Debunking Alimony Myths in Massachusetts

Alimony is support paid directly from one spouse to another after divorce. It is a common concern for most Family Court litigants in Massachusetts. Inevitably, clients want to know if they will have to pay alimony, if they will receive alimony, and how long they will either pay or receive alimony. Those questions are not easy to answer under Massachusetts law as it now stands, but this article will help to clear up some of the biggest “Alimony Myths.”

Myth 1: Men Always Pay / Women Always Collect

The alimony law in Massachusetts is worded in a gender neutral manner. Present payment of alimony is only due if one spouse shows need, and the other spouse has the ability to pay. So, the financial circumstances of both parties are considered when deciding whether present day alimony will be paid. Both parties have to file financial statements with the court that list their incomes, assets, needs and liabilities. It is important that the statements are accurate so that a fair assessment of alimony applicability can be done.

Myth 2: There is an “Alimony Calculation” in Massachusetts

There is absolutely no sure fire way to calculate the amount of a potential alimony award in Massachusetts. Unlike child support, which is mathematically devised under a legislated guideline with few variations, there is no firm “alimony calculation.” The court has wide discretion in deciding how much an alimony award should be. Thus, if your case goes to trial and a judge makes a decision on alimony, it is unlikely that it will be overturned on appeal. Different judges have different conceptions about what is “fair” regarding alimony, so it is good to know your judge and his or her leanings.

There are certain factors that are routinely considered when determining whether a present alimony award is appropriate, and then how much the award should be. If one spouse earns significantly more money than the other (whether they are male or female) an alimony award to the lesser earning spouse may be appropriate. However, there are many other factors specifically listed in the law that have to be considered as well. Massachusetts General Laws, Chapter 208, Section 34 lists them as follows: “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 and the opportunity of each for future acquisition of capital assets and income.”

Also considered is whether there is a child support payment running from one party to the other. This plays hand-in-hand with the “one spouse has need, one spouse has ability to pay” concept mentioned earlier. If (in a typical situation) Husband is paying to Wife child support that leaves Wife with more disposable income than Husband has in any given week, Husband may not have a current obligation to pay alimony on top of child support. If Husband still has a great deal of disposable income left after paying support, and Wife is a candidate for alimony under the above described factors, then Husband may pay alimony as well as child support.

As you can see, alimony in Massachusetts must be evaluated on a case by case basis taking into consideration the unique financial situations of the parties. While a formula for calculation would be helpful to attorneys and litigants alike, none exists, making a sure answer to the question “How much will I have to pay/get?” difficult.

Myth 3: I Will Have to Pay (or I will get) Alimony Forever

Alimony terminates upon the death of either party or the remarriage of the person receiving alimony unless otherwise agreed to by the parties. Of course, people often agree to different terms depending on the circumstance of their case. Alimony can also be modified if a substantial change in circumstance takes place. For instance, if Husband gets alimony because he is unemployed at the time of the divorce but becomes full time employed a year later, that may be a change in circumstance that substantially alters the appropriateness of the alimony payment. If Wife is ordered to pay alimony but loses her job, that may be a change warranting modification also.

It is extremely important to note that an ordered or agreed to obligation to pay alimony does not automatically stop with the change of circumstance. The aggrieved party must file a Complaint for Modification with the court to get relief. Even if the parties agree outside of court to alter the court order or agreement, the appropriate paperwork should be filed with the court to ratify the new agreement.

Myth 4: It is Foolish to Agree to Pay Alimony

Sometimes it is best to come to an agreement rather than have a judge decide your case. First, alimony outcomes are unpredictable and vary from justice to justice. Second, if a case goes to trial in Massachusetts, a Family Court judge cannot order an absolute, permanent waiver of alimony for either party. Even if a present day award is found to be inappropriate, the court will leave alimony “open” for both parties in case there is a substantial change of circumstances in the future. The parties can agree to waive alimony in exchange for mutual promises (i.e. both will waive alimony permanently, one party will waive alimony in exchange for a larger slice of the marital pie, etc.), but a judge cannot order such a waiver. Sometimes the devil you know is better than the devil you don’t know. I encourage agreements on alimony and alimony waivers whenever possible.

Judges in Massachusetts cannot order alimony for a specific period of time. For instance, they cannot order short-term alimony, sometimes called “rehabilitative alimony,” for a period of time to allow the receiving spouse to get his education and re-enter the work force. Parties can agree that alimony will run for a certain period of time though. You have much more control over your future financial well-being if you can broker a settlement on alimony terms.

Another reason to make a settlement on alimony regards tax consequences. Alimony payments are tax deductible to the paying spouse, and taxed as income to the receiving spouse. Child support is neither deductible to the paying party, nor taxable to the recipient. So, if a Husband is to pay child support as well as alimony, parties may agree to lessen the child support and make the alimony award larger to make paying the alimony more palatable to the Husband. Tax consequences of the payment and receipt of alimony should always be considered when negotiating an alimony settlement.

If you have questions about alimony, please feel free to contact me at 866-414-0400 or via e-mail at jac@parkerscheer.com. I am glad to help.

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