Tuesday, May 12, 2015

Alimony: You get what you Need!

In Reed v. Reed, a recent unpublished (Rule 1:28) decision, the Appeals Court provided a summary of the current definition of need in Massachusetts.  Alimony is defined in the Alimony Reform Act 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, under a court order."  This means that need is one of the three main components of alimony and when it comes to calculating alimony:
Need "is not based on the minimum life necessities of the spouse, but rather is measured by 'the amount necessary to support a spouse in a manner consistent with the marital life-style.'" Reed quoting Zaleski v. Zaleski
For general term alimony, the most typically awarded type of alimony, the statute also limits the amount of alimony to "generally not exceed 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."(emphasis added)  In Reed, the Appeals Court points out the importance of that "or".

The trial Judge, in Reed, used the differential formula (though apparently did the math wrong), and the husband argued that the wife's "need" was actually lower.  The Appeals Court did not agree, and also indicated that "the statute plainly allows a judge to base the alimony award on need OR the income differential formula." (four types of emphasis added)

In this graph that would mean the trial Judge has discretion to award anything in the purple area up through the dark blue line, so long as the payor has an ability to pay.  But what if "need" exceeds the differential formula?  Can the Judge award a figure in the blue section of the graph above?  If "need" exceeds the differential formula is the cap higher?  

According to the Appeals Court in Reed, and despite the fact that this answer was not necessary for the decision in this case, the Court answered YES:  "A judge has discretion to exceed the thirty-five percent benchmark on the basis of the parties' marital spending patterns."

While Rule 1:28 decisions are not binding precedent, the Appeals Court has sent a clear message regarding their interpretation of the SJC's prior decisions on alimony.  Alimony recipients might not get what they want, but they will likely get what they need.


  1. Its high time to put a permanent end to alimony. It is utterly repugnant to First Principles and a civilized and peaceful society.

    Besides, probate court judges are hardly qualified to make economic decisions that could last a lifetime. The probate court judges are not after all, captains of industry, entrepreneurial dynamos, economists and most of them have never met a payroll.

    1. Thank you for your comment. I agree that leaving economic decisions (and pretty much any family decisions) up to a Judge seldom makes sense. It's much better for people to resolve these important life decisions between themselves in mediation or other dispute resolution processes.

      I don't agree, however, that alimony should be abolished altogether. For many some kind of support is necessary, especially after a long term relationship where spouses may play different roles. Marriage is a financial as well as an emotional contract, and perhaps a better way of dealing with those potential economic disparities is to plan for them using prenuptial agreements. Abolishing alimony altogether would put spouses who perform non-economic duties in a relationship at a severe disadvantage and would be in direct contrast to the principle of a marital partnership. After all, anyone who wants to completely avoid a chance of paying alimony has a very simple option, don't get married in the first place.

    2. How can a judge assure that the spouse can live "in a manner accustomed to in the marriage"..Simply put ..a judge cannot make one salary support two families...unless of course they have solved the entire economy by identifying how to double the same money you had to work with before the divorce. I challenge anyone who actually understands math how one person can continue to lead the same lifestyle and the payor can just do this without a sacrifice of lifestyle. Impossible..the law is heavily burdening one spouse over the other.

    3. I agree with you that in many, if not most, cases the parties will not be able to have the same lifestyle level in two households as in one. The Judge is faced with the unenviable choice of how to make changes so one party does not feel all of that impact. When people don't want to take the risk that a Judge makes those determinations more in favor of one person than the other, they should explore out-of-court settlement options like mediation and collaborative law. In settling outside of court parties can try to come up with a fair resolution that takes into account, in many cases, the need for both parties to sacrifice if two households is the new reality.

  2. "Parties can try to come up with a fair resolution" - not all people care about being fair. One can not negotiate with someone who says, "leave it up to the judge" and refuses to give up anything. Payer spouses are forced to accept what is put forth if they ever want to complete the divorce process not stop paying legal fees for years. The payer is at a major disadvantage. They are given a life sentence.


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