Alimony durational limits and mediation/collaborative divorce

By now, most people have heard about the new Massachusetts’ alimony laws and how the length of time for alimony payments—at least for general term alimony–is factored based on the length of the marriage. On paper, you would think this might simplify things if you plan on mediating your divorce or going through a collaborative divorce process. The answer to that is: it can. But it can go the other way as well.

One potential difficulty exists with the filing date of the divorce complaint.  According to the new alimony law, your marriage is deemed to have ended when the Complaint is filed.  In a mediation or collaborative divorce, however, you typically file a divorce complaint at the end of the process,  once you and your spouse have agreed on the terms of the divorce and that’s where problems can occur.

Depending on several variables, the process to end your marriage through mediation or collaborative divorce can last months and, in rare circumstances, years. The potential does exist that during that divorce process, the period for which alimony must be paid could increase.

To give you an example of how it works, the new law provides that in marriages of less than twenty years, alimony will terminate as follows:

  • Marriages of 5 years or less, alimony shall continue for no longer than one half (50%) of the number of months of the marriage (so if the marriage is 36 months, the maximum duration of alimony would be 18 months.)I
  • Between 5 and 10 years, alimony continues for no longer than 60% of the months of marriage;
  • Between 10 and 15 years, alimony continues for no longer than 70% of the months of the marriage;
  • Between 15 and 20 years, alimony continues for no longer than 80% of the months of the marriage.
  • For marriages of 20 years or longer there is no automatic cut off.

Consequently, if your marriage is almost five, 10, 15 or 20 years long, you may find yourself in a longer durational bracket because of your failure to file a Complaint for Divorce at the start of the process.

Collaborative attorneys are well aware of this issue and may agree to file a Complaint early on in the process, instead of waiting until the end of the negotiations.  Likewise, if you are consulting with an attorney as part of your mediation, your attorney can explain this issue to you and you can raise it as part of the mediation.  Parties who do not have an attorney helping them in their mediation, may miss this issue altogether.  This is just one reason why I always recommend both spouses retain counsel in a mediation.

Does this mean you should reconsider ending your marriage through mediation or the collaborative divorce?  Not at all.  It does mean that if you are going to be discussing alimony that you consider filing a Divorce Complaint at the start of the process. Once the Complaint is filed,  the mediation or collaborative divorce can continue at its normal pace.