Alimony in Gay & Lesbian Divorce

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Below we have provided answers to many of the common questions that we are asked about Alimony and how it is different for same-sex couples.

If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

How is Same-Sex Alimony Different?

In many ways divorce law in Massachusetts treats same-sex marriages and opposite-sex marriages the same. For that reason we have included on this page many of the frequently asked questions about alimony below. However, it is also important for you to be aware of the few ways in which these cases will differ from opposite-sex cases. If you are facing a same-sex divorce, failing to recognize these differences or hiring counsel that is not aware of these differences could result in a significantly worse financial result in your case. Below we have provided just some of the ways that these cases can differ from opposite-sex alimony cases:

LENGTH OF THE MARRIAGE: M.G.L. c. 208 Section 34 lists the factors that the court must consider when awarding alimony or division of property, and one of those factors is "length of the marriage." The "length of marriage" factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.

ALIMONY: Because same-sex former spouses cannot be considered spouses for federal tax returns, they cannot take a tax benefit associated with a former spouse. Therefore, alimony payments made to a same-sex former spouse do not qualify as tax deductible income to the payor and cannot be categorized as alimony payments for federal tax purposes.

ENFORCEMENT OF ORDERS OUT-OF-STATE: A few states that do not permit same-sex marriages, most vocally Texas, have refused to recognize same-sex divorce as well. In opposite-sex marriages, marriages from one state are recognized by all of the other states. However, the federal law DOMA (the "Defense of Marriage Act") states that no state is required to recognize same-sex marriages from other states. Therefore states that don't allow same-sex marriages can choose to not recognize same-sex marriages from other states as valid marriages. This means that they may also refuse to enforce same-sex Divorce Judgments against their state residents. Court Orders which may otherwise be enforceable across state lines, may lose their effect if your ex-spouse moves to one of these uncooperative states.

Frequently Asked Alimony Questions:

How long will I get Alimony for?
How long do I have to pay Alimony for?
What is included in income for calculating Alimony?
Does a second job count in calculating Alimony?
Is Alimony Support tax deductible?
Does Alimony Stop at Retirement?

What is Alimony?

Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so.

Same-Sex Divorce TIP: There are two differences in how alimony may be calculated in a same-sex divorce case. The first difference is that the Section 34 Factors may not be applied the same way in a same-sex divorce case because same-sex marriage has only been available as a right since 2004. The "length of marriage" factor may be applied differently if the couple was together long before they had the right to marry in Massachusetts. This could also be an issue for couples who first lived together in a state where same-sex marriage was not legal but who then later moved to Massachusetts and got married.

The second difference in how alimony may be calculated relates to a taxation issue, which is different for same-sex marriages. Currently DOMA (the "defense of marriage act") prevents the IRS from treating same-sex marriages as marriages for tax purposes. Traditional Alimony is included as taxable income to the Recipient and tax deductible to the Payor, but in same-sex divorces the parties are not recognized as married and are therefore denied this tax benefit. As long as DOMA is applied by the IRS, alimony Payors from same-sex marriages will not receive the tax benefit of deducting alimony. There is an argument that this should affect the calculation of what is a fair alimony payment. You should consult an attorney if you have questions about the Section 34 factors or how these factors can be affected by issues unique to same-sex marriages.

Until 2011, there was no formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. However, on September 26, 2011, Governor Deval Patrick signed into law The Alimony Reform Act of 2011, which becomes effective on March 1, 2012. Once effective, the act provides for multiple types of alimony, and for maximum amounts and duration of alimony.

Pursuant to the new law the types of Alimony are defined as follows:

General Term Alimony: periodic payment of support to a recipient who is economically dependent.

Rehabilitative Alimony: periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment, completion of job training; or receipt of a sum due from the payor spouse pursuant to a judgment.

Reimbursement Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of compensating the recipient for economic or noneconomic contributions to the financial resources of the payor spouse, such as enabling the payor spouse to complete and education or job training.

Transitional Alimony: periodic or one-time payment of support to a recipient spouse after a marriage of not more than five years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce.

The new law also defines the maximum amount of Alimony:

Except for Reimbursement Alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30% to 35% of the difference between the parties gross incomes.

Below we have provided more information about this new law and the resolution of alimony disputes in Massachusetts. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.

How long will I get Alimony for?
How long do I have to pay Alimony for?

The new law also limits the duration of General Term Alimony:

General Term Alimony Ends Upon:

• Remarriage of the recipient;
• Death of the recipient;
• Death of the payor (though the court may order life insurance or reasonable security for payment of sums due to the recipient in the event of the payor's death during the alimony term);
• Except when the court finds that deviation is warranted, upon the expiration of the duration formula calculated below;
• Upon the cohabitation of the recipient spouse with another person for a continuous period of at least three months (may also result in suspension or reduction instead of termination;
• 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.

When duration of marriage is 20 years or less, general term alimony shall terminate no later than a date certain in accordance with durational limits set forth below:

• Marriage of 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.
• Marriage of 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 per cent of the number of months of the marriage.
• Marriage of 15 years or less, but more than 10 years, general term alimony shall be no greater than 70 per cent of the number of months of the marriage.
• If the duration of marriage is 20 years or less, but more than 15 years, general term alimony shall be no greater than 80 per cent of the number of months of the marriage.
• The court shall have discretion to order alimony for an indefinite length of time for marriages longer than 20 years.

The deviation factors which could result in a different amount or duration are:

• Advanced age; chronic illness; or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of heath insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• 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;
• Significant premarital cohabitation that included economic partnership and/or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party's inability to provide for his or her own support by reason of physical or mental abuse by the payor;
• A party's inability to provide for his or her own support by reason of a party's deficiency's of property, maintenance or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

Even if a duration is set in an order, most of the time alimony is merged into the Divorce Agreement, which means that the amount and duration of alimony can be changed at a later date if either party files a Complaint for Modification and is able to demonstrate to the Court a significant material change in circumstances that warrants a change in the order.

What is included in income for calculating Alimony?

Under the new law, income shall be defined as set forth in the Massachusetts Child Support Guidelines. However, two types of income are specifically excluded:

(1) Capital gain income and dividend and interest income which derives from assets equitably divided between the parties under Section 34; and (2) Gross income which the court has already considered for setting a child support order whether pursuant to the Massachusetts Child Support Guidelines or otherwise; provided that nothing in this section shall limit the court's discretion to cast a presumptive child support order under the Child Support Guidelines in terms of unallocated or undifferentiated alimony and child support.

Income can include income not recognized or taxed by the IRS and if you are unsure of what should or should not be included you should consult with your attorney.

Does a second job count in calculating Alimony?

Under the new law, income from a second job or overtime work shall be presumed immaterial to alimony modification if:

(1) A party works more than a single full-time equivalent position; and

(2) The second job or overtime commenced after entry of the initial order.

Is Alimony tax deductible?

Alimony is income to the Recipient and should be included as taxable income on the Recipients state and federal income tax returns. Alimony is tax deductible to the Payor, and sometimes even payments made on behalf of an ex-spouse, such as health insurance payments may also be tax deductible. You should consult with your attorney to discuss the specific facts of your case if you think you might be making other payments which could be tax deductible as well.

Does Alimony Stop at Retirement?

Under the old law, alimony did not necessarily end upon retirement. Although retirement does typically represent a material and significant change in circumstances, warranting a Modification, whether or not alimony will end or be reduced was still dependent on all of the statutory factors. In a decision published on November 9, 2009, the Massachusetts Supreme Judicial Court rejected a Husband's argument that his alimony should end upon retirement. Rudolph F. Pierce vs. Carnecie G. Pierce, SJC - 10381, Nov. 9, 2009.

This was one of the major changes under the new law: Alimony presumptively ends, 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. The presumption can be rebutted but it requires clear and convincing evidence.



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