Alimony Reform Act One Year Later: Early Lessons to be Learned

In an article appearing on page 39 of the July 29, 2013
issue of Massachusetts Lawyers Weekly,
Prince Lobel Domestic Relations Practice Group partner Anita W. Robboy
discussed the Alimony Reform Act, providing analysis and lessons learned in the
year since the Act took effect.

In the article, Anita noted
that there appears to be no consensus among judges and practitioners on how the
Act applies to certain fact patterns. Until the appellate courts have weighed
in with interpretations of the statute to clarify many issues, various
approaches will continue to prevail. Nevertheless, certain basic understandings
of the Act are emerging.  Among the bench
and bar there is clear recognition and acknowledgment that the Act allows for
some judicial discretion in determination of: type of alimony, amount,
duration, modification, reduction, or suspension and termination of alimony.  Attorneys should be prepared to present
proposed findings of fact, rationale, tax analysis, and proposed
orders/judgments at every stage of litigation, from motions for temporary
orders to pre-trial and trial memoranda.

The prevailing attitude of the
judiciary has been strongly influenced by the “Alimony Floor Remarks” to the
Massachusetts legislature, which preceded the submission of the Act.  The goals of the Act were set forth as
follows: “To modernize our outmoded alimony laws so they are fair, consistent,
clear, comprehensive and good law.”  The
Remarks declare the Act’s mission as follows: “today’s measure provides
simplified definitions to allow for a clear understanding of the alimony laws
for those married or contemplating marriage. 
It addresses the policies of self-sufficiency, retirement planning and
remarriage while protecting those who could not care for themselves on account
of age or health.  And the bill provides
clear guidelines for the probate court while retaining the court’s discretion
in the often disparate fact driven cases.”

The changes brought about by
the Act are succinctly stated in the Remarks as follows: (1) the delineation of
the types of alimony, (2) cohabitation, and its import, (3) the disallowance of
inclusion of a second spouse’s income in determining alimony, (4) the guidance
to judges for the termination of alimony by providing a date certain, (5) the reasons
for a judge to deviate from the guidelines, and (6) a schedule for modification
in the instance of existing court orders where payors are affected by the new
guidelines.

Anita’s article is intended to
offer a fuller understanding of the Act by analyzing each new section of
M.G.L.c.208 that has been altered or added by the Act. This article also provides
practitioners with “Lessons to be Learned”, including practice tips and
drafting suggestions. Some of those lessons include:

  1. The interpretation and application of the Act is an evolving
    process.
  2. Family and Probate Court judges are interpreting and
    applying the Act in various ways with respect to: the interplay of child
    support and alimony, the granting of deviations in duration and amount of
    alimony, the entry of unallocated support orders, and allowance of
    modifications of pre-Act and post-Act alimony awards.
  3. Counsel should be ready at every stage of litigation ( the
    temporary order hearing, the pre-trial conference hearing and at trial of
    divorce or modification) with proposed findings of fact, tax analysis and
    proposed order/judgment.
  4. G.L. c.208 Section 34, as amended, requires that the amount
    and duration of alimony be considered as a mandatory factor in determining an
    equitable division of the marital estate and therefore addressed first. Counsel’s
    pretrial memorandum needs to be organized to address each of the factors listed
    in Section 53(a) and Section 53(e) (1-9) relative to the type, amount, and
    duration of alimony. The memorandum must also address all the factors listed in
    Section 34, as, amended, with respect to the division of the marital estate.
  5. The “need” of the alimony recipient is always of paramount
    importance (except when reimbursement alimony is sought). Need must be evident
    from a review of the recipient’s financial statement. Alimony shall not exceed
    the recipient’s need or 30-35% of the difference in the parties’ gross incomes
    established at the time of the order being issued. 
  6. At the time of the original judgment, general term alimony
    durational time limits may be extended “in the interests of justice”. In
    marriages of 20 years or more, general term alimony may be ordered for an
    indefinite period of time. However, nothing in the Act requires judges to enter
    the maximum durational limit permitted by the guidelines.
  7. If deviation from the durational limits is warranted by the
    facts, counsel needs to raise all the reasons to deviate in the original
    divorce action. Deviations of amount and/or duration need only be proven by a
    preponderance of the evidence in the original divorce; whereas, requests for
    extension of existing durational limits must be proven by clear and convincing
    evidence in a subsequent modification action. Judicial discretion to override
    the guidelines in the Act is greater at the time of the original action than in
    the context of a post-divorce action as the court only needs to find it “in the
    interests of justice” by the preponderance of the evidence.
  8. In the original action, the court can order that alimony
    continue past full retirement age for ‘good cause’, proven by the preponderance
    of the evidence. 
  9. Elderly divorcing spouses in long marriages may be subject
    to harsh outcomes for the dependent spouse. Unequal division of the marital
    estate at the time of divorce may be warranted, particularly when the divorce
    occurs close to the payor’s retirement age. In such circumstance, the dependent
    spouse should argue for an unequal division of the assets and/or elongation of
    the durational limits for alimony.
  10. Where counsel for the recipient spouse anticipates that the
    payor may work past full retirement age, alimony should be tied to the payor’s
    employment status and/or earned income from full, part-time and consulting
    income after retirement. 

The full text of Anita’s article and all the lessons learned
appear on the Massachusetts Lawyers Weekly website
and is also available by clicking the PDF link below. The print issue of Massachusetts
Lawyers Weekly
dated July 29, 2013 features an abridged version of the article
on page 39.