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NISSENBAUM’S STANDARD SET OF

 SUMMARIES OF LAW - DIVORCE

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 V. Alimony.

5.1 The Trial Judge is vested with considerable discretion in awarding alimony. Fechtor v. Fechtor, 26 Mass. App. Ct. 859 at 867.

5.2 a. Traditionally, alimony existed to provide economic support to dependent spouses, Fugere v. Fugere, 24 Mass. App. Ct. 758, 761 (1987), based upon the property and condition of the payor spouses. Goldman v. Goldman, 28 Mass. App. Ct. 603, 611, 554 N.E.2d 860 (1990). See, also, Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).

b. [T]he fundamental purpose of alimony [is] to provide economic support to the dependent spouse..."

      Gottsegen v. Gottsegen 397 Mass. 617, 623 (1986).

     Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985) (even "scrupulous and careful" effort by the probate judge is inadequate if it failed "adequately to take into account traditional alimony considerations and resulted in an inequitable award"), quoting Partridge v. Partridge, 14 Mass. App. Ct. 918, 919 (1982).

       And, see: Fugere v. Fugere , 24 Mass. App. Ct. 758, 760 (1987) (modification decision must be based upon a balancing of all the financial and equitable factors).

       Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 570 (2001) (modification must be "consistent with common sense and justice").

5.3 The determination of alimony rests in the broad discretion of the trial court after a consideration of all the relevant facts. Lavallee v. Lavallee, 3 Mass. App. Ct. 736 (1975).

5.4 The amount of alimony a Court may award rests within the judge's discretion after consideration of all the facts; including the wife's needs, the husband's financial worth, and the parties' station in life and mode of living. Richman v. Richman, 335 Mass. 395 (1957).

5.5 a. In deciding whether a support provider has the ability to meet his support obligations, the judge must consider all attendant circumstances. Accordingly, the Court should not be restricted to consideration of actual earnings, but may also consider earning power and past earnings. Schuler v. Schuler, 382 Mass. 366, 374 (1981).

b. "Common sense and basic concepts of fairness support the notion that ownership of a valuable asset demonstrates ability to pay without further inquiry as to whether payment can be enforced directly against the asset. . . . The law does not require that an obligor be allowed to enjoy an asset -- such as a valuable home or the beneficial interest in a spendthrift trust -- while he neglects to provide for those persons whom he is legally required to support." Krokyn v. Krokyn, 378 Mass. 206, 213-214, cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

c. For alimony purposes "[i]t would be manifestly unfair to permit [a party] to hide behind . . . [a presumed] transfer of [some interest in assets] into [another person’s] name, to evade [an alimony] obligation .... [by such a] self-imposed [transaction or encumbrance]." Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (1997).

5.6 The Court may also consider a continuing stream of money from any source as being available to pay alimony or child support. Mass. Child Support Guidelines.

5.7 a. The critical issue in an alimony dispute is the dependent spouse's actual need for support and maintenance at a standard commensurate with that enjoyed during the marriage. Partridge v Partridge, 14 Mass. App. Ct. 918, 919 (1982). Putnam v. Putnam, 5 Mass. App. Ct. 10, 15, n.6 (1977); Lynch v. Lynch, 5 Mass. App. Ct. 167. 170 (1977).

b. It is a public policy to not make an order that would result in a party becoming a public charge. See O'Brien v. O'Brien, 325 Mass. 573, 578 (1950); Knox v. Remick, 371 Mass. 433, 437 (1976); Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

5.8 The standard of need is measured by the station of the parties - by what is required to maintain a standard of living comparable to the one enjoyed during the marriage. Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985) (emphasis supplied). See, also, Meghrablian v.Meghrablian, 13 Mass. App. Ct. 1021, 1022-1-23 (1982); Belsky v., 9 Mass. App. Ct. 852 (1980); Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 14 (1979)(short marriage); Rice, supra.

5.9 In Grubert, the Wife's earnings from part-time employment, together with the alimony ordered by the court, did not permit her to provide for her minimum needs. The court held that minimum was not the appropriate standard for her to have upon divorce. Rather the trial justice was required to enter an order which would permit the Wife to continue at the considerably higher standard of living which had appertained during the marriage, especially where the husband could afford greater payments. Grubert v. Grubert, 20 Mass. App. Ct. 811, 820-821 (1985).

5.10 The focus of any financial award must include "the crucial issue in an alimony dispute, namely, the [spouse's] need for support and maintenance in relationship to the respective financial circumstances of the parties." Gottsegen v. Gottsegen, 397 Mass. 617, 623-24 (1986) (cited in Goldman v. Goldman, 28 Mass. App. Ct. 603 (1990)).

5.11 In awarding alimony and making an equitable division for the marital estate, the court must give attention to the standard of living that each for the parties had become accustomed to during the marriage. Rice v. Rice, 372 Mass. 398 (1977).

5.12 An award of alimony should take into consideration "the wife's needs in light of her station in life during the marriage." Goldman v. Goldman, 28 Mass. App. Ct. 603, 612 (1990) (emphasis supplied).

5.13 The precise need or standard of living is only one of several factors which must be considered in setting the amount of alimony to be paid to the dependent spouse. Robbins v. Robbins, 16 Mass. App. Ct. 576, 580 (1983).

5.14 a. Absent good reason, there is no justification for the lifestyle of one spouse to go down while the other remains high. Goldman v. Goldman, 28 Mass. App. Ct. 603, 611 (1990). Grubert v. Grubert, 20 Mass. App. Ct. 811, 820-821 (1985).

b. Absent some good reason, the financial orders in an divorce judgment should not cause the standard of living of a spouse to drop exceptionally low while that of the other spouse remains high. Denninger v. Denninger, 34 Mass. App. Ct. 429 (1983) at 443.

5.15 There is no justification to limit alimony in time, particularly when the future security available to a wife from her own assets would quickly be lost when alimony ends and the husband is financially secure and his limitations on his ability to support the wife are self-imposed. Barron v. Barron, 28 Mass. App. Ct. 755 (1990); Larson v. Larson, 37 Mass. App. Ct. 106 (1994).

5.16 In awarding alimony and making property assignment the court must give attention to the standard of living to which each of the parties had become accustomed during the marriage. Rice v. Rice, 372 Mass. 398, 361 N.E. 2d 1305 (1977).

5.17 a. Alimony should be based on the standard of need as measured by the station of the parties, that is, by what is required to maintain the standard of living comparable to the one the wife enjoyed during the marriage. Fugere v. Fugere, 24 Mass. App. Ct. 758, 760-761 (1987); Grubert v. Grubert , 20 Mass. App. 811, 819 (1985) (citing Rice v. Rice, 372 Mass 398, 402 (1977)); Meghreblian v. Meghreblian, 13 Mass. App. Ct. 1021, 1022-23 (1982); Belsky v.Belsky, 9 Mass. App. Ct. 852 (1980); Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 14 (1979).

b. Alimony is not limited by need alone. Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903 (1992).

c. The precise need or standard of living is only one of several factors which must be considered in setting the amount of alimony to be paid to the dependent spouse. Robbins v. Robbins, 16 Mass. App. Ct. 576, 580 (1983). No specific formula need be followed to fashion a fair judgment for alimony and property assignment. Belsky v. Belsky, 9 Mass.App.Ct. 852,400 N.E.2d 878 (1980); Downing v. Downing, 12 Mass.App.Ct. 968,428 N.E.2d 336 (1981); Caldwell v. Caldwell, 17 Mass.App.Ct. 1032,461 N.E.2d 824 (1987).

5.18 Where a wife has been out of the work force for a time, had to be retrained in order to find modest employment, the Court should not put much emphasis on the wife's earning capacity. Goldman v. Goldman, 28 Mass. App. Ct. 603, 610 - 11 (1990).

5.19 A homemaker and primary-care parent with relatively few marketable job skills should not receive a lower alimony because she became employed in a relatively low paying job when the other spouse is able to provide suitable support and maintenance. DeLuca v. DeLuca, 26 Mass. App. Ct. 191 (1988).

5.20 When a spouse's earnings are insufficient to allow her to live at a standard of living comparable to that enjoyed during marriage, alimony is warranted where the other spouse is able to pay such. Belsky v. Belsky, 9 Mass. App. Ct. 852, 400 N.E. 2d 878 (1980).

5.21 When the husband has substantial financial means, resources or earning capacity, the wife is entitled to an award of alimony and property division which satisfies her needs and maintains her station of life that she enjoyed during the marriage. Aronson v. Aronson, 25 Mass. App. Ct. 164 (1987).

5.22 Among the considerations which establish the magnitude for the alimony award are the length of the marriage and the manner in which the parties, when married, lived. Grubert v. Grubert, 20 Mass. App. Ct. at 819 (1985).

5.23 Authority to award alimony is grounded in recipient's need for support and obligor's ability to pay. Gottsegen v. Gottsegen ,387 Mass. 617 (1986).

5.24 The fact that either party's employment prospects are limited should be weighed. Bush v. Bush, 402 Mass. 406, 411, 523 N.E. 2d 259, 262 (1988).

5.25 The court should take into account the ease or difficulty of finding employment in a field in which a spouse has training. Bak v. Bak, 24 Mass. App. Ct. 608, 511 N.E. 2d 625 (1987).

5.26 The contributions of a spouse in caring for the home and children which assist the other spouse to develop a greater capacity to spend time producing income can be given consideration in awarding alimony. Drapek v. Drapek, 399 Mass. 240, 246-247; Lyons v. Lyons, 403 Mass 1003 (1988).

5.27 a. A party cannot manipulate his or her income with impunity. See, Thompson v. Thompson, 12 Mass. App. Ct. 1010, 1011 (1981); Schuler v. Schuler, 382 Mass. 366, 374 (1981).

b. The court looks beyond a party's ability to manipulate income or resources in order to either avoid legal obligations or to falsely create a need. See, Barron v. Barron, 28 Mass. App. Ct. 755, 759 (1980).

c. A "party has no right to waste an asset deliberately or ignore a feasible source of income . . . ." Pagar v. Pagar, 9 Mass. App. Ct. 1, 4 (1980).

5.28 The wife is entitled to an award of alimony and property division which satisfies, but does not exceed, her needs and maintains her in a station in life that she enjoyed during marriage. Aronson v. Aronson, 25 Mass.App.Ct. 164,516 N.E.2d 184 (1987).

5.29 An award of alimony is warranted in light of the Wife's actual measurable present and future needs and the lack of income from anything but her employment. Rosenberg v. Rosenberg, 33 Mass.App.Ct. 903, 595 N.E.2d 792 (1992).

5.30 Military retirement pay may also be considered a "stream of income" for purposes of alimony. Andrews v. Andrews 27 Mass. App. Ct. 759, 759 (1989).

5.31 Alimony is governed by G. L. c. 208, ´┐Ż 34, which does not recognize expenses of caring for dependent children among the factors to be considered in determining alimony. Saia v. Saia, ___ Mass. App. Ct. ___, No. 01-P-548 (May 15, 2003).

Term of Alimony.

5.32 "Liability for alimony imposed by a decree of court ceases with the death of the husband if the decree is silent on the subject of continuation." Taylor v. Gowetz, 339 Mass. 294, 297 (1959).

5.33 A decree may require that alimony payments continue beyond the paying spouse's death, see Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 125 (1932), and the parties may agree to the same in a settlement contract, see Taylor v. Gowetz, 339 Mass. 294, 298 (1959), cited with approval in Cohan v. Feuer, adm. Et al, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).

5.34 Where decree stated that alimony payments were to be made to the wife "during the term of her life" or until she should remarry. Farrington v. Boston Safe Deposit & Trust Co., Co., 280 Mass. 121, 122 (1932), court held language unambiguously required payments to continue after the death of the paying spouse: "If his estate were not held, how else could the [wife] be paid 'during the term of her life?' " Id. at 126, cited with approval in Cohan v. Feuer, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).

5.35 A separation agreement providing that alimony payments were to continue "so long as the wife is living and remains unmarried," is an unambiguous requirement that payments continue so long as the wife was living and remained unmarried, notwithstanding the death of the husband. Taylor v. Gowetz 339 Mass. 294, 298-300 (1959); Cohan v. Feuer, adm. Et al, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).

5.36 Where parties stipulated husband would pay alimony "for the Wife's support alone; payable until both children reach the age of 23. . . . In the event of the Wife's remarriage, all alimony payments for her sole support shall cease forthwith," court, in dicta, said the Farrington and Taylor cases "strongly suggest" that this language also required alimony payments to continue after the husband's death, as the children were not yet twenty-three, and the wife had not remarried. In DuMont v. Godbey, 382 Mass. 234, 239-240 (1981).

Copyright by Gerald Nissenbaum and used by permission´┐Ż

 

 

 

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