Skip to main content

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In Reed v. Reed, a recent unpublished (Rule 1:28) decision, the Appeals Court provided a summary of the current definition of need in Massachusetts.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While Rule 1:28 decisions are not binding precedent, the Appeals Court has sent a clear message regarding their interpretation of the SJC's prior decisions on alimony.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.


Post a Comment

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day