The “New” Massachusetts Alimony Reform Act of 2011 – what do you need to know?

Massachusetts recently introduced sweeping reforms to the law governing spousal support with the Alimony Reform Act.

While Massachusetts previously had alimony laws, before the new Act took effect different judges applied the law differently from case to case, making the process an uncertain one for the parties and their lawyers. The new law is an attempt to provide more consistency so that parties can be better informed about their options as well as potential outcomes when they go to Court.

The Massachusetts Alimony Reform act establishes four different types of alimony:

  1. General Term Alimony – this is the most common and basic type of alimony as it is simply the periodic payment of support to an economically dependent spouse.
  2. Rehabilitative Alimony – This is alimony paid to a spouse who needs support until they “rehabilitate” themselves to become economically independent.  For example while the spouse completes school or a training program so they can get a job.
  3. Reimbursement Alimony – This type of alimony is to help “pay back” the spouse who supported the other during the marriage to allow that spouse to become successful; for example a spouse who supported the other during medical school.  The now well-paid doctor can make a lump sum or periodic payment of alimony to the spouse who helped them get through school.  This type of alimony can only be used however, if the marriage was five years or less.
  4. Transitional Alimony – This alimony is similar to rehabilitative alimony, but it is used to help the recipient spouse adjust to a different lifestyle or location which is caused by the divorce.  For example, if a couple relocated from Chicago to Massachusetts for a job opportunity, but after the divorce the other spouse wants to return to Chicago, transitional alimony could allow them to relocate, establish a home, and transition them as they readjust to their new lifestyle.  This type of alimony also can only be used when a marriage lasts less than five years.

Each type of alimony has its own exacting set of criteria and corresponding responsibilities.The new law is meant to clarify what form the alimony should take in a given case, but there are still uncertainties as the courts interpret the new law and apply it to different cases.  For now, in applying the alimony law to a particular case, we have to rely on the wording of the new law, and our day to day experience with our cases and in the courts.  If you are concerned about alimony, either because you have an existing alimony order, you may be paying alimony, or you may be seeking alimony, be sure to consult an attorney about the new Massachusetts Alimony Reform Act and how it may apply to you and your case. For more information about the new law, go to The Massachusetts General Laws on Divorce.

In future blogs I will be addressing some specific parts of the new alimony statute, including how long alimony should be paid, the relationship between alimony and child support, and what effect retirement or cohabitation can have on alimony.  Stay tuned!

When a Party is Out of Order, a Complaint for Contempt May Be in Order

A party may file a Complaint for Contempt when they believe another party is not complying with an existing Court Order or Judgment.

Contempts are not uncommon in family law, and are frequently seen when a party is failing to pay court-ordered child support or alimony, or there is some other non-compliance related to a parenting plan or asset division; however, any non-compliance with a Court Order or Judgment can be the basis of a Contempt.

Civil Contempt

There are two types of contempt: Civil Contempt and Criminal Contempt.  In family law we traditionally see Civil Contempts, as the goal is not so much punishment, but for the other party to comply with the Court Order; for example, by getting the other party to pay their child support as ordered. With a Civil Contempt the Court can still order attorney’s fees or other sanctions as part of any contempt judgment.

A Complaint for Contempt is a separate action from a Divorce action or Paternity action; however, often the actions may run concurrently. For example, if a divorce is pending and there are temporary orders for child support, if the responsible party isn’t paying, the aggrieved party could file a Complaint for Contempt to seek compliance with Court Orders.   Other times, parties may already be divorced, and a party may need to file a Complaint for Contempt due to the other party failing to comply with the terms of the divorce agreement.

Proof of Contempt

For the Court to find a party in Civil Contempt, the standard of proof is high. The Court requires a “clear and unequivocal command and an equally clear and undoubted disobedience.” Larson v. Larson, 28 Mass.App.Ct. 338, 340, 551 N.E.2d 43, 44 (1990).  If a Court Order is not clear, even though both parties may know the intent, the Court will not be able to find a party in Contempt. It is vital when a party is entering into an agreement that they wish to become a Court Order, such as a Divorce Agreement, that the language is clear, both so that parties know exactly what they are agreeing to, and also so that the Court can enforce the Order should a Contempt be necessary.

Sanctions for Contempt

The Court has broad powers to enter orders in a Contempt action in order to gain compliance with Court Orders. With respect to the common example of a party failing to pay child support, the Court may find a party in Contempt and order them to jail for a period of time, or until they pay a portion of the monies owed in order to “purge” themselves of the Contempt.  Sometimes the threat of incarceration is enough incentive for a person to comply with a court order.

The Court also has the power to award attorney’s fees or other sanctions such as reimbursement for lost time from work. Even if the Court does not feel that the standard for Contempt has been satisfied, the Court may enter other orders to address whatever underlying issue has resulted in the filing of Contempt complaint.

Defenses for Contempt

Parties should also be aware that there are defenses to a Contempt action. For a party facing a Contempt action for failure to pay alimony or child support, the party may be able to defend successfully against the Contempt if they show they have an inability to pay, for example if they were laid off from their employment, or they may be able to prove that they did comply with the court orders or have a legitimate reason for non-compliance.

Reaching a Settlement

The process of going through a Contempt action can be bittersweet. Even if the end result is monetary or other relief for a party that desperately needs it, that same party may be back in court again, sometimes for the same reason. It is important to work hard to reach agreements or settlements that both parties can live with…and live up to.

Do you really need a lawyer?

In a world of limited time and resources, and where information technology allows much to be obtained from the internet, why consult a lawyer?  Do you really need one?

Lawyers can serve clients in a variety of ways. Regardless of whether you eventually hire a lawyer, a consultation with a lawyer can be a crucial first step in getting the information you need about your legal problem.  You would not buy a house without seeing it or buy a vehicle without a test drive, because the investment is significant and lack of information can result in poor decision making and negative consequences; so too the need for legal advice to understand the many complex issues in divorce and family law, and the effect of those laws on decisions you might make, is important in order to protect your interests.

Beware of Misinformation

There is a lot of misinformation about the law, including on the internet.  The facts of the case of a family member or friend or neighbor or colleague at work, may not be the same as the facts of your case.  The application of the law to your facts and circumstances, and the options and outcomes available, may be vastly different from others.

At a minimum, an in-depth consultation with an attorney can be helpful, where the attorney learns the facts of your case, provides you with legal information and advice specific to your facts, and finds out your goals so they can advise you of the variety of legal options and choices you may have to achieve your desired result.  The information provided in a consultation, can be used to decide whether to go forward with a legal action, what kind of legal process would work best for you, what the positive and negative consequences might be, which of the options or legal processes available would be appropriate for you, whether things like timing or tax consequences or other legal effects are important, what resources are available to you, and cost.  A consultation with an attorney can also help you understand that having legal advice and acting on a legal issue in an informed manner may ultimately benefit you and your family and actually save time and money.

Representing Yourself

We have seen all too often, firsthand, clients who represent themselves without the benefit of legal advice; we are hired later to “pick up the pieces”, sometimes at greater cost than the client would have incurred had they at a minimum at least consulted with an attorney in the first place.  The time and expense of an initial consultation is cheap; the potential consequence of failing to get legal advice from the outset is not, either financially or emotionally or both.  It can be a difficult decision to decide to seek out the assistance of an attorney to discuss what for most people is one of the most painful moments of their lives, but the information gained in a consultation with a lawyer can go a long way to helping a client think rationally about the issue, understand the law and how it applies to their case, and determine their next steps.

Legal Options

There are many different kinds of legal representation, from full representation, to limited assistance representation, to the lawyer providing only consultative services for example when a client is in mediation and wants legal guidance for the mediation process but not representation in the process.  A responsible lawyer will be honest with you and tell you not only whether you need a lawyer, but if you do, in what capacity

Consult with a Lawyer

Think about a consultation with a lawyer as an inexpensive method of information gathering, as a way to educate yourself about your case, and as a way to help you decide whether or not you need a lawyer and what lawyer may be the best fit for you.   Don’t wait to find out whether you need an attorney or not, until after it is too late.