In Massachusetts, Alimony is defined by the Alimony Reform Act 2011 (the “Act”). We previously examined how the law outlines “necessity” and what case law has developed around this definition: Maintenance: you get what you need! The question we are examining today is whether this definition of need includes saving for the future or retirement.
Chapter 208 Section 53 of the Massachusetts General Laws states:
“a) When determining the appropriate form of maintenance and determining the amount and duration of the support, a court shall take into account: the length of the marriage, the age of the parties, the health of the parties, the income, employment and employability of both parties, including Employability through due diligence and additional training as necessary, economic and non-economic contribution of both parties to the marriage, marital lifestyle, ability of each party to maintain the marital lifestyle, lost economic opportunities as a result of the marriage, and such other factors as the court deems relevant and material. “(Emphasis added) The language in bold above seems to provide a possible argument that the ability to store (if it was a marriage practice) is relevant to what the recipient” needs “. Often the debtor still has the option to save for retirement. So when alimony payments are so low that a recipient cannot save, inequality arises. The Young versus Young ruling examined in this paper appears to limit future savings when it is not part of the marital lifestyle (restricting the inclusion of future income increases of a payer), but does not directly address this problem.
There is a case before the law (2004) dealing with this issue and the question remains whether or not this case is still lawful given the new definition in the law. Cooper v. Cooper was an alimony and alimony mod where the appeals court found the lower court had gone too far with the alimony increase, stating:
“To the extent that the price depends on the judge’s determination that it was made in part as a guarantee[e] future continuity of the former marital ward ‘it was also inappropriate. A maintenance allowance that exceeds current needs in order to enable an accumulation of assets or savings for the future can only be appropriate if this allowance is made in accordance with GL c. 208, § 34. ‘Under GL c. 208, § 34, maintenance and asset allocation are related. . . . The necessity is an essential element, but obviously not the only one in a fair distribution of property according to § 34. “Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903: 904 (1992). “While Cooper is a pre-act case, he gives a hint of other ways to address age needs in addition to maintenance by referring to the property division act. Arguably when the maintenance payer has a greater ability to Um To save for retirement, the dependent may need to have a larger share of the existing retirement in the division of property to account for this inequality. This is of course only an option if there are enough assets to be divided at the time of the maintenance. and the aim of the court is not to create financial equality between the parties indefinitely (as the Young case shows), but to fairly share property at the time of divorce, whatever that means.
Ultimately, the answer to that question is excellent and we may receive additional guidance if someone raises the issue on appeal. In the meantime, divorced spouses can continue to be creative in how they argue and resolve disputes that relate to the just way of addressing their needs now and in the future. Mediation and collaborative law encourage spouses to expand the conversation in this way, addressing short and long term goals, resolving conflicts today and preventing them from reoccurring in the future.
For more information on alimony, mediation, and collaborative law, please visit Skylarklaw.com.
For more information on retirement planning, please visit GrayJayEndeavors.com.
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