reimbursement, which is support given as a reimbursement for expenses incurred by a spouse during the marriage (like educational expenses) – are not the subject of reform efforts.
The 51 jurisdictions bring a number of factors and variety of considerations into play when awarding alimony, including:
“But judges are on their own in deciding how to prioritize the various factors and translate them into dollar amounts, resulting in wildly inconsistent alimony awards,” writes Alexandra Harwin in a recent New York Times op-ed essay, “Ending the Alimony Guessing Game.” She cited an Ohio survey where judges estimated that a lifelong homemaker married to a doctor should be awarded as little as $5,000 a year and as much as $175,000.
Other States, Other Changes
Some states - Florida, Texas, and Maine - are moving away from permanent alimony awards that are intended to maintain a spouses' standard of living enjoyed during the marriage and are moving towards durational or rehabilitative alimony. A few states - Mississippi, Massachusetts and Tennessee - allow lifetime alimony, but most are moving away from it.
In addition to Massachusetts, lawmakers in Pennsylvania, Oklahoma and New Jersey are attempting to change alimony law. Maine, a "no-fault' divorce state, provides that for marriages or civil unions of between 10 and 20 years, alimony is limited to a period equal to half the length of the marriage. In Texas, another no-fault state, alimony is limited to a maximum duration of three years in marriages or civil unions less than 20 years.
Cohabitation after divorce seems to be an area where lawmakers agree to reform alimony. California, Connecticut, Georgia, Illinois, Oklahoma, New York, South Carolina, Tennessee, Utah, and West Virginia have laws that allow for the modification or termination of alimony when the recipient is cohabitating. In April 2009, the Governor of New Jersey, Jon Corzine, signed into law changes in the alimony statutes for his state that would bar alimony payments to parents who kill, abuse, or abandon their children.
Resources & Tools
TAXABILITY – When it meets IRS guidelines about the terms and conditions of payment, alimony is deductible to the payor and taxable to the recipient. Requirements for this tax treatment include explicitly labeling the payments as spousal support in the divorce decree and requiring the spouses to live apart while receiving support and terminating the payments when the recipient spouse dies.
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