The marital life-style just isn’t an element to be thought of when departing from the upkeep restrict Burns & Levinson LLP

In 2011, the Maintenance Reform Act stated that maintenance is “the payment of support from a spouse who has the ability to pay to a spouse who needs support for a reasonable period of time”. GL c. 208, §48. The “reasonable time span” in which maintenance is to be paid has putative duration limits based on the length of the marriage. According to GL c. 208, §53, the Court of Justice may deviate from the time restrictions when determining the original award or at the time a maintenance allowance is changed, “if it is established in writing that a deviation is necessary”. The law provides for the following reasons for deviations:

(1) advanced age; chronic illness; or any party’s unusual health condition;

(2) tax considerations for the parties;

(3) whether the paying spouse takes out health insurance and the costs of health insurance for the beneficiary spouse;

(4) whether the paying spouse has been instructed to take out life insurance in favor of the beneficiary spouse and the cost of that insurance;

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

(6) significant pre-marital cohabitation, including economic partnership or significant duration of marital separation, which the court may consider in determining the duration of the marriage;

(7) a party’s inability to provide that party’s own assistance due to physical or mental abuse by the payer;

(8) any party’s inability to provide that party’s own assistance due to that party’s lack of property, maintenance or employment opportunities; and

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

In Voorhis’ latest ruling against Relle, the appeals court made it clear that the inability to maintain the marital lifestyle is not one of the factors that needs to be considered in determining whether a departure from the duration limit is warranted. The above factor (8) – inability to support oneself – is not the same as the inability to maintain the marital lifestyle. In determining whether a departure from the duration limits is warranted, the Court must take into account the current circumstances, not the standard of living during the marriage.

In Voorhis v. After an 18-year marriage, Relle was given custody of the parties’ four children and the husband was required to pay alimony. Four years later, the woman was arrested and later found guilty of manslaughter in connection with a drunken traffic accident. She was imprisoned for over eight years. During this time the children were supported exclusively by the husband, who continued to pay reduced maintenance payments to the wife. Shortly before the woman was released from prison, the husband filed an amendment action to end the maintenance obligation because he had paid maintenance longer than the duration limit. The husband then earned a base salary of $ 273,000 per year plus a bonus based on performance. The woman was employed by Home Depot and earned $ 15.75 an hour, earned $ 4,000 a year in a parking lot she owned, and earned $ 15,000 a year from an IRA she inherited. She was also the beneficiary of a trust that had more than $ 1.3 million in assets. The Trust paid several expenses for the woman after she was released from prison, including rent and legal fees. While the wife’s income was certainly lower than that of the husband, leaving her with a lifestyle that was significantly inferior to that during the marriage, it could not be said that she was unable to provide for her own support. The woman raised her alcoholism as a factor justifying a deviation, but could not prove that it was a chronic condition that prevented her from working. Considering all the factors of Section 53, it was found that the wife failed to meet her burden of establishing a need to deviate from the duration limits in the interests of justice.

Deviations from the duration limits require more than just a reduced lifestyle.

Until next time.

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