ALIMONY & SPOUSAL SUPPORT 

When a marriage ends, one person often provides continued financial support to the other in the form of payments called “spousal support” or “alimony.”  Traditionally, it was the husband who paid alimony to the wife, but with the rate of dual-income and same-sex couples, support is generally paid by the spouse who earns a healthier income.

Spousal support or alimony payments can be temporary or permanent.  Temporary alimony ends after a certain period of time – generally after a period long enough for the recipient to rebuild, or “rehabilitate” himself or herself financially.  Permanent alimony awards usually cease when the recipient remarries, either party dies, upon retirement of the obligor, or at some other point when the court orders that one party has prevailed on a Complaint for Modification showing a substantial change in circumstances.

In Massachusetts, the granting of alimony is essentially authorized by statute – as found in General Laws Chapter 208, Section 34 and 37.   In Section 34, the Probate and Family Court is authorized to make a judgment for either of the parties to pay alimony to the other as long as there is personal jurisdiction over the parties.  Moreover, the Massachusetts Probate and Family Court has such authority whether the divorce has been adjudicated in the Commonwealth or another jurisdiction. 

As complicated as the statute may sound, the main issue will typically be a comparison of the payee spouse’s claim of need and the obligor spouse’s ability to pay.  The typical business owner, or a $250,000 per year executive can expect to pay a substantial amount of alimony to his or her divorcing spouse who has failed to work outside the home during a 20-year marriage – especially if they have sacrificed a career to stay home and raise the children.  In those cases where both spouses have a successful career with roughly equalized incomes, it is unlikely that alimony would be awarded.  To assess your own situation, go to our Alimony Calculator.

Our attorneys have found the most room for argument with respect to spousal support occurs where:  there has been a relatively long marriage (ten years or more), there is no child support order, the parties are approximately the same age, each party has made relatively equal contributions (financial or otherwise) to the marital estate, the spouse seeking alimony expects a substantial inheritance which is deemed to be imminent, or either the obligor or payee spouse has entries on their financial statement which exaggerate either their need or ability to pay.

The court may also make a finding that one spouse is either voluntarily underemployed or purposely unemployed.  In those cases, the court may attribute income to said spouse.  Both child support and alimony are based on what that spouse could be earning based on their background, education, experience, and training.

Case Law – Alimony & Attribution of Income

In the proper circumstances, “[a] judge is not limited to a party’s actual earnings but may…consider potential earning capacity” when attributing income.  Heins v. Ledis, 422 Mass. 477, 485 (1996).  Attribution of income is particularly appropriate when a judge determines that a party (most often the primary earner and support provider) is voluntarily earning less than he or she is capable of earnings through reasonable effort.  Kelley v. Kelley, 64 Mass. App. Ct. 733, 741 (2005).  Similarly, “[a]ttribution of income may be appropriate when a judge determines a career change is voluntary.”  Flaherty v. Flaherty, 40 Mass.App.Ct. 289, 291 (1996).  

In the statute referenced above, the factors considered by a Judge in an alimony hearing are the same as those in a property division dispute.  Go here to learn what the factors are.

Quite often, the divorce lawyers and family law attorneys at our firm will utilize discovery methods, such as document requests or taking depositions, in order to aid us in arriving at the truth as to one’s need or ability to pay. 

Alimony issues are highly contested.  The spouse who is planning for, or in the midst of a contentious matter ought to review case law as it relates to one’s need for support, ability to pay, station in life; issues relating to ending alimony, and termination at retirement age or after a certain time period; alimony after remarriage or cohabitation, or alimony as it relates to one’s inheritance.

Our attorneys have zealously advocated, on both sides, of various alimony arguments.  Even after support is awarded, it’s important to recognize that alimony is subject to review and can be modified or terminated in the event of a changed circumstance to either person.  The degree of the changed circumstance often relates to whether the terms of the support merged into the Divorce Agreement or survived as an independent contract.  Learn More

The family law attorneys at Massachusetts Flat-Fee Divorce Attorneys provide legal advice and services for people seeking an uncontested resolution to their divorce.  For more information, contact us.

For a more aggressive approach to alimony, contact The Massachusetts Family Law Group by calling (800) 910-DIVORCE or contact us to set up a no-obligation consultation.