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  • Writer's pictureAlan Jacobs

Mediating Your Alimony Agreement - Part 2

This week I'm writing a series of blog postings on mediating your alimony agreement. Yesterday I wrote about why former spouses sometimes need alimony.

How is alimony supposed to work?

Gender is often a red herring in discussions about alimony. The alimony debate is often framed as husbands vs. wives, but the real issue is simply a matter of earnings. When one spouse earns significantly more than the other spouse, alimony is a potential issue in a divorce.

The purpose of alimony is to equalize – to a degree – the post-divorce income levels of spouses, thereby enabling the lower-earning spouse to approach (but perhaps not fully achieve) the lifestyle and station that the spouse enjoyed during the marriage. By enabling the financially dependent spouse to receive support payments from the higher-earning spouse, both spouses can theoretically enter their post-divorce lives with economic stability.

In Massachusetts, alimony orders are constrained by the Alimony Reform Act (ARA), a 2011 statute that provided a comprehensive alimony framework. The ARA attempts to balance the post-divorce needs of spouses by capping the amount and duration of alimony. Under the ARA, alimony is generally limited to 35% of the difference between the parties’ gross incomes. The 35% “cap” is intended to provide the lower-earning spouse with an opportunity to maintain elements of the marital lifestyle enjoyed during the marriage – while acknowledging that the higher-earning spouse should nevertheless retain the majority of his or her earned income after the divorce.

In terms of duration, the ARA determines how long a spouse will receive alimony based on the length of the marriage. For a 5-year marriage, the ARA limits alimony to 2.5 years (i.e. half of the length of the marriage). For a ten-year marriage, the ARA limits alimony to 6.0 years (i.e. 60% of the length of the marriage). For a 19-year marriage, the ARA limits alimony to 15 years (i.e. 80% of the length of the marriage). For marriages over 20 years, ARA generally only limits the duration of alimony as follows: the paying party reaches federal retirement age, the receiving party remarries or cohabitates with a new partner, or either party dies.

It’s important to note that alimony orders are generally modifiable under Massachusetts law, and that judges are not required to follow the ARA if the facts of a particular case warrant a deviation. It can be difficult to predict the future at the time of a divorce, and the modifiability of future alimony can have a significant impact on negotiations.

Although the ARA provides Massachusetts judges with many guideposts for determining alimony, litigating alimony at trial is often highly unpredictable. Massachusetts appellate decisions are full of examples of Probate and Family Court judges deviating from the ARA in various ways. (Indeed, where the 35% cap is only that – a cap, not a rule – many alimony trials result in orders that are lower than the 35% difference. The point is: litigating alimony is unpredictable.)

Tomorrow I'll cover divorce mediation keeps the focus on the future.

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