Spousal Support and Alimony in a Divorce

In Massachusetts, a court can award alimony in a divorce case if it determines that there is a need for support by one spouse in order to continue the standard of living maintained during the marriage and an ability of the other spouse to help meet that need. It is possible if not likely, however, that a divorce will result in a reduced standard of living for both parties and it is then a matter of sharing that reduction equitably.

Major changes to the law of alimony became effective in 2012. Under reform legislation, four types of alimony are now available:

1. General term alimony is the periodic payment of support to a recipient spouse who is economically dependent on a payor spouse.

  • It terminates on the remarriage of the recipient spouse, the death of either spouse, or the payor spouse attaining full retirement age under Social Security (67 for people born after 1959).
  • It can be suspended, reduced, or terminated if the recipient spouse maintains a common household with another person for a continuous period of at least 3 months.
  • It is limited in duration based on the length of the marriage as follows: after a marriage of 5 years or less, 50% of the length of the marriage; after a marriage of between 5 and 10 years, 60% of the length of the marriage; after a marriage of between 10 and years, 70% of the length of the marriage; after a marriage of between 15 and 20 years, 80% of the length of the marriage; after a marriage of more than 20 years, no limit (except as noted above).
  • The amount of general term alimony payments can be modified on a showing of a material change of circumstances.

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Health Insurance in a Divorce

In Massachusetts, health insurance coverage for spouses after divorce may be continued by statute unless state law is preempted by federal law. Such preemption occurs when the employer is self-insured, in whole or in part. The employer’s human resources or benefits department should be consulted to determine whether state law or federal law applies. Under state law, health insurance coverage can continue until one of the parties remarries. If the party providing the insurance remarries, the other party is eligible for coverage for an indefinite period of time through a rider on the family plan or an individual plan, but typically pays the cost of the coverage, unsubsidized by the employer. If the party not providing the insurance remarries, he or she will be responsible for obtaining independent coverage elsewhere.

Under federal law, health insurance coverage terminates on divorce, subject to the nonemployee’s right to elect continuation coverage under COBRA for a period of up to three (3) years after the divorce. The non-employee spouse typically pays the unsubsidized cost of the COBRA coverage.

Life Insurance in a Divorce

In appropriate circumstances, an award of alimony may be secured by life insurance. If the spouse who will be receiving alimony has no other means of support, he or she would be well advised to take out a new policy on the life of the other to ensure continued financial support if the other dies; by providing such coverage yourself, there can be no question whether or not such coverage will be in place when it is needed.

Income Tax Considerations in a Divorce

Alimony is generally deducted from the taxable income of the paying spouse and included in the taxable income of the receiving spouse. This transfer of income between former spouses shifts the burden of paying taxes on the amount of alimony paid during the year from the paying spouse to the receiving spouse and appropriate adjustments to income tax withholdings or quarterly estimated income tax payments should be made.

Marital Property – Real Estate

For many couples, their home represents one of their most valuable marital assets. For the purposes of a divorce, its current fair market value will be offset by the current balance of any mortgage, home equity loan, or other liability encumbering it; the couple’s equity in the marital home is what is important.

If the couple has any school aged children living in the marital home, the marital home is considered much more than an asset because it is a home base for the children. Generally speaking, a court is unwilling to disrupt the children significantly to divide the equity in the marital home between divorcing parents unless it will simply not be affordable after the parties separate. In such cases, a court is likely to defer the division of the equity in the marital home until the last child graduates from high school or attains the age of 18 or to offset the equity against some other asset to be taken by the parent who leaves the marital home.

Other real estate owned by a couple can be divided at the time of the divorce without delay. Again, it is the equity (fair market value less any mortgages or other encumbrances) which is important.

Marital Property – Retirement Accounts

Retirement accounts such as pensions, tax-deferred savings (401Ks, 403Bs, and IRAs), and tax-deferred annuities can also be divided to achieve the required equitable division of marital assets. Through the use of Qualified Domestic Relations Orders (QDROs) and letters of instructions, such accounts can be allocated between a divorcing couple without the income tax liability normally associated with an early withdrawal from a retirement account.

Marital Property – Personal Belongings

During the course of a marriage, a couple will probably acquire many personal belongings, including motor vehicles, furniture, jewelry, electronic equipment, tools, and many other items. At the time of the marriage, some of these belongings may be very valuable (such as a relatively new car not encumbered by a loan) and others may no longer be worth much (such as a 20-year old kitchen set). Neither courts nor attorneys really want to get into the minutia of deciding who gets what unless the couple cannot or will not work out the division themselves. There are a few general principles to keep in mind: items used by any children living in the home are likely to remain there for their use after the couple separates (their needs come before the desires of the parents) and the division should, taking into account all of the other assets being divided, be equitable.

Marital Property – Liabilities

Marital debt must also be considered in the equitable division of marital assets and liabilities. It is not important whose name is on a particular loan, credit card, or store charge; what matters is whether it was used for the benefit of the family as a whole or for that of the individual person. Thus, credit charges related to a family vacation will be considered marital while those related to a trip to the casino by one of the parties will not.