Alimony modifications



In general, to modify support orders—especially orders for the support of a spouse, as opposed to child support orders—there must be a change in circumstances that affects either one former spouse’s need for support or the other former spouse’s ability to pay. Gottsegen v. Gottsegen , 397 Mass. 617 (1986) (court could not provide for termination of alimony untied to recipient’s economic circumstance or need for alimony or the supporting spouse’s ability to pay); Flaherty v. Flaherty, 40 Mass. App. Ct. 289 (1996) (discussion of attribution of income and requirement for findings in a child support modification action);Cournoyer v. Cournoyer, 40 Mass. App. Ct. 302(1996);Bassette v. Bartolucci, 38 Mass. App. Ct. 732 (1995).



The change must be “material” and must affect either the need for support or the ability to pay. Kelley v. Kelley, 64 Mass. App. Ct. 733 (2005) (modification to reduce alimony should be denied where wife’s decrease in expenses is offset by husband’s improved circumstances);Greenberg v. Greenberg , 68 Mass. App. Ct. 344 (2007) (retirement of payor spouse not a sufficient basis to reducealimony if no change in the actual standard of living).




Practice Note


Unlike alimony, at least in the case of children of divorced parents, a child support order may be modified by a judge without the occurrence of a change in circumstances if the current order differs from the






When looking at the change in circumstances, the court considers the same factors it used to set the original order.- Monroe L. Inker, Charles P. Kindregan, Jr. and Patricia A. Kindregan, Family Law and Practice,Massachusetts Practice Series, Chapter 70. (West 3d ed. 2003 & Supp. 2008). For example, the court will use the alimony factors in actions to modify the alimony provision of a divorce judgment and the factors set out in the Child Support Guidelines (many of the factors are not written on the Child Support Guidelines Worksheet) to modify child support orders when the presumption that the Guidelines apply has not been rebutted.  In a modification action, however, the court does not need to consider all of the factors used to set an original in order. The court must weigh all relevant circumstances. Schuler v. Schuler, 382 Mass. 366 (1981).



“Relevant circumstances” commonly include:


• the needs of each party;


• the needs of the parties’ children;


• the assets of each party;


• the debt of each party;


• the income of each party;


• the capability of each party to earn income;


• whether a party has changed his or her lifestyle or “standard of living”;


• whether a change is temporary, short-term or long-term, or permanent;


• whether a change was voluntary or involuntary; and


• how honestly the parties tried to fulfill their obligations under an order (i.e., their “good faith”).



The court will not decrease a support order when a party voluntarily reduces his or her income or assets without justification. In addition to considering a party’s actual income, the court may consider a party’s assets and capability to earn income. Crowe v. Fong, 45 Mass. App. Ct. 673 (1998) (in action to increase child support, trial court properly took into account support payer’s present and future earning capacity, including demonstrated ability to earn income and acquire assets). The court can “attribute” income to a person who voluntarily reduces his or her income or assets; the court, in effect, will credit that person with income or assets that he or she may not actually have but could have with reasonable effort. Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735–36 (1995) (a voluntary retirement from high-income employment in order to become a missionary or a voluntary career change is not a basis for modification). The court might not attribute income when the change in ability to pay was not voluntary, the party is making reasonable efforts to get additional income, and he or she does not have additional assets that could be used to pay. Flaherty v. Flaherty, 40 Mass. App. Ct. 289 (1996).



Also, the court will not attribute income to the parent who has the parties’ child or children who are under the age of six living in the home. This exception does not apply to people who stay at home to raise a child of a later, different relationship, even if the child of the later relationship is under age six. Canning v. Juskalia, 33 Mass. App. Ct. 202 (1992) (court had discretion to attribute income to mother staying home to care for child of a later relationship, even though the child was under age six). However, the court can consider obligations a person paying support has assumed to his or her other family since the prior order or judgment. - Child Support Guidelines, Section II. I., “Prior Orders for Support,” and II. J., “Expenses of Subsequent Families.” 




Common Changes of Circumstances Relating to Modification of Alimony



The chief consideration in changing an award of alimony is whether the financial circumstances of one of the parties has substantially changed. Pagar v. Pagar , 9 Mass. App. Ct. 1, 2 (1980). The change in circumstances must be “material,” taking into account the needs of the person receiving the alimony and the ability to pay of the person






One common example of a change in circumstances affecting someone’s need for support is the remarriage of aperson receiving alimony. Remarriage will end a person’s right to receive alimony unless the original divorce decree or agreement provides otherwise or the parties legally amend their agreement to provide otherwise. Cohan v. Feuer, 442 Mass. 151 (2004). Remarriage of the person paying alimony generally will not justify a reduction of an alimony award, because he or she knew of the obligation and voluntarily married anyway. However, if the obligor’s expenses related to remarriage have significantly increased, that could constitute a reason to reduce alimony. For example, a judge could consider the expenses a person paying alimony has when a child from a later marriage has special needs that require substantial sums of money for extensive medical treatment. Winternitz v. Winternitz, 19 Mass. App. Ct. 228, 233 n.8 (1985). The court may refuse a request to make a first-time award of alimony or to increase alimony when theperson from whom the alimony is sought has remarried before the request.





The requirement to pay alimony will usually end with the death of the person required to pay. Cohan v. Feuer, 442 Mass. 151 (2004). However, a person who is owed money from nonpayment of alimony may be able to collect it from the estate of the person who was supposed to pay. Barron v. Puzo, 415 Mass. 54 (1993). The parties can agreethat the alimony will continue after a remarriage or death of either party, and can put such a provision in a separation agreement. Cohan v. Feuer, 442 Mass. 151 (2004); Barron v. Puzo, 415 Mass. at 54.





Cohabitation alone does not amount to a material change of circumstances; a party must show that the cohabitation created a material change in the party’s economic circumstances. Gottsegen v. Gottsegen, 397 Mass. 617 (1986) (a former wife’s cohabitation is not by itself a reason to terminate her alimony award).





A significant inheritance can be a material change in circumstance. Harris v. Harris, 23 Mass. App. Ct. 931 (1986) (inheritance of $125,000 in cash and of jewelry valued at $40,000 by person receiving alimony established a material and substantial change in circumstances, and justified reduction and eventual elimination of alimony, even when the recipient did not invest the inheritance to generate income).



Modification of Alimony Arrearage


Without a separation agreement that provides otherwise, the judge may modify alimony arrearage in a contemptproceeding or a modification action if the person attempting to get the reduction proves that a material change of circumstance has occurred since the earlier alimony order.Kennedy v. Kennedy , 17 Mass. App. Ct. 308 (1983). See






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