Massachusetts Divorce Resources
From the Law Office of Robert P. Murray
©2004 ALL RIGHTS RESERVED
Robert P. Murray, Esquire
- What is alimony?
- How long is alimony paid?
- Will I be ordered to pay alimony (or will I receive alimony)?
- How do the Courts determine alimony?
- What are the tax implications of alimony?
Marriage creates legal rights and obligations between two people — husband and wife. Among those rights and obligations is the right to receive support from and the obligation to provide support to the other spouse. Under certain circumstances, this particular right/obligation may extend well beyond the termination of a marriage by divorce, resulting in one party paying periodic or lump sums of money to the other to assist in his or her support. Spousal support — or more correctly: support of a former spouse — paid during a pending divorce and/or after a marriage ends — is called alimony.
Spousal support differs from child support in very significant ways. Child support will usually end upon a child’s reaching 18 years of age (except where a child continues to be principally dependent upon a parent, attends college, is disabled, etc. — in such instances, child support can be extended to the age of 23 years, and in the case of a disabled child, indefinitely). Alimony, on the other hand, is not necessarily geared to the passage of time (although it can be), and may continue indefinitely or to the death or remarriage of a party. Most significantly, alimony is usually tax deductible by the paying spouse and reportable as taxable income by the recipient spouse.
When is alimony appropriate? Alimony is likely to be ordered in circumstances where continued financial contribution to one of the parties by the other is appropriate — all depending upon the economic circumstances of the parties. In conjunction with alimony, one must give consideration to the division of marital assets between the parties at the time of divorce. A divorce court can make orders regarding the division of assets and can assign property owned by one spouse to the other in order to make the parties financial situation equitable. Such an order for the division of assets or the assignment of the property of one party to the other is NOT considered alimony (and, therefore, such divisions are not taxable transactions).
In addition to or in lieu of a division of assets, the court can enter orders of alimony where assets are insufficient to maintain one of the spouses. Therefore, alimony is concerned mostly with the continued needs of the respective parties.
In determining either a division of assets or an award of alimony, the court must consider several factors, none of which are controlling. These factors are:
- Length of marriage
- Conduct of the parties during the marriage
- Age of each party
- Station in life of each party
- Health of each party
- Occupation of each party
- Amount and sources of income of each party
- Vocational skills of each party
- Each parties’ employability
- Estates (property) of each party
- Liabilities of each party
- Financial needs of each party
- Opportunity of each party to acquire future capital assets or income
In addition, the court may consider, but does not have to, the following additional factors: the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.
You can imagine from the above that alimony orders are unlikely in the situation of the young couple, married only a relatively short time (less than 8 years or so), and both being fully employable. [Keep in mind that child support is a separate issue.] Alimony is always possible, however, if the other factors significantly outweigh the age, length of marriage and employability factors. On the other hand, alimony is likely in the typical situation where the parties have been married for more than 20 years, one of the parties has been the primary bread winner, and the other has remained at home, raising children and foregoing a career outside the home. In between these two extreme examples you can find all kinds of situations — and each one is different from another. Therefore, the matter of alimony is not governed by hard and fast rules — it all depends upon 1.) the division of marital assets and 2.) the needs of the respective parties in light of the above factors. Ability to pay alimony is also a factor considered by the courts since it is contained within the above factors, i.e. amount and sources of income and financial needs of the paying party. Again, there is no hard and fast rule when it comes to the issue of alimony, and each case must be decided on its own facts.
What about the absent spouse?
No order for alimony can be entered by the court if one of the parties is not subject to “personal jurisdiction” within the Commonwealth. In other words, although it is possible to obtain a divorce in Massachusetts when one of the parties is located elsewhere, no orders for alimony can be entered unless that party is personally served in Massachusetts with a notice of the alimony claim (Summons and Complaint) and a notice of the date and time of a hearing scheduled on this issue.
When is alimony ordered?
Although alimony can be ordered at the time of the final divorce — the court also has the power to order alimony at any time thereafter if it was not made a part of the divorce decree. If alimony was entered as a part of the divorce decree, any request for a change in alimony must be brought by means of a Complaint for Modification.
Length of alimony:
Alimony may be ordered for any length of time, depending upon the circumstances of a particular case. Occasionally, even in short-term marriages, short-term alimony is appropriate. This might occur when one party needs continued support in order to complete his or her educational program, especially when he or she has contributed to the educational program of the other spouse by working and supporting the family while the spouse was still a student. In that type of case, it is only fair and reasonable that the first spouse should be given the same opportunity at or to complete his or her education. Another frequently encountered set of circumstances warrants at least temporary or short-term alimony: where one party has been devoted to maintaining the household and raising children while the other has developed a career. The party remaining at home probably has a lower earning capacity. That party should be entitled to sufficient support while he or she develops sufficient marketability or employability.
It should be noted that, during the divorce proceedings, which may span many months, temporary orders for alimony may be ordered, with the final determination of alimony being made at the final divorce hearing.
Waiver of Alimony:
Either party to a divorce may waive alimony, if appropriate and permitted by the Court. Is this waiver permanent? No. It is possible to obtain alimony at a later time even if alimony was waived at the time of the original divorce. However, the party later seeking alimony will have to prove that a significant and material change in circumstances has occurred since the original divorce order entered and, in certain circumstances, that party must further prove that even more than a material change in circumstances has occurred. Consult an attorney on this very important issue of “Merger” or “Non-Merger” of divorce decree provisions.
In summary, the issues surrounding alimony, particularly the tax implications, are very significant and quite complex. Consult with a qualified attorney in addressing this matter.