No two divorce cases are exactly alike. Each case has its own set of facts and
circumstances that formulate the legal advice that an attorney provides to their client regarding a
divorce. The concerns and considerations that shape a fair outcome for divorcing parties in their
mid-thirties who have been married for six (6) years are vastly different than those relative to a
couple in their early sixties who have been married for thirty (30) years. In this series, we will
discuss the divorce laws in Massachusetts and the relevant considerations that impact what has
been coined as “gray divorces.”
Part 1: Alimony
In Massachusetts, alimony is defined as the payment of support from a spouse who has
the ability to pay to a spouse in need of support for a reasonable length of time. M.G.L. ch. 208,
section 48 The threshold question with respect to alimony is the “need/ability to pay” question.
First, does the potential recipient spouse have a need for support in order to maintain a lifestyle
similar to that which was enjoyed during the long-term marriage? An important document that
illustrates a spouse’s need for alimony is the Massachusetts Rule 401 Financial Statement that is
completed and updated frequently during a divorce in Massachusetts. It is imperative that the
“weekly expenses” section of the document is completed carefully and accurately. It should
encompass all of the living expenses that have historically made up the parties’ marital lifestyle.
Assuming that the potential recipient spouse has a need for alimony, the next question is whether
the potential payor spouse has the ability to pay alimony? A circumstance that may exist with a
couple in their early sixties that is not a concern for the couple in their thirties is that perhaps the
spouse who was the breadwinner spouse during the marriage has already retired at the time of the
divorce or, perhaps, their health is declining such that retirement is imminent. These factors
would impact a potential payor spouse’s ability to pay alimony.
Even if the payor spouse is still working and is deemed to have the ability to pay alimony
at the time of the divorce, alimony in Massachusetts does not continue forever. With our couple
in their early sixties, there is a very small window in which the recipient spouse will receive
alimony, based on the statutory terminating factors under Massachusetts law. Therefore, the
recipient spouse needs to plan their post-divorce finances accordingly. In Massachusetts, for a
marriage of over twenty (20) years (based on the date of marriage to date of service of the
complaint for divorce), alimony shall terminate upon the remarriage of the recipient spouse, the
death of either spouse, or the payor spouse reaching their full retirement age. Additionally,
alimony shall be suspended, reduced, or terminated upon the cohabitation of the recipient spouse
for three (3) or more months. M.G.L. ch. 208, section 49 For purposes of the Massachusetts
alimony statute, “full retirement age” is defined as the payor’s normal retirement age to be
eligible to receive full retirement benefits under the United States Old Age, Survivors, and
Disability Program. M.G.L. ch. 208, section 48
The statute states that the payor’s ability to work beyond full retirement age shall not be a
reason to extend alimony, provided that: a) when issuing the initial alimony judgment, the Court
may set a different alimony termination date for good cause shown (with findings by the Court to
support the same), and b) the Court may grant a recipient an extension of an existing alimony
order for good cause shown, with findings showing the marital change in circumstance that
occurred after the initial alimony judgment and the reasons for the extension are supported by
clear and convincing evidence. M.G.L. ch. 208, section 49 Therefore, if the payor spouse is over
or is approaching full retirement age at the time of the divorce, it is important that the recipient
spouse discuss with their attorney whether the facts of their case support an initial alimony award
that has a different termination date than is afforded by the statute.
Regarding the amount of alimony in Massachusetts, the Court will base the alimony order
on the difference between the parties’ respective incomes. Therefore, it is important to have a
complete understanding of the other’s party’s various streams of income so that alimony can be
appropriately calculated. Under the current tax laws, alimony is now tax-free to the recipient
spouse (federally and on Massachusetts state returns) and the payor must pay taxes on their total
income, including the amount paid in alimony. Based on the change in the taxability of alimony,
Judges usually apply a percentage of approximately 21%-28% to the difference between the
parties’ incomes in order to arrive at a suitable alimony obligation, with long-term marriages
usually being on the higher end of that scale. However, every case is different, and the judge
will tailor the amount of alimony to the recipient’s need, as well as the payor’s ability to pay.
There are many factors to consider when analyzing the issue of alimony in a “gray
divorce.” An experienced family law attorney will gather the facts of their client’s particular
case, apply the law to those facts, and provide their client with clear guidance on the issue of
alimony so that the client can start to plan for their financial future after the divorce.
