By Dr. Lynne C. Halem, Director of The Centre for Mediation & Dispute Resolution, Wellesley, MA
On March 1, 2012, a new era dawns in the history of alimony law. Responding to varied groups advocating, even demanding, change, long-awaited reform has made its way through years of legislative debate. The new law is being heralded by many as a victory for justice; a smaller, less vocal group, decries the law’s ambiguities as well as its silence on key elements such as the intersection of alimony and child support. Barring actual revision of the law or further clarification of some sections, we will have to wait for precedence to be established; perhaps years of judicial rulings will be needed to provide consistency of thinking in place of possible confusion and misinterpretation.
Naysayers aside, let us look at the law’s key provisions:
Whereas alimony has long been defined as payments made by a spouse who has the ability to pay to a spouse who has the need for assistance, now the time period of such payments has been defined as no longer than:
- 50% of the years of marriages of five years or less
- 60% of the years of marriages between five and ten years
- 70% of the years of marriages between ten and fifteen years
- 80% of the years of marriages between fifteen and twenty years
An indefinite payment period may be ordered for marriages longer than twenty years. Moreover, judges may alter the above time periods by using judicial discretion to extend or reduce support based on case specifics. Modification may also be effected by agreement of the parties.
Causes for Stoppage or Termination of Alimony:
Alimony shall terminate upon the death of either spouse, the remarriage of the recipient spouse, or the paying spouse’s attainment of full social security age (generally somewhere between the ages of 66 and 67, not the age he or she actually retires).
Alimony may be suspended, reduced, or terminated in the event that the recipient spouse cohabitates “as if married” for a continuous period of no less than three months.
Clearly within these terms, variations abound. For example, although alimony ceases upon the death of the payor spouse, life insurance may be required to provide the recipient with a monetary replacement for the awarded alimony stream. And, too, there are a host of possibilities for effecting a cohabitation provision, including rejection of this prescription for modification, extension of the living together period before enactment, suspension of payment with resumption of support if the relationship breaks up, reduction of support amount to a greater or lesser degree, and, of course, the severest penalty of termination can be made better or worse by the actual provisions that lead to its enactment. For example, if alimony terminates after a two year cohabitation, the recipient is less “penalized” than he or she would be for a three month living together arrangement.
Alimony is calculated at 30% to 35% of the differential between the spouses’ gross incomes or the needs of the recipient spouse. “Need” is of course an elusive term subject to different interpretations.
The determination of alimony for couples with minor children poses a challenge to parties and the court alike. Parties and/or the court may need to undertake tax analyses of different computations, as well as to consider termination dates and formulaic adjustment, where necessary, for modifying formulas if one form of support stops, decreases, or even increases.
The law has changed but questions remain. Once again, mediation offers a rational, reasoned, and cost-effective approach to designing an alimony and/or child support order that answers the unanswered questions and sets forth for the court’s approval a future road map for the calculation of support. Likewise, mediation also provides an efficient and effective process for those seeking modification of existing orders. In order to avoid a stampede to court, the new statute has included special provisions to clarify eligibility and phased-in time periods for petitions for modification.
It is to be noted that this article has only addressed “General Alimony”, leaving “rehabilitative”, “reimbursement”, and “transitional” alimony for subsequent discussion.