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Alimony |
What is Alimony? |
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Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned
the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse
to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough
income to do so.
There is not currently any formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation
of alimony. The amount of alimony is dependent on the consideration of all of the factors described in
M.G.L. c. 208 Section 34. You should consult an attorney
to discuss how the facts in your case fit the factors of Section 34.
Some states use formulas to calculate presumptive alimony. And notwithstanding Section 34, some Judges in Massachusetts have
suggested doing the same in Massachusetts. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar
Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible.
Although the Court has no obligation to follow these formulas they can be a valuable resource in helping parties
understand a reasonable potential range of spousal support orders. Attorney Kelsey, in a joint project with Attorney
Scott R. Stevenson, Esq. of Hingham, Massachusetts, has created the Divorce Spousal Support Calculator which includes all
of these formulas and can be accessed at http://www.kelseytrask.com/spousalsupport.htm
The sources for each formula are referenced in the accompanying article which can be accessed at http://www.kelseytrask.com/Docs/SpousalSupport.pdf .
Below we have provided answers to many of the common questions that we are asked by our clients involved in alimony disputes.
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
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How long will I get Alimony for?
How long do I have to pay Alimony for?
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Alimony ends upon the remarriage of the Recipient, or the death of either party. Alimony can end earlier depending on the circumstances of the case.
The duration of alimony is dependent on many factors including but not limited to the length of the marriage, the needs and employability of the parties,
the age of the parties, and the health of the parties.
Some of the people that have suggested formulas for calculating the amount of alimony have also suggested formulas for the duration of alimony, or at least
a maximum duration.
Although the Court has no obligation to follow these formulas they can be a valuable resource in helping parties
understand a reasonable duration of spousal support orders. Attorney Kelsey, in a joint project with Attorney
Scott R. Stevenson, Esq. of Hingham, Massachusetts, has created the Divorce Spousal Support Calculator which includes all
of these formulas and can be accessed at http://www.kelseytrask.com/spousalsupport.htm .
The sources for each formula are referenced in the accompanying article which can be accessed at http://www.kelseytrask.com/Docs/SpousalSupport.pdf .
Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of
alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material
change in circumstances that warrants a change in the order.
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What is included in income for calculating Alimony?
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The award of alimony is governed by M.G.L. c. 208 Section 34, which gives the
Court authority to consider all sources of income, and even attribute income if a party is not living up to their earning capacity.
For a list of the types of income included in calculating child support, all of which would likely also be considered when awarding alimony
check out page 2 of the Child Support Guidelines available at
http://www.mass.gov/courts/childsupport/guidelines.pdf .
Income can include income not recognized or taxed by the IRS and if you are unsure of what should or should not be included
you should consult with an attorney.
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Does a second job count in calculating Alimony?
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The Court can discount a second job or overtime income (fully or partially), but this is just one of the factors to be compared to all of the
factors contained in M.G.L. c. 208 Section 34.
If the second job was started only after an alimony order was set, then often it
won't be considered in adjusting future orders. |
Is Alimony tax deductible?
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| Alimony is income to the Recipient and should be included as taxable income on the Recipients state and federal income tax returns.
Alimony is tax deductible to the Payor, and sometimes even payments made on behalf of an ex-spouse, such as health insurance payments
may also be tax deductible. You should consult with an attorney to discuss the specific facts of your case if you think you might
be making other payments which could be tax deductible as well.
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| Does Alimony Stop at Retirement? |
In Massachusetts, alimony does not necessarily end upon retirement. Although retirement does typically represent a material
and significant change in circumstances, warranting a Modification, whether or not alimony will end or be reduced is still dependent
on all of the statutory factors. In a decision published on November 9, 2009, the Massachusetts Supreme Judicial Court rejected a Husband's argument
that his alimony should end upon retirement.
Rudolph F. Pierce vs. Carnecie G. Pierce, SJC - 10381, Nov. 9, 2009.
In the Pierce case, the Husband had agreed to an alimony order of $110,000 per year after a 32 year marriage, and had voluntarily retired at age 65.
Upon retirement, the Husband filed a Complaint for Modification seeking the elimination of his alimony.
The trial Judge reduced the alimony to $42,000 per year but declined to terminate alimony.
The Pierce appeal centered around the Husband's claim that there should be a presumption that alimony ends upon retirement.
Without that presumption, the Husband argues, the person receiving alimony has the right to essentially "veto" the retirement choice.
The Court rejected this argument, stating that the Judge's decision was within her discretion, and that retirement is only one of the factors in
deciding what an alimony order should be. In answering the Husband's argument that this creates a "veto", the court dances around the issue by
stating that the alimony judgment "eventually will need to be reduced," but that "the supporting spouse, even after reaching a customary retirement age,
in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient
spouse weather difficult financial circumstances.
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