Alimony in Massachusetts has a simple definition, namely “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.”
Perhaps we need to push the envelope a bit and try to be somewhat more precise. Let us ask, for example, what is meant by a reasonable length of time or to risk being even more inquisitive? Are there any circumstances or events that would end alimony prior to the expiration of the “reasonable” period of time? These two key questions were central issues in the 2011 negotiations which resulted in the enactment of “An Act Reforming Alimony in the Commonwealth,” effective as of March 1, 2012.
Duration of Support
The duration of support question resulted in the creation of timetables in which the length of the marriage defined the timeframe for support. Not surprisingly, the longer you were married, the longer you could receive support. Two hallmarks emerged from this time factor.
First, if you were married over 20 years, there was no specific end date. Yet there was an exception, an important exception to be sure: When the paying spouse reached full social security age, he or she was released from the obligation to pay alimony.
Is that the end, the real end? Not quite yet, for there was an addendum to the issue of fashioning a definitive ending to alimony. If, the Act’s framers reasoned, good cause could be shown for extending the alimony time period, a deviation might be granted.
Thus the framers of the Alimony Act considered the question of duration asked and answered, leaving open the path to deviation based on the good cause standard.
The second central question dealt with events that would end alimony prior to the timetable presented in the Act. Some termination events posed little debate. Clearly alimony would end if either party died. Although admittedly if the paying spouse died, provisions for collateralizing alimony might be in order by naming the alimony recipient beneficiary of insurance and/or assets. Then there was remarriage. If the alimony recipient remarried, alimony would stop unless of course the parties’ Agreement indicated that remarriage was not a termination date.
However, when the question of cohabitation was tackled, confusion reigned. Prior to the Act Reforming Alimony in the Commonwealth, judges could not order the termination of Alimony or, for that matter, order any change in alimony payment amount or time period if the recipient spouse were to enter into a cohabitation relationship. Not surprisingly, divorcing individuals sometimes dealt with this thorny question in their Agreement, providing terms and contingencies for dealing with cohabitation, but not the court.
Framing the Cohabitation Relationship
With the advent of a committee tasked with structuring an alimony law, the framers sought to provide not only a clear definition of the cohabitation relationship, but also to specify its impact on the payment of alimony. Cohabitation, as an event, would now be under the purview of the court. Modifications could be sought based on an alimony recipient’s engagement in a cohabitation relationship.
Yet instead of clarity, the framers of the Act were obviously conflicted. Cohabitation was indeed a confusing and emotionally hot issue. Why, alimony recipients asked, should my ex spouse be allowed to live with whomever he or she wants and nothing happens? Why should there be a disincentive, a punishment, for starting a new life unless I choose to remarry? Why? Then, of course, alimony payers had a different position. Why should I pay support to someone who is receiving economic help from another? Indeed, what if my ex-spouse is living with someone with more wealth than I? The “whys” abounded!
And so the argument went round and round. The end result was not to provide an answer. The end result was to provide choices.
Without going into the various factors used to define a cohabitation relationship, since they are stated in the Act, or raising the many questions underlying the payor spouse’s route to verification of the ex-spouse’s relationship, let us just consider the obvious question: What would happen if a former spouse, who is receiving alimony under a court order, enters into a cohabitation relationship, as defined in the Act, for the requisite length of time?
Assume for the sake of our story that both spouses agree on the definition of a cohabitation relationship and, to further simplify the plot, assume that both spouses agree on the time period when a change in the alimony payments will take place. But agreement on the perquisites for change appears to be insufficient backup for reaching agreement. Since the alimony law does not stipulate what will happen, the former spouses or the court is faced with choosing among the three choices stipulated in the Act.
Alimony will terminate
Alimony will be reduced
Alimony will stop but will resume if the cohabitation relationship ends during the alimony payment period
And here indeed is where the unanimity between spouses will likely end. The reduction in alimony payments is quite different than the termination of alimony. Perhaps compromise can be reached. Alimony can be terminated, but only after a more extended period of cohabitation. Alimony payments can be reduced for a designated time period and then stopped or terminated. Indeed the use of the word “terminated “is conflicting. The Act states that the alimony obligation whether suspended, reduced or terminated “may be reinstated upon termination of the recipient’s common household relationship.” As such termination and stoppage seem to have the same meaning. Confusing, yes?
Since the inception of the Act Reforming Alimony in the Commonwealth on March 1, 2012, we, at the Centre for Mediation and Dispute Resolution, have urged mediators and lawyers to assist divorcing couples in confronting and addressing the terms and contingencies for cohabitation in their Separation Agreement. To wait until cohabitation is a real live issue is to invite conflict.