Reforming alimony: Massachusetts reconsiders postdivorce spousal support.

• Author: Kindregan, Charles P., Jr.

When John Adams wrote the Massachusetts Constitution during the American Revolution, he included a provision allowing for alimony awards in divorce cases. Thus Massachusetts has recognized awards of spousal support longer than any other state. From a national perspective, the evolution of alimony law began to undergo changes in the last half of the twentieth century in many states, including time limits on the obligation, use of rehabilitative orders, and greater flexibility to modify. The introduction of equitable property division in divorce actions in the last decades of the twentieth century throughout the United states helped to reduce the need for alimony in many cases. Changes in societal habits, including the growing ability of women to become self-supporting, played a role in diminishing expectations of spousal support over recent decades. In the meantime, efforts were being made to develop models for alimony legislation for states to consider, but few had any national impact. Certainly, these influences played a role in Massachusetts, just as they did in other states. But in practice, the idea of maintaining a lifetime lien on the income of alimony obligors also persisted among many lawyers and judges. The refusal of the Massachusetts Supreme Judicial Court in 2010 to create a presumption in favor of an obligor's request to be relieved of his alimony obligation to his long-divorced wife when he reached the age of full retirement, as defined by the Social Security Act, helped to set off a discussion in the bar and among the public about whether alimony needed rethinking. It led to an effort to reform the statutory standards governing alimony, which eventually led all the major bar associations in the state, as well as members of both houses of the state legislature and the governor, to work together to produce a modern law on spousal support. This article reviews the substance of this new law, referred to as the Alimony Reform Act of 2011, and some of its implications.

Table of Contents I. Introduction II. The Impact of Efforts to Develop National Alimony Standards III. Consideration of Federal Tax Consequences IV. Alimony and Its Spousal Support Function V. Theories of Alimony VI. Alimony Under the 1974 Statute VII. Alimony Defined Under the Reform Act A. The New Standard of Full Retirement Age B. The Relevance of Marriage Length C. General Term Alimony D. Premarital Economic Partnership E. Recipient's Postdivorce Cohabitation F. Remarriage of the Alimony Recipient G. Rehabilitative Alimony H. Reimbursement Alimony I. Transitional Alimony VIII. Factors for Determining Amount and Duration of Alimony IX. General Guidelines for Alimony Orders A. Income Defined B. Deviation from the Factors C. Factors No Longer Directly Considered in Alimony D. Income Excluded as to the Payor from Consideration in Modification Action E. Security X. Effect of the Alimony Reform Act of 2011 on Existing Orders XI. Surviving Contracts I. INTRODUCTION

The subject of alimony has again come into the national spotlight in recent years, and the Massachusetts legislature has taken the lead in rethinking the subject of postdivorce spousal maintenance. (1) The attempt to "reform" alimony has undergone various phases in the United States, (2) and the Massachusetts Alimony Reform Act (Alimony Reform Act of 2011) is the latest and the most comprehensive of such legislation. (3) other states will likely watch courts' interpretation and enforcement of the new statute because, notwithstanding the legislature's attempt to draft a specific and comprehensive law, there is potential for dispute as to particular issues.

The power of a court to authorize an order requiring one divorcing party to pay spousal support to the other has been recognized by statute in Massachusetts almost since the creation of the Commonwealth, and had its origins in the practice of the ecclesiastical courts of England even before the American Revolution. (4) Authorization for enactment of laws governing alimony was provided for in the Massachusetts Constitution by part 2, chapter 3, article V, which specifically mentions "causes of marriage, divorce, and alimony." (5) The first statute authorizing the courts to hear and determine divorce cases, enacted in 1786, provided for alimony awards. (6) While the statute has been amended over time, the concept of alimony has remained an intimate part of Massachusetts divorce law. The word "alimony" as used in this article means some form of spousal monetary payment, following a divorce of the payor and the recipient, (7) pursuant to a court order or an agreement. (8)

Although an absolute right to alimony never existed in Massachusetts law, (9) for many years in actual practice, courts tended to view alimony as a method of enforcing a husband's marital obligation to support his wife. (10) The law, prior to the legislative amendment of the alimony statute in 1974, tended to bolster this concept by providing for alimony to a wife while the husband was limited to awards "in the nature of alimony." (11) The 1974 amendment eliminated gender distinctions, at least in theory, by "cut[ting] to the quick the concept that alimony is based on the husband's duty to support his wife." (12) Finally, the enactment of the Alimony Reform Act of 2011 forever ended the concept of any historical connection to gender status or outdated gender stereotypes. (13) The court may award alimony to "either of the parties" upon a divorce or on a complaint brought after a divorce if the court has personal jurisdiction over both spouses. (14)

2. THE IMPACT OF EFFORTS TO DEVELOP NATIONAL ALIMONY STANDARDS

   As can be inferred from some portions of the Alimony Reform Act of 2011, the drafters gave some consideration to the widely noted American Law Institute's Principles of the Law of Family Dissolution (ALI Principles). (15) As discussed below, some of the ALI Principles were partially incorporated into the final legislation. However, the ALI Principles were not uniformly incorporated into the Massachusetts legislation, and in many places, the text of the Alimony Reform Act of 2011 varies widely from the ALI Principles. The ALI Principles employ concepts such as "domestic partnerships," which are unknown in Massachusetts law, while recognizing consideration of premarital cohabitation contributions and rehabilitative alimony, which the new Massachusetts law does recognize. Presumably, Massachusetts courts and attorneys will be free to cite the ALI Principles when relevant, but care should be exercised to distinguish Massachusetts statutory law and the ALI Principles when they differ in material respects.

   Various efforts made to develop a national uniform alimony law have been unsuccessful to date. When the National Conference of Commissioners on Uniform State Laws (NCCUSL) was established in 1892, it was thought that the best potential for development was a uniform commercial law and a uniform law on marriage and divorce, which would include provisions on spousal support and maintenance. (16) However, decades passed while the Uniform Commercial Code rapidly found acceptance, and the Uniform Marriage and Divorce Act (UMDA) floundered until its eventual release in 1970. (17) The UMDA seems less influential than the ALI Principles on the drafters of the Alimony Reform Act of 2011, although there are some similarities. For example, section 308(b) of the UMDA suggested that alimony cannot be based on marital misconduct and must be limited to a period of time deemed just, rather than a permanent order; similar standards were not expressly found in Massachusetts law until the enactment of the Alimony Reform Act of 2011. (18) Section 316(b) of the UMDA also provided for termination of an alimony obligation on the death of either party or the remarriage of the alimony recipient in the absence of an agreement providing otherwise, a legal standard that was in some doubt in Massachusetts until the enactment of the Alimony Reform Act of 2011. (19)

   Prior efforts to provide national standards to govern alimony may appear to contain similarities to the Alimony Reform Act of 2011; however, these proposals had only incidental impact on the drafters of the Alimony Reform Act of 2011. While other states will continue to legislate in accord with their own concepts of fairness, the Alimony Reform Act of 2011 could provide a potential model for consideration elsewhere.

   Some other state statutes contain a few provisions that are also included in the Alimony Reform Act of 2011, but the new Massachusetts law is distinctive because it constitutes a comprehensive effort to address numerous issues in alimony law. While a number of states have addressed particular issues, such as the use of time-limited orders for rehabilitative alimony, few have attempted to comprehensively provide guidelines and standards to the same extent as Massachusetts. The common pattern in the United States has been for the legislature to enact a statute authorizing spousal support orders, with some specific language, while leaving it to the courts to fill out the law based on factual problems raised in specific cases. Many of these judicial decisions will be useful in attempting to understand the legislative intent of the Massachusetts Legislature and the proponents of the new law in drafting the Alimony Reform Act of 2011.

3. CONSIDERATION OF FEDERAL TAX CONSEQUENCES

   From a national perspective, the use of alimony has been substantially affected by the federal Internal Revenue Code, which makes qualified spousal support payments deductible to the payor. (20) The alimony provisions of the Internal Revenue Code have in part preserved the use of qualifying spousal support as a useful method of tax avoidance. Nationally, alimony is used less in divorce cases than it was a half century ago, but the tax advantages of the alimony deduction continue to make it a relevant and useful tool in divorce planning...