MA Alimony Frequently Asked Questions
MA Alimony FAQ's
1. What is alimony based on?
Alimony is based on a number of factors that inform the court as to whether there should be support payed to financially weak spouse. The primary factors are whether the potential payor has an ability to pay and whether the potential recipient has a financial need. The other factors used by the court include the incomes of the parties, the length of marriage, contributions to the marriage (economic and non-economic), marital lifestyle and the ability of each party to maintain it, and others.
Generally, the longer the marriage, and the greater the disparity in income between the parties, the greater the chance that alimony will be ordered.
2. How to avoid alimony
You can try to avoid alimony by arguing that either 1) you can’t afford it, or 2) the other spouse doesn’t need it. This becomes more and more difficult to achieve as the disparity in income between the parties and the length of the marriage are greater.
Another method of avoiding alimony is by increasing your offering in property division. If your circumstances call for alimony and you want to try to avoid it, you can offer your spouse a disproportionate share of the property as an “alimony buyout.” Whether this is wise depends on your alimony exposure and what it will cost you in assets/property to eliminate it.
Although you certainly should be working to reduce your alimony exposure, be careful about manipulating your income to avoid alimony. If the court finds that you’re intentionally unemployed or underemployed or in any way purposely decreased your income, the court can “attribute” income to you. Essentially that means the court can treat you as if you’re earning the higher amount for purposes of the alimony analysis.
3. How many years does a person have to pay alimony?
Alimony Reform of 2012 set time limits on alimony in MA. First, alimony generally does not continue beyond the payor’s social security retirement age, which is generally 67.
In addition, there are time limits based on the length of the marriage. If the marriage is 5 years or less, it’s 50%; between 5 -10 years, 60%; between 10-15 years, 70%; and between 15-20 years, 80%.
The court has discretion to deviate from these time limits for “good cause,” but must explain its reasoning in writing.
4. What is the average percentage of alimony?
The average percentage used for an alimony calculation is 30-35% of the difference in the gross incomes of the parties.
5. How long do you have to be married to get alimony?
There is no minimum length of marriage for a person to qualify for alimony. However, generally, the longer the marriage and the greater the income disparity between the parties, the greater the chance of alimony being ordered. But even in shorter marriages, alimony can be ordered for example to help a spouse transition to the next phase of life or to reimburse that spouse for a contribution made during the marriage to the payor’s earnings capacity - for example financially supporting the spouse through schooling.
6. How can I get out of paying alimony?
You can get out of paying alimony by either convincing the other side or the court that you can’t afford it or the other spouse doesn’t need it. Or, if alimony is warranted, you can use property for an alimony “buyout.” Instead of paying alimony you can agree to give the other spouse property or assets that would otherwise be yours.
7. Can alimony be increased after divorce?
Unless the parties agree otherwise, alimony can be modified (increased or decreased) after divorce. The default is that alimony is modifiable and either party can file for a change in the order upon a material change in circumstances. For example if the needs of the recipient increase and the payor is able to afford it, the court may order an increase on a modification.
However, when the judgement is first entered, the parties can contract at that time to close out alimony permanently, which means that both parties are committed permanently to exactly what they agreed upon and neither can modify the order. If the parties agree that alimony is not modifiable, it generally can never be increased.
8. What is the difference between spousal support and alimony?
There is no difference between spousal support and alimony. They’re different terms for the same concept. In MA, the term “alimony” is used more often.
9. How is alimony taxed?
This is being written in October, 2018, and currently alimony is taxed as income to the recipient and deductible for the payor based on their respective tax brackets. However, pursuant to the most recently enacted tax laws, as of 1/1/19 alimony will no longer be taxable nor will it be tax-deductible. This is a significant change, and will likely warrant an adjustment to how alimony is calculated.
10. Can a prenup stop alimony?
Yes, generally, a prenuptial agreement can bind the parties to a certain arrangement upon divorce, including no alimony. However, in order for a prenuptial agreement to be enforceable, the court must find that it was fair and reasonable at the time the parties signed it, and at the time of divorce.
11. Does alimony change if income changes?
Unless the parties contract otherwise, alimony remains modifiable. Therefore upon a “material change of circumstances,” either party can file for modification of alimony. If the change in income is not substantial, the court is unlikely to change the order. However, a significant change either way, for either party, creates an issue of whether alimony should be modified.
12. Can alimony be decreased?
Yes. Unless the parties agree to close out the issue of alimony permanently, either party can file for modification upon a “material change in circumstances.” For example, if a payor suffers a decrease in pay or unemployment, the order would be subject to modification for a decrease in alimony.
13. Can alimony be increased?
Unless the parties contract to permanently close out the issue of alimony, it remains modifiable. Therefore, if the financial needs of the recipient increase and the payor is able to afford higher payments, the court may order that alimony be increased.