Our legislators have a strong contempt for the public. They like to hold their meetings behind closed doors and they don’t like the public to know about their deliberations. They believe they know what is good for us and that the public should not have input on the legislative process of even see how it is progressing.
Our legislature, being dominated by lawyers, doesn’t hold the same contempt for the fraternity of other lawyers. So they actually often circulate draft legislation among other lawyers but out of the sight of the unwashed public.
But the internet loves openness, and documents end up in the most unlikely places. The following is the state of discussion of the new alimony law back in April, the second of only three meetings they held.
REPORT OF THE
JOINT MBA/BBA ALIMONY TASK FORCE
ALIMONY OR SPOUSAL SUPPORT GUIDELINES
WHERE THERE ARE NO DEPENDENT CHILDREN
I. Mission Statement
The Alimony Task Forceâ€™s purpose shall be to stimulate judicial, academic andÂ legislative discussion in order to foster consistency and predictability in alimonyÂ awards. To that end, the Alimony Task Force shall consider the variousÂ theoretical foundations of alimony and spousal support, as set forth inÂ Massachusetts statutory and case law, accepted by the American Law Institute, orÂ promulgated in the cases and statutes of other jurisdictions. The Task Force shallÂ report on and recommend standards for reasonableness of amount and duration ofÂ awards, including factors for consideration by the court in alimony awards,Â standards for consideration in determining attribution of income andÂ characterization of income as opposed to after-acquired assets. The Task ForceÂ shall specifically address the special tax consequences and enforcement ofÂ alimony awards to the context of same-sex divorce as a factor for the court toÂ consider in alimony awards.
II. Preamble â€“ In formulating an alimony award, M.G.L. c. 208 Section 34 lists aÂ variety of factors, some of which shall and some of which may be considered.Â Certain decisions of the appellate courts of Massachusetts seem to limitÂ application of each of the Legislatureâ€™s designated factors for alimony
consideration. These decisions leave members of the bar uncertain as to theÂ appropriate application of the Massachusetts alimony statute. We assume that theÂ Legislature, in its enactment of M.G.L. c. 208 Section 34, intended that alimonyÂ determinations take into consideration all required and discretionary listedÂ factors. Otherwise, the Legislature could have bifurcated the alimony andÂ property division statute into separate statutes with separate factors to consider.
The prevailing discussion and concern among many members of the domesticÂ relations bar is that there seems to be a dichotomy between the limited focus ofÂ appellate decisions related to alimony and the breadth of the statutory factorsÂ under M.G.L. c. 208 Section 34. This dichotomy prevents predictability regardingÂ likely outcomes in alimony cases. Of major concern to the Task Force is the issueÂ of durational alimony. The implication from Appellate decisions is that uponÂ divorce, irrespective of the length of marriage, the fact of marriage itself may giveÂ rise to an indeterminate and indefinite obligation on the part of one spouse toÂ support the other. This appears to be so, in the absence of specific evidence ofÂ future financial condition, notwithstanding the circumstances of the parties to theÂ marriage, the length of the marriage or the other factors set forth in the statute. OfÂ further concern is the restrictive impact on the judiciary in awarding alimony for aÂ limited time when appropriate and desired out of concern that an unintendedÂ indefinite period of support must ensue and out of concern over the burden whichÂ invariably falls on the payor of ever being relieved of a support obligation onceÂ one is set. In proposing these guidelines, the Task Force seeks to encourageÂ settlement and discourage protracted litigation in cases in which alimony is aÂ potential component of the marital dissolution issues.
In making its recommendations below, the Alimony Task Force has consideredÂ the Massachusetts alimony statute, cases relating to that statute, and approaches toÂ alimony in numerous other jurisdictions within the United States. The AlimonyÂ Task Force has also reviewed the Report of the American Academy ofÂ Matrimonial Lawyers on Considerations when Determining Alimony, SpousalÂ Support and Maintenance along with the American Law Instituteâ€™s Principles ofÂ Law of Family Dissolution section on Compensatory Spousal Payments.
The Alimony Task Force recommendations do not apply to circumstances whereÂ the parties have dependent children or when, but for alimony, the recipient ofÂ alimony would become a public charge. Additionally, these recommendations doÂ not apply when the recipient of alimony has a mental or physical disability, is ofÂ an advanced age, or for compelling and related reasons lacks the ability toÂ exercise marketable skills including those reasons related to abusive conduct ofÂ the payor spouse during the marriage.
III. Alimony classifications - The Task Force recommends that in proceedingsÂ where alimony or spousal support is to be considered, the court consider theÂ following classifications of alimony or spousal support when entering an order:
a) General term alimony or general term spousal support is intended toÂ compensate a spouse for economic dependence created during a marriage. ThisÂ form of alimony or spousal support consists of periodic payments which terminateÂ upon the remarriage of the supported spouse or upon the death of either spouseÂ (except as secured in section IV) or which terminate on a date certain, with theÂ amount of the order remaining modifiable based upon changed circumstancesÂ during the defined term. For marriages exceeding twenty years the term would beÂ indefinite and modifiable based upon changed circumstances occurring in theÂ future. The purpose of this form of support includes circumstances where theÂ court finds it appropriate to order the payment of alimony or spousal supportÂ where there is a need for the ongoing support of a spouse, to be reviewed andÂ revised as changed circumstances may indicate in the future.
i) Durational limits for general term alimony awards – In making anÂ award of alimony or spousal support, and in particular, when the court isÂ considering an award of general term alimony or general term spousalÂ support, the court must first consider the duration of the marriage. TheÂ duration of the marriage shall be construed to mean the time frame betweenÂ the date of the marriage and the date of the service of the Complaint or theÂ filing of a 1A Petition. The court should have the discretion where thereÂ is a period of significant, proximate premarital cohabitation to consider thatÂ the partiesâ€™ partnership is of longer duration than the length of theÂ marriage. In considering the duration of the marriage, the task forceÂ recommends the following durational formula apply to the length of time toÂ set a durational time for an alimony award to be paid:
Duration of the Marital Partnership Maximum Percentage of Time
|up to five years||50%|
|more than five years up to ten years||60%|
|more than ten years, up toÂ fifteen years||70%|
|more than fifteen years up toÂ twenty years||80%|
|more than twenty years indefinite|
For example, if the length of the marriage is ten years, the alimony awardÂ should not exceed a durational time frame of five years.
ii) Retirement- Notwithstanding the above, a payorâ€™s alimony orÂ spousal support obligation for general alimony is presumed to terminateÂ upon the payor spouseâ€™s retirement in fact from gainful employment at anÂ age that would be considered usual retirement age for the spouseâ€™s career.
b) Rehabilitative alimony or rehabilitative spousal support is a finite sum to beÂ paid in as few as one payment or a series of payments up to a term of five years.Â Rehabilitative alimony or rehabilitative spousal support terminates upon theÂ remarriage of the supported spouse, or the death of either spouse (except asÂ secured in subsection IV) or the occurrence of a specific event to occur in theÂ future. Such alimony or spousal support term may be extended by a complaint forÂ modification judgment only consistent with the purpose of this alimonyÂ classification and modified based upon unforeseen events frustrating the goodÂ faith efforts of the supported spouse to become self-supporting at the end of theÂ term, assuming the ability of the supporting spouse to pay and the appropriatenessÂ of the extension (based upon all of the circumstances) of additional rehabilitativeÂ alimony or rehabilitative spousal support at the end of the original term. TheÂ purpose of this form of alimony or spousal support is to provide or encourage theÂ rehabilitation of the supported spouse to enter into or return to the workplace,Â within the parameters of modifiable ending dates coinciding with eventsÂ considered appropriate by the court such as the completion of job training orÂ education and the like, and to require rehabilitative efforts by the supportedÂ spouse. The evidence at trial with respect to this type of award shouldÂ demonstrate a plan and time frame the rehabilitation to occur along with a specificÂ period for the supported spouse to obtain employment or education/training forÂ rehabilitation. In the event that the supported spouse seeks continuation ofÂ alimony beyond the durational time limit of the original order, or the supportingÂ spouse seeks a modification during the term limit, the standard of proof to be metÂ by the petitioning party shall be by clear and convincing evidence.
c) Reimbursement alimony or reimbursement spousal support may be awarded,Â if appropriate, after short term marriages (defined as to up five years). ThisÂ amount is to be paid in a finite sum, to be paid in as few as one payment or aÂ series of payments for a set duration, but the amount is not modifiable regardlessÂ of changed circumstances in the future. The purpose of this form of alimony orÂ spousal support may include, but is not limited to, circumstances where the courtÂ finds it necessary and desirable to reimburse the supported spouse from the futureÂ earnings of the payor spouse based upon the recognition of the financialÂ contributions of a spouse to the employment training, education or careerÂ development of the other spouse which cannot be adequately compensated forÂ through property division or another classification of alimony or spousal support.
d) Transitional alimony or transitional spousal support is of limited duration, andÂ usually short term, for a payment period up to a maximum of three years, where aÂ rehabilitative alimony or rehabilitative spousal support award will not apply, butÂ the circumstances may justify some award of financial support for a limitedÂ period of time. The payment can be in a finite total sum to be paid in as few asÂ one payment or a series of payments over a period of time, terminating only uponÂ the death of either spouse (unless secured in subsection IV) or remarriage of theÂ supported spouse. This type of alimony is not terminable or modifiable basedÂ upon changed circumstances in the future.
IV. Security- In making an award of alimony or spousal support, the court mayÂ make provision for securing the payment of the alimony or spousal support in theÂ event of the payorâ€™s death through an obligation on the estate of the payor or theÂ maintenance of life insurance coverage. In making such an order, the court shallÂ give due consideration to the amount and term of the alimony or spousal support, Â to the cost of premiums for insurance plans carried by the parties during theÂ marriage, as well as the cost of plans which could be obtained by the payorÂ spouse. The court shall also consider the age of the parties and insurability of theÂ payor spouse, the probable economic condition of the supported spouse upon theÂ death of the payor spouse, and any other factors the court deems relevant.
V. INCOME GUIDELINES (NOT APPLICABLE TO REIMBURSEMENTÂ ALIMONY)
An alimony or spousal support order should be entered in consideration ofÂ traditional concepts of alimony in a specific dollar amount which dollar amountÂ should not exceed 33% of the difference between the gross ordinary incomes ofÂ the parties.
Any support being paid for child support or spousal support for anotherÂ relationship pursuant to a court order should reduce the payor or payeeâ€™s grossÂ ordinary income for the purposes of this Section V.
The Alimony Task Force suggests that the foregoing is not to be utilized as aÂ â€œformulaâ€ for alimony but to recognize that a â€œcapâ€ of alimony orders should beÂ available.
VI. DEVIATION FACTORS
The Alimony Task Force recognizes that some cases may require deviation for theÂ suggested term limits and income limits due to:
- advanced age or chronic illness or unusual health circumstances of either party
- due to the tax circumstances, including, but not limited to, the current lack ofÂ recognition of same sex marriage under federal law
- whether the payor spouse is providing health insurance and the cost thereof forÂ the supported spouse
- the effects of the application of these provisions leaving the supported personÂ in a position where, but for deviation, they would be dependent on publicÂ assistance
- consideration of the period of any significant, proximate marital cohabitationÂ (which the court may take into consideration in determining the duration of theÂ marriage).
- a significant portion of the income of the payor or payee is being derived fromÂ sources which do not constitute ordinary income (such as capital gains orÂ dividends)
- other factors, upon written findings, that the court deems relevant