The real losers in alimony reform: Stay at home spouses in long term marriages. Is there any wiggle room?

Those paying alimony have been pretty vocal in their praise of the new alimony law the details of which are found here. One of the principal “reforms” is to terminate alimony at the payor spouse’s federal retirement age, regardless of whether the payor spouse is in fact retired.  For current payors of alimony in their 60s, that age is 66.  These people (mostly men) are the winners in the new alimony reform law.  The real losers from this new law are stay at home spouses mostly women) in long term marriages.

Here is an example that is a composite (to protect client confidences) of several recent inquiries we have had:

The Husband and Wife married in the 1966, and after twenty five years of marriage divorced in 1991. Their children were teenagers at the time of the divorce and now are adults.  The Wife is now 65 and her Husband is now 67.  When they divorced, their divorce agreement stated that the Wife would receive alimony at the rate of 1/3 of the husband’s income, for so long as the Husband was still working.  Under the new alimony law, the Husband is now eligible to have his alimony eliminated by filing a complaint for modification under the new alimony law regardless of what his divorce agreement stated. The Husband is fully employed, at the peak of his earning capacity, and is likely to work for another ten years at a minimum.  His earning capacity is in excess of $300K and therefore the wife is losing alimony payments which could have totaled one million dollars or more over the next ten years.  Is there anything that we can do for her?

Divorce lawyers all over Massachusetts are eagerly awaiting some experience in the courts for situations such as these. The courts do have discretion under the law to exceed the time limits set in the new law for duration of alimony.  Some of the grounds are:  Advanced age, chronic illness, unusual health circumstances, inability to provide for a party’s own support and lack of employment opportunities. And the new statute also says that the court may deviate for “any other factor that the court deems relevant and material.”  Proving any of these factors could involve considerable expense for litigation, a full twenty years after the divorce was settled.  And no one really knows how the courts will exercise their discretion. Predicting outcomes in these cases will be a challenge but, we do encourage all our clients facing a termination of alimony, to consider whether they can qualify under one of these exceptions contained in the new law before agreeing to a termination of alimony.

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