Lifestyle During Separation Does Not Define Marital Lifestyle, According to Massachusetts Appeals Court
In setting the amount of alimony to be paid, and how long it is to be paid, a Probate & Family Court judge in Massachusetts must consider twelve mandatory factors:
"In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material." M.G.L. c. 208, §53(a).The judge is limited in cases of general term alimony to not exceeding "the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued." M.G.L. c. 208, §53(b). However, the judge may deviate from these limitations for the reasons enumerated in §53(e).
In Steele v. Steele, a Rule 1:28 decision by the Massachusetts Appeals Court successfully tried and argued by Jonathan R. Eaton through Kelsey & Trask, P.C., the husband and wife had been separated for the last seven years of a twenty-eight year marriage. During their separation, the wife lived frugally, while the husband's upper middle class lifestyle remained unchanged. Further, the value of the couple's assets increased during this period.
The trial judge had calculated the wife's need for purposes of determining the amount of alimony that the husband was to pay, as well as analyzing the §53(a) factors, by examining the marriage and lifestyle during periods of cohabitation and separation. The husband appealed, arguing that the wife had reduced her need, and as such, the amount of alimony that she required should be correspondingly reduced.
The Appeals Court disagreed, and affirmed the alimony award of 30 per cent of the difference in the couple's respective incomes. M.G.L. c. 208, §53(e)(6) provides that a judge may deviate if there is a significant period of marital separation, but only for considering the length of the marriage. Not marital lifestyle, and not need. The Appeals Court cautioned during oral argument that allowing need to be defined during a period of separation would open the door for potential alimony payors to benefit from financially cutting off access to the marital assets from potential alimony recipients. Conversely, the would-be alimony recipients would benefit from spending lavishly during a period of marital separation. The Court wrote:
"It would obviously defeat that purpose if the separation itself needed to be vigorously disputed by the parties to avoid the specter of enduring advantage."Clouding the alimony analysis was the wife's separate support action a year prior to the husband's complaint for divorce. The separate support action was resolved by stipulation, for a weekly amount significantly less than the alimony award. The husband appealed this issue as well, arguing that a material change in circumstances had not occurred warranting a change in the amount to be paid.
The Appeals Court disagreed on this issue as well, rejecting the husband's argument to apply the standard in modifying a divorce judgment, when a divorce had not yet taken place. A separate support action is different from a divorce, as the marital relationship remains while the spouses are living apart, and there is no contemporaneous division of the marital assets.
Lastly, the husband argued that the couple's assets should have been divided using values as of the date of separation, and not at the time of divorce. The trial judge had awarded the husband more of the assets than she did to the wife, to reflect the differences in their respective contributions after the couple separated. The trial judge found that, through the joint management of certain assets and the continued filing of tax returns, the couple continued some aspects of their marital partnership. As such, using values as of the date of separation would have been improper, and Appeals Court agreed.
If you should have any questions about alimony or property division in Massachusetts, contact the attorneys at Finn & Eaton, P.C. or Kelsey & Trask, P.C. to schedule a one-hour consultation.