Why mediate alimony?
The best way to resolve an alimony issue in a divorce is through divorce mediation. Divorce mediation takes place in the shadow of the law and the Massachusetts alimony law provides substantial guidance and direction to divorcing parties. Thus, alimony is a part of the divorce process where the spouses with the help of the mediator are very likely get to an agreement on this issue.
What is alimony?
Alimony in MA, also called spousal support, is when one spouse makes payments to the other spouse after the divorce. Alimony is gender neutral, meaning that either a male or female spouse may pay or receive alimony. The issue of alimony generally arises when after the divorce, one spouse will be unable to support himself or herself without assistance from the other spouse. Another way alimony can come up in mediation is when a higher-earning spouse needs to make payments to a lower-earning spouse with primary custody of the children, and it is more tax-advantaged to pay some alimony instead of higher child support. Alimony issues that arise in mediation concern whether alimony is appropriate, how much alimony should be paid, and how long alimony should continue.
Alimony in MA
Alimony Types: Massachusetts amended its divorce law regarding alimony effective March 1, 2012. Under the revised alimony statute (Massachusetts General Laws chapter 208 sections 48 – 55) four separate categories of alimony are defined:
(a) “General Term Alimony” – The periodic payment of support to a recipient spouse who is economically dependent. This is the most common form of alimony and it is typically based on a significant difference in incomes and earning ability between spouses.
(b) “Rehabilitative Alimony” – The periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time. This type of alimony is typically appropriate when a spouse will become educated or re-employed or job trained by a future date.
(c) “Reimbursement Alimony” – The periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years to “pay back” a spouse for his or her contribution during the marriage. This type of alimony would be appropriate in a situation where, for example, one party worked and supported the other party while the other party obtained a valuable graduate degree that would produce significant post-divorce income.
(d) “Transitional Alimony” – The periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years to transition the recipient spouse to an adjusted lifestyle or location as a result of the divorce. This type of alimony might arise in a situation where after the divorce one party needs to move to another state or country to be supported by family or to pursue a career, but needs help in making that transition.
Alimony Payment Amounts: Alimony decisions in a divorce are typically based on a number of factors including: length of marriage, age of parties, health of parties, incomes of parties, income differential, employment and employability, respective contributions to the marriage, marital lifestyle, homemaker status of a party, and some other considerations. Alimony payment amounts are typically in the 30 – 35 percent of gross pay or earnings range and alimony payment amounts should not exceed the recipient’s need. Alimony is typically paid weekly in a fixed dollar amount. When both parties work, the payment amount would typically be based upon the differential in the incomes of the parties.
For alimony calculation purposes, income is defined broadly and the alimony law uses the same definition of income as the Massachusetts Child Support Guidelines. Bonus or commission or incentive type income would typically be subject to alimony but earnings that come and go like bonus or commission income might only be subject to alimony if, as, and when that income is actually received.
Divorcing parties should be aware that there can be an interplay between property division and the payment of alimony. In some situations maybe a party that would otherwise be eligible for alimony will not receive alimony but instead will receive extra assets during property division.
Alimony Payment Duration – Massachusetts alimony law now contains duration limits that apply in General Term Alimony cases. Although a judge retains the authority to deviate from the alimony payment duration limits, most General Term Alimony will terminate as follows:
|Length of Marriage||Length of Payment|
|5 years or less||50 percent of length of marriage|
|more than 5 years less than 10||60 percent of length of marriage|
|more than 10 years less than 15||70 percent of length of marriage|
|more than 15 years but less than 20||80 percent of length of marriage|
|more than 20 years||indefinite|
The alimony statute provides that alimony orders “shall terminate upon the payor attaining the full retirement age” for Social Security benefits eligibility (full benefit age not the age 62 early retirement date). Alimony will terminate upon the remarriage of the recipient spouse. A Judge can deviate from the alimony time limits listed above if the judge determines that deviation from the limits is required “in the interests of justice”. A payor of alimony will often need to obtain life insurance to secure the alimony payments in the event of the payor’s unexpected death.
Alimony Tax Considerations – Alimony is federal and state income tax deductible for the payor but fully taxable as income for the recipient. This contrasts with child support which is not deductible to the payor and is not taxable as income for the recipient. A spouse who pays $400 per week in alimony will have more money left over after that payment than a spouse who pays $400 per week in child support because the payor gets no income tax deductions for the child support payment.
In cases where alimony is involved, we use state-of-the-art financial planning software to ensure that any payments between spouses are structured in the most tax-advantaged way possible.
Cohabitation and Alimony – When an alimony recipient lives together with another person post-divorce for a period exceeding 3 months and maintains “a common household” with that person (shared primary residence) then the alimony payment can be subject to suspension, reduction, or termination. The alimony statute lists factors that a judge may consider when determining if an alimony recipient is “maintaining a common household” and these factors include: verbal or written representations as being part of a couple, having a community reputation as being part of a couple, economic interdependence, maintaining a common household in furtherance of a life together, etc.
Alimony or Child Support – For most middle income families with children, a child support order is more common than an alimony order although a hybrid of both alimony and child support is also possible. In longer marriages with no children born and a substantial differential in income, alimony is likely and more common. Whether only child support is paid, or a combination of child support and alimony is paid, most likely the amount of the combined payment will still be less than 35 percent of the gross income of the payor.
Child support typically terminates when a child or children “emancipate”. Alimony typically terminates as per the alimony termination provisions described above. Note however that pursuant to the Massachusetts alimony statute, when an alimony payment follows in time after a child support order the combined payment periods for both the child support order and the alimony order should not exceed the maximum payment periods for General Term Alimony as described above.