Attorney Ernest H. Hyde interviews Attorney Nancy Catalini Chew on the nuances of Elder Law and the importance of staying abreast of the ever changing law in this area for seniors.  Attorney Catalini Chew is well known in the northern Middlesex region for her presentations at various seminars on the subjects of Elder Law and Estate Planning.

By Ernest H. Hyde

The Alimony Reform Act of 2011 is a vast improvement over the past method of judges guessing, based on case law, what alimony should be.  Payors of alimony will appreciate having some guidance with the amount they should pay without going through a trial only to have a judge make a huge alimony award that makes little or no sense based on the prior statute that governed their reasoning.  The new law does not entirely remove the reasoning of judges but set parameters that more precisely guide them to a conclusion and limits the amount of time alimony must be paid based on the length of the marriage.  Below are the highlights of the Legislation awaiting signature by the Governor.

I will put notes along the way where I think an explanation is require for anyone unfamiliar with alimony.

Definitions of alimony are finally made clear.  They are:

“Alimony”, the payment of support from one spouse to another for a reasonable length of time, pursuant to a court order and for the purpose of providing a spouse in need of support periodic payments from a spouse who has the ability to pay it.

“General term alimony”, the periodic payment of support to a recipient spouse who is economically dependent.

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

NOTE: This was done in the past based on case law and practices of some judges but not memorialized in a statute.

“Reimbursement alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years and for the purpose of compensating the recipient for economic or non-economic contribution to the financial resources of the payor spouse, such as enabling the payor spouse to complete an education or job training.

NOTE: This was also done without much emphasis by judges in the past by taking into consideration the contributions to the marriage an element of Chapter 208, Section 34.

“Transitional alimony”, the periodic or one-time payment of support to a recipient spouse after a marriage of not more than 5 years and for the purpose of transitioning the recipient to an adjusted lifestyle or location as a result of the divorce.

NOTE: New to an extent but needed in some cases where the non-payor has the ability to earn a living but the parties have made a conscious decision that the non-payor will stay at home for whatever reason.

“Duration of marriage”, the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage. The court shall have discretion to increase the duration of marriage where there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.

“Full retirement age”, the payor’s usual or ordinary retirement age for United States old-age social security benefits. It shall not mean “early retirement age” if early retirement is available to the payor or “maximum benefit retirement age” if additional benefits are available as a result of delayed retirement.

NOTE: Under Social Security, there are generally two ages at which people may receive benefits.  Full retirement age and early retirement age.  Early retirement comes earlier in life but also comes with less benefit than retiring at full retirement age.

TERMINATION OF ALIMONY

NOTE: Not all alimony ordered by the courts will be for life any more.  This is a huge change for both payors and recipients.

General term alimony shall terminate upon the remarriage of the recipient or the death of either spouse; provided, however, that the court may require the payor spouse to provide life insurance or another form of reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

Except upon a court finding that deviation beyond the time limits of this section are required in the interests of justice, where the 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:

(1) If the duration of marriage is 5 years or less, general term alimony shall be no greater than one-half the number of months of the marriage.

(2) If the duration of marriage is 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.

(3) If the duration of marriage is 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.

(4) 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.

COHABITATION OF NON-PAYOR

NOTE: This is another great feature of the new law that has now eliminated the recipient from simply cohabitating in order to continue receiving support from the payor.  It also removes the impediment to marriage by former spouses if they wish to remarry.

General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household, as defined below, with another person for a continuous period of at least 3 months.

(1) Persons are deemed to maintain a common household when they share a primary residence together with or without others. In determining whether the recipient is maintaining a common household, the court may consider any of the following factors:

(i) oral or written statements or representations made to third parties regarding the relationship of the cohabitants;

(ii) the economic interdependence of the couple or economic dependence of 1 party on the other;

(iii) the common household couple engaging in conduct and collaborative roles in furtherance of their life together;

(iv) the benefit in the life of either or both of the common household parties from their relationship;

(v) the community reputation of the parties as a couple; or

(vi) other relevant and material factors.

(2) An alimony obligation suspended, reduced or terminated under this provision may be reinstated upon termination of the recipient’s common household relationship; but, if reinstated, it shall not extend beyond the termination date of the original order.

Unless the payor and recipient agree otherwise, general term alimony may be modified in duration or amount upon a material change of circumstances warranting modification. Modification may be permanent, indefinite, or for a finite duration, as may be appropriate under the circumstances before the court. Nothing in this section shall be construed to permit alimony reinstatement after the recipient’s remarriage, except by the parties’ express written agreement.

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, provided that:

(1) When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown. In granting deviation, the court shall enter written findings of the reasons for deviation.

(2) The court may grant a recipient an extension of an existing alimony order for good cause shown. In granting an extension, the court shall enter written findings of:

(i) a material change of circumstance that occurred after entry of the alimony judgment; and

(ii) reasons for the extension that are supported by clear and convincing evidence.

Rehabilitative alimony shall terminate upon the remarriage of the recipient, or the occurrence of a specific event in the future, or the death of either spouse; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

The alimony term for rehabilitative alimony shall be no more than 5 years. Unless the recipient has remarried, the rehabilitative alimony may be extended on a complaint for modification upon a showing of compelling circumstances in the event that:

(1) unforeseen events prevent the recipient spouse from being self-supporting at the end of the term with due consideration to the length of the marriage;

(2) the court finds that the recipient endeavored to become self-supporting; and

(3) the payor has continuing ability to pay and no undue burden.

The court shall have discretion to modify the amount of periodic rehabilitative alimony based upon material change of circumstance within the rehabilitative period.

(a) Reimbursement alimony shall terminate upon the death of the recipient or a date certain.

(b) Reimbursement alimony may not be modified by either party.

(c) Income guidelines set forth in this statute shall not apply to reimbursement alimony.

Transitional alimony shall terminate upon the death of the recipient or a date certain that is not longer than 3 years from the date of the parties’ divorce; provided, however, that the court may require the payor to provide reasonable security for payment of sums due to the recipient in the event of the payor’s death during the alimony term.

(a) Transitional alimony may not be modified, extended or replaced by another form of alimony.

DETERMINING ALIMONY TYPE

In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; both parties’ income, employment and employability, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court may deem relevant and material.

(a) 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 per cent to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued. Subject to subsection (b), income shall be defined as set forth in the Massachusetts child support guidelines, as they may be amended from time-to-time.

(b) For purposes of setting an alimony order, the court shall exclude from its income calculation:

(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, however, 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.

(a) In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include:

(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 his or her own support by reason of physical or mental abuse by the payor;

(8) a party’s inability to provide for his or her own support by reason of a party’s deficiency of property, maintenance or employment opportunity; and

(9) upon written findings, any other factor that the court deems relevant and material.

In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed.

ALIMONY ORDER WITH CHILD SUPPORT

Where the court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony duration available at the time of divorce; or (ii) rehabilitative alimony commencing upon the termination of child support.

CHANGE OF CIRCUMSTANCES

Sections 48 to 55, inclusive, shall not be deemed a material change of circumstance that warrants modification of the amount of existing alimony judgments; provided, however, that existing alimony judgments that exceed the durational limits set forth in section 49 shall be deemed a material change of circumstance that warrant modification. Existing alimony awards shall be deemed general term alimony, and shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted.

(b) Under no circumstances shall sections 48 to 55, inclusive, provide a right to seek or receive modification of an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions survive the judgment and therefore are not modifiable.

(c) In the event of the payor’s remarriage, income and assets of the payor’s spouse shall not be considered in a redetermination of alimony in a modification action.

(d) 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.

SECURITY FOR ALIMONY

The court may require reasonable security for alimony in the event of the payor’s death during the alimony period. Security may include, but not be limited to, maintenance of life insurance.

Orders to maintain life insurance shall be based upon due consideration of the following factors: age and insurability of the payor; cost of insurance; amount of the judgment; policies carried during the marriage; duration of the alimony order; prevailing interest rates at the time of the order and other obligations of the payor.

Orders to maintain security shall be modifiable upon a material change of circumstance.

Section 49 of chapter 208 of the General Laws shall be prospective, such that alimony judgments entered before March 1, 2012 shall terminate only as set forth in subsection (b) of said section 49.

MODIFICATIONS OF ALIMONY JUDGMENTS

Any complaint for modification filed by a payor pursuant to section 54 of chapter 208 of the General Laws solely because the existing alimony judgment exceeds the durational limits set forth in section 49 of said chapter 208, may only be filed pursuant to the following:

(1) Payors who were married to the alimony recipient 5 years or less, may file a modification action on or after March 1, 2013.

(2) Payors who were married to the alimony recipient 10 years or less, but more than 5 years, may file a modification action on or after March 1, 2014 .

(3) Payors who were married to the alimony recipient 15 years or less, but more than 10 years, may file a modification action on or after March 1, 2015.

(4) Payors who were married to the alimony recipient 20 years or less, but more than 15 years, may file a modification action on or after September 1, 2015.

Notwithstanding the provisions of clauses (1) to (4) above of this act, any payor who is eligible for the full old-age benefit under the United States Old Age, Disability, and Survivor Insurance Act, 42 U.S.C. 416, or who will become eligible for said benefit on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013.

This Act shall take effect on March 1, 2012 .

NOTE: All and all, this new law is a giant step in the right direction to leveling the playing field for both of the divorcing parties.  It provides support where needed while considering the ability of the payor to have a life after divorce.  It isn’t perfect and I expect it will further evolve but, if followed by the courts, it should be a vast improvement over current and past practices.

To see a video interview with one of the Bill sponsors go to

http://westfordcat.pegcentral.com/player.php?video=c1b952ad9305d3113c384f6e9943f568

Attorney Ernest H. Hyde interviews Representative Sheila Harrington, from the 1st Middlesex District, a sponsor of the new law on alimony and a member of the Judiciary Committee, regarding its status and content.  The new law finally defines the terms of alimony in Massachusetts and the duration of the alimony payments.

Attorney Ernest H. Hyde interviews Attorney Thomas A. Gibbons in the Westford CAT studio on the new Massachusetts Homestead law passed in 2011.  The new law is vastly improved from the old law by making some homestead protection automatic and protecting real estate in trusts.

Host Ernie Hyde invited fellow attorney Robert Markley into the Westford CAT studio to talk about what people need to prepare for when they try to take advantage of the increased foreclosures and short sale opportunities available in today’s real estate market.

Attorney Ernest H. Hyde interviews State Representative and Attorney Sheila Harrington and Attorney Kristin A.Bullwinkel on the current functions of the courts in Massachusetts and the potential for forming a Unified Court System.

Attorney Ernest H. Hyde interviews Attorneys Anna Eliot and Donalda Vaccaro about the Juvenile Court System in Massachusetts.  The objective is to inform viewers of what they can expect if they or their children become involved in the juvenile court.

Attorney Christopher Lilly explains the newly enacted harassment protection law and how it differs from domestic restraining orders.

Governor Patrick signed into law a new statute dealing with bullying in the schools of the Commonwealth of Massachusetts on May 3, 2010.  This article discusses what the law is and what it is not.

First, the Legislature has included in this law the requirement that the Governor proclaim each year on the fourth Wednesday in January, “No name calling day.”  In more substantive sections of the law they have defined bullying as, “the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that : (i) causes physical or emotional harm to the victim of damages the victim’s property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantively disrupts the education process or the orderly operation of a school.  For the purposes of this section, bullying shall include cyber-bullying.”  Cyber-bullying is also defined in the statute.

A victim must be student.  Bullying is prohibited on school grounds, on property immediately adjacent to school grounds, at school sponsored or related activities.  This includes at bus stops, on the bus or other vehicle owned, rented or leased by the school district.

Each school district, public or private must develop and adhere to and update a plan to address bullying prevention and intervention in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardian.  The plan must contain descriptions of and statements prohibiting bullying, cyber-bullying and retaliation, clear procedures for handling bullying complaints and provisions for anonymous reporting, although no disciplinary action may be taken against a student based solely on an anonymous report.  The plan must also define a range of disciplinary actions that may be taken against the perpetrator.  Schools must notify both the bully’s parents and the victim’s parents of any report taken.  Student making false reports are subject to disciplinary action.

Each school is required to give annual notice to students, parents and guardians of relevant sections of the plan.  They must post the plan on their website.  All school staff is required to report to the principal any instances of bullying or retaliation.  The principal will decide if law enforcement agencies should be notified if the bullying constitutes criminal activity.

Lastly, four criminal statutes have been amended as a result of this law.  They are the laws dealing with Stalking, Criminal Harassment, Intimidation of a Witness and the Annoying Phone Calls.  Each of these statutes have been amended by adding wording to them that include cyber-communications as a potential act that could violate the law.

A committee is established under this law to review the law to determine if changes are necessary as time passes.  Also, schools need to file their plans with the state by December 31, 2010.

Now for what the law doesn’t have.  This new law does not create a private right of action.  This means that this law does not create any new ground for a law suit against the perpetrator that did not previously exist.  Other theories of law may support a suit against the perpetrator, such as intentional infliction of emotional distress, assault and battery, harassment and the likes.  It also does not have any penalty prescribed for failing to report bullying by any member of the school staff, including cafeteria workers, bus drivers, paraprofessionals, volunteers, coaches, advisors, custodians, educators, administrators and school nurses.  There is nothing in the law that resembles the duties of a mandatory reporter as is including in child abuse statutes such as 51A which define who a mandatory report is and what their responsibilities are with respect to reporting abuse.
The law also does not create any new criminal laws against bullying, rather, as mentioned above, it beefs up existing laws to include actions previously not stated in the law such as cyber-communications like email, messaging, blogs, and websites as means for violating the laws.
The law in its entirety can be found at http://www.mass.gov/legis/laws/seslaw10/sl100092.htm.

In Massachusetts, the child support guidelines are used by the Probate Court to calculate child support whenever the parents of a child are no longer living together.  This applies whether the parents of the children are married or unmarried, and in all temporary, permanent or final orders for current child support.  In all orders where an order for child support is requested, a guideline worksheet must be filled out, regardless of the income of the parties.

On January 1, 2009, the guidelines will change.  Although the amount of child support payed to the custodial parent will be different under the new guidelines, existing child support orders cannot be modified for three years unless there is a change in health insurance or a  material change in circumstances.

There are, however, circumstances where the new guidelines will not apply.  If any of the following circumstances exist, the court will be allowed to deviate from the guidelines: If,

• parties agree and court approves it
• child has special needs or aptitudes
• child has extraordinary medical or other expenses
• application of guidelines leaves a party without the ability to self support
• payor is incarcerated, is likely to remain so for 3 years and has no assets
• application of guidelines would lead to gross disparity in income
• parent has extraordinary medical expenses
• parent has extraordinary travel or other expenses related to parenting
• application of guidelines may adversely impact re-unification of parent and child
• application is not in the best interest of the child.

There are many changes in the child support guidelines.  The new guidelines specify how military pay, Social Security Disability Income and self-employment income should be accounted for.  The new guidelines also recognize Massachusetts’ health insurance mandate and provide a larger benefit for health insurance premiums.  The amount the non-custodial parent pays, in most cases, will be higher, but the custodial parent is no longer given a $20,000 credit.  Below is a side-by-side comparison of the major changes in the new support guidelines.

For the full guideline text and worksheet go to: http://www.mass.gov/courts/childsupport/index.html

and for a video presentation of the Legal Ease Show CLICK HERE.