Marital way of life is just not an element to think about in figuring out size of upkeep allowance | Burns & Levinson LLP

In 2011, the Alimony Reform Act provided that alimony is “the payment of maintenance by a solvent spouse to a dependent spouse for a reasonable period of time”. GL c. 208, §48. The “reasonable length of time” over which alimony is to be paid has presumed time limits based on the length of the marriage. According to GL c. 208, §53, when making the original award or amending a maintenance award, the court may derogate from the time limits “after a written determination that a derogation is necessary.” The law provides for reasons for deviation as follows:

(1) advanced age; chronic illness; or unusual health conditions of either party;

(2) tax considerations applicable to the parties;

(3) whether the paying spouse provides health insurance and the cost of health insurance to the receiving spouse;

(4) whether the paying spouse has been instructed to obtain life insurance for the benefit of the receiving spouse and the cost of such insurance;

(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuities, and investment income from assets not allocated upon the parties’ divorce;

(6) significant premarital cohabitation, including an economic partnership or marital separation of significant duration, each of which the court may take into account in determining the duration of the marriage;

(7) the inability of either party to support itself due to physical or mental abuse by the payer;

(8) the inability of either party to provide for its own support due to that party’s lack of property, support or employment opportunity; and

(9) in the case of written findings, any other factor the court considers relevant and material.

In the recent Voorhis v. Relle has clarified the Court of Appeals that the inability to maintain the marital lifestyle is not one of the factors to consider in determining whether a deviation from the permanent limits is warranted. Factor (8) above – inability to support oneself – is not the same as inability to maintain the marital lifestyle. In deciding whether a deviation from the time limits is justified, the court must consider the current circumstances, not the standard of living enjoyed during the marriage.

In the case of Voorhis v. Relle was awarded custody of the parties’ four children after 18 years of marriage, and the husband was ordered to pay alimony and child support. Four years later, the woman was arrested and later pled guilty to negligent manslaughter in connection with a drunk car accident. She served over eight years in prison, during which time the children were supported solely by the husband, who continued to pay reduced alimony to the wife. Shortly before the wife was released from prison, the husband filed an amendment to seek termination of his alimony for having paid alimony for longer than was required under the duration limits. The husband was then earning a base salary of $273,000 per year, plus a performance bonus. The wife was employed at Home Depot and earned $15.75 an hour, had an income of $4,000 a year from a parking lot she owned and had an income of $15,000 a year from an IRA she inherited. She was also the beneficiary of a trust that held assets in excess of $1.3 million. The Trust paid several expenses for the wife after her release from prison, including rent and legal fees. Although the wife’s income was certainly lower than the husband’s and provided her with a lifestyle markedly inferior to that during marriage, it could not be said that she was unable to support herself. The wife cited her alcoholism as a factor justifying a deviation, but could not show that it was a chronic condition preventing her from working. Taking into account all of the factors in Section 53, it was found that the wife failed to meet her burden of proving that there was a need in the interest of justice to deviate from the time limits.

Deviating from the permanent limits requires more than just a reduced lifestyle.

Until next time.