In March 2012 the Alimony Reform Act went into effect and with it came new grounds for termination of alimony. One of the most talked about grounds for termination was the payor reaching social security retirement age of sixty-six and a half.
The relevant language can be found in G.L.c.208 §49(f) and reads in part;
“Once issued, General Term Alimony orders shall terminate upon the payor attaining the full retirement age when he or she is eligible for the old-age retirement benefit under the United States Old-Age, Disability, and Survivors Insurance Act, 42 U.S.C. 416, as amended and as may be amended in the future. The payor’s ability to work beyond said age shall not be a reason to extend alimony”.
Previously reaching retirement age alone was not grounds for termination of alimony. The proper procedure for handling these matters was through a complaint for modification, which would be filed when the payor retired or was about to retire and would be based on a material and substantial change in circumstances, i.e., the payor’s income was reduced because of retirement and they could no longer afford to pay the same amount.
Despite the new language contained in the Alimony Reform Act there is built into this section of the law grounds for deviating from the presumption that alimony should cease upon the payor reaching retirement age. Deviation may be done for “good cause” shown. The factors relevant to determining good cause can be found in G.L.c.208 §53(e) of the Alimony Reform Act. :
“(1) advanced age; chronic illness; or unusual health circumstances of either party;
(2) tax considerations applicable to the parties;
(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;
(6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
(7) a party’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor;
(8) a party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance or employment opportunity; and
(9) upon written findings, any other factor that the court deems relevant and material.”
One of the first cases to test the limits of a Judge’s ability to deviate from the presumption that alimony should terminate upon reaching full retirement age was Green v. Green, 84 Mass. App. Ct, 1109 (2013). In this case the wife was granted alimony until such time as the husband actually retired, and that decision was based on the fact that the wife was dependent upon the husband for support, due to her age and poor health she was not employable and likely would not be able to acquire her own assets in the future.
The laws on Alimony are new and as such have not been fully tested. It is important that you consider all the relevant factors and speak with an attorney knowledgeable in this area of the law before you decide to take action. These changes in the law also require litigants currently going through the process to undertake careful planning and preparation to protect future needs and interests of the parties.