Temporary Alimony Agreements Made During A Pending Divorce will be Enforced
Be careful what you agree to is the message laid down in D.B. v. J.B., a divorce case decided by the Massachusetts Appeals Court and ruled on March 17, 2020. In this case, the parties made an agreement before the final entry of their divorce and the appellate court ruled that this agreement should stand, resulting in a difference of over $1 million in less alimony payments to wife, per the agreement.
Background of the Case
The case involved a high net worth family, which consisted of a husband who made over $2 million a year and a wife who was the primary caretaker of the couple’s three children. The husband started his business career as a consultant but later opened his own investment firm. Although the wife had obtained a college degree and worked professionally before the marriage, the husband acknowledged that she made sacrifices with her career and was the primary caregiver of the children. She had also hosted dinners and attended fundraisers to develop the husband’s business relationships. At the time of the trial court’s decision, the wife had been out of the workforce for two decades.
After 15 years of marriage, the husband filed for divorce. A few months after filing his petition for divorce, the former couple agreed that the husband would pay $30,000 a month to the wife. This agreement characterized the payments as alimony and stated that they would be credited against the durational limit of any alimony order that was made as part of the divorce.
The husband paid this alimony for 37 months until a final judgment was entered in the case.
How Alimony Is Determined in Massachusetts: Overview
Alimony in MA provides post-divorce economic support of a spouse who was financially dependent on the other (payor) spouse during the marriage. It also allows the dependent spouse to maintain the lifestyle he or she had during the marriage.
The court must first consider the need of the dependent spouse for alimony, and the other spouse’s ability to pay. In other words, alimony is not always guaranteed. If both of these conditions are present, the court then considers a number of factors to determine whether to award alimony and in what amount. These factors include:
- The duration of the marriage
- Age and health of the parties
- Economic and noneconomic contributions made by the parties during the marriage
- Income, employment, and employability of the parties
- The lifestyle the parties enjoyed during the marriage and their ability to maintain it after divorce
- Lost economic opportunity as a result of the marriage or contributions
- Other factors the court considers relevant
However, in addition to these factors, the standard of living is also considered in determining financial need of the recipient of alimony. If determining need is difficult, then under the 2012 Massachusetts alimony statute, a guideline is given to consider, which is between 30 to 35% of the difference between the parties’ incomes (general term alimony). This calculation has shifted in recent years due to the federal Tax Cuts and Jobs Act (TCJA) of 2018 that eliminated tax-deductible alimony for new divorces starting on January 1, 2019. Therefore, cases in which alimony is ordered after January 1, 2019, since alimony is tax free money to the recipient and not tax deductible to the payor, the percentage difference in income can be 20-28 percent of the difference in the income earned by the payor and recipient.
General Term Alimony: How Long?
Massachusetts alimony law is clear regarding how long general term alimony must be paid by one spouse to the other. This durational limitation for marriages lasting under twenty years is based on the number of months you were been married: from your date of marriage to the date that the other spouse was served with the complaint for divorce. The amount to time alimony is paid is based on a percentage of the number of months of this calculation, which increases in five-year increments.
- For a marriage of 5 years or less: the duration for alimony is 50% of the number of months;
- For a marriage of between 5 to 10 years, 60% of the number of months;
- For a marriage of between 10 years to 15 years, 70% the number of months;
- For a marriage of between 15 years to 20 years, 80% the number of months.
For marriages greater than 20 years, alimony will be paid until the full social security retirement age of the payer spouse. Usually, full social security retirement age is between 66 years old and 68 years old. These are presumed duration limitations and can be pierced through by a judge. Of course, an alimony payer in Massachusetts can voluntarily agree to pay alimony for a longer period of time than the law requires.
Other Types of Alimony in Massachusetts
There are a few other types of alimony in addition to the above, for marriages of less than 5 years and for specific reasons:
- Rehabilitative alimony. Support paid regularly to an ex-spouse who’s expected to be able to support themselves by a predicted time.
- Reimbursement alimony. Support paid after a marriage of no more than 5 years, to reimburse a spouse for economic or non-economic support. An example of "Reimbursement Alimony" is if one spouse supported the other while they completed their education.
- Transitional alimony. Support paid after a marriage of no more than 5 years to help the spouse receiving alimony to become self-supporting. This is usually reserved for people who have been out of the workforce and require time to find employment.
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Original Massachusetts Probate Court Ruling
The trial court judge ordered that the husband pay the wife $60,000 a month in general term alimony until September 1, 2027, a total of 123 months of alimony. The amount represented 34% of the husband’s gross income. The judge did not credit the temporary alimony payments that the husband made for the 37 months before the final judgment was entered, and that husband and wife had previously agreed would be credited against the durational limit of any alimony order that was made as part of the divorce.
Massachusetts Appellate Decision
The husband appealed the case on several grounds. He first argued that the amount of alimony exceeded the wife’s need, even though it fell within the 30 to 35% range, citing the Alimony Reform Act of. 2011, which provides the following, in part:
"except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30 to35 percent of the different between the parties' gross incomes established at the time of the order being issued." M.G.L.c. 208, s. 53(b)
However, the court was "not persuaded" by the husband's argument that the wife did not need the amount of alimony as so ordered, and found that it was appropriate to view the need of the wife in light of the family’s affluence. The court cited Young v. Young:
"Where the supporting spouse has the ability to pay, the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage." Young v. Young, 478 Mass. 1, 6 (2017).
Additionally, the appellate court found that the trial court judge appropriately considered the parties’ circumstances, the wife’s background as a primary caretaker of the children, the wife’s education, her health and that the wife had been out of work for nearly two decades. The judge found that she was in “significant” need of support from the husband and that the temporary alimony was the wife’s only form of income at the time of the divorce. The appellate court found no issues with the judge’s assessment for this part of the case.
The husband argued that he should have received credit for temporary alimony payments he made for 37 months leading up to the divorce judgment as the parties had previously agreed. The appellate court agreed with this position, finding that the court should not substitute its judgment for that of the parties when they had voluntarily reached such agreement. The parties’ right to contract should not be erased simply because there is a case before the court.
The appellate court concluded that the agreement the husband and wife entered into and that became a temporary order should stand and that the husband should receive credit for the 37 months of temporary alimony he paid before the final judgment was entered against the order for 123 months of alimony. This represented more than $1 million in alimony payments.
The appellate court also said that the trial court could consider that the amount of temporary alimony payments were equal to half of the newly ordered amount when calculating a new alimony award.
How This Case May Impact Yours
Spouses may make temporary arrangements during their divorce while their case is pending. This may help you to share custody of your children, pay a mortgage on the family home or receive temporary economic support while the case is pending. If you enter into an agreement with your spouse while your divorce case is pending and this agreement is made into a temporary order, the terms of this agreement may alter the final divorce judgment. Therefore, if you / your attorney includes language that states any temporary alimony you receive will be credited against a final alimony award, D.B. v. J.B. affirms that a court will uphold that agreement.
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