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ALIMONY OR SPOUSAL SUPPORT
The presence and/or the amount of alimony in a particular case is an
area where judges have a great deal of discretion and tend to differ
substantially. Some of the more common approaches include awarding the lower income spouse one-third (1/3) of the differential in gross income or totaling the entire income and awarding alimony so as to create a percentage split such as 60% to 40%. It is also important to note that alimony payments (unlike child support) are deducted from income for the payor and included in income by the payee for tax purposes. Under Massachusetts General Law Chapter 208 Section 34 (below),
at the time of divorce, the court may make a judgement for either of
the parties to pay alimony to the other. In addition to or instead of a
judgement to pay alimony, the court may assign to either party all or
any part of the estate of the other. In determining the amount of
alimony, if any, to be paid, or in fixing the nature and value of the
property, if any, to be assigned, the judges in the Massachusetts
divorce courts will consider the following twenty factors:
1. Length of marriage
2. Conduct of the parties during marriage
3. Age of the parties
4. Health of the parties
5. Station of the parties
6. Occupation of the parties
7. Amount of income of the parties
8. Sources of income of the parties
9. Vocational skills of the parties
10. Employability of the parties
11. Estate of the parties
12. Liabilities of the parties
13. Opportunity of the parties to acquire future capital assets
14. Opportunity of the parties to acquire further income
15. Contribution of the parties in the acquisition of their Estate
16. Contribution of the parties in the preservation of their estate
17. Contribution of the parties in the appreciation of their estate
18. Contribution of the parties as a homemaker in the family unit
19. Needs of the parties
20. Needs of the children
In practice, the length of the marriage and the difference in the
incomes of the parties are often very important or even the most
important factors in awards of alimony. Judges are less likely to award
alimony (particularly indefinitely) in shorter marriages even with
significant differences in income and much more likely to award alimony in
longer term marriages with income differentials. The most interesting
(and difficult) cases are the ones that lie between the extremes and
often a sliding scale occurs with length of marriage and income
differential. The tax consequences of various alimony schemes are usually also carefully analyzed by the court and the parties.
Chapter 208: Section 34. Alimony or assignment of estate; determination of amount; health insurance
Section 34.
Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance. In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.
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