USA – MASSACHUSETTS Trends and Developments Contributed by: Caterina S Wurman and Madeline R Pelagalli, Fitch Law Partners LLP
Massachusetts courts do have discretion to effective ‑ ly increase the length of the marriage, and thereby length of the durational limit, when there is evidence that the parties lived together and shared an econom ‑ ic partnership prior to the marriage. Likewise, courts may consider a marital separation of significant length prior to divorce to effectively decrease the length of the parties’ marriage (and thereby the durational term limit of alimony). If a court were to award alimony to a spouse in excess of the above-mentioned time limits, the court is required to find that the deviation is in the interests of justice. In addition to the durational time limits applicable to general term alimony awards (as set forth earlier), the ARA also provides that general term alimony awards terminate upon remarriage of the recipient, the death of either spouse, or upon the payor attaining full retire ‑ ment age – whichever comes first. Full retirement age is defined as the payor’s normal retirement age when they are eligible to receive full Social Security retire ‑ ment benefits. Even if a payor spouse has the ability to work beyond retirement age, that alone is not a reason to extend alimony. Courts retain their discre ‑ tion, however, to: • set a different alimony termination date (other than retirement age) when entering an initial court order; or • extend an existing alimony award beyond retire ‑ ment age, provided the recipient spouse can demonstrate a material change of circumstances occurred – which must be supported by clear and convincing evidence – after the entry of the ali ‑ mony judgment. In either case, courts are required to enter written find ‑ ings of the reasons for deviation. However, the Mas ‑ sachusetts Supreme Judicial Court has ruled that the retirement provisions of the ARA apply only pro ‑ spectively, effectively barring modifications due to the retirement provisions under the ARA for those alimony judgments entered prior to the enactment of the ARA. While remarriage of the recipient spouse will terminate both general term alimony and rehabilitative alimony, it will not cause a termination of reimbursement or tran ‑ sitional alimony. The ARA provides for the suspension,
reduction or termination of alimony upon a showing that the recipient spouse is cohabiting with another person (or sharing a common household) for at least three months. It is the payor/supporting spouse’s burden to demonstrate that the recipient spouse has maintained a common household with another person for a continuous period of at least three months. It is unclear whether the cohabitation context is limited to romantic partners only. The ARA also includes guidelines for the amount of alimony awards and provides that, generally speaking, alimony awards (except for reimbursement alimony or deviations of other forms of alimony) should not exceed the recipient’s need or 30% to 35% of the difference between the parties’ gross incomes at the time the order issues. These guideline percentages were established at a time when the applicable tax laws provided that the payment of alimony be tax deductible to the payor and taxable income to the alimony recipient. Although the language in the ARA remains unchanged, the guideline percentages have, in practice, been reduced as a result of the implemen ‑ tation of the Tax Cuts and Job Act, which provides that alimony is no longer taxable to the recipient or tax deductible to the payor. As a result, practitioners and judges generally operate under the assumption that the percentages to be used in each case are in a lower • capital gain and dividend/interest income that derives from assets equitably divided in the divorce; and • gross income that has been considered for setting a child support order. Again, in the case of general term alimony or rehabili ‑ tative alimony, the court retains discretion to deviate from this guideline with written findings that deviation is necessary. Moreover, courts may attribute income to either party who is unemployed or underemployed. If a payor spouse remarries, additional income and assets of the payor’s spouse are not considered in adjusting a prior alimony award in a modification action. range than what is provided by the ARA. Notably, the ARA excludes from income:
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