Legal Question in Family Law in Massachusetts

Alimony Modification

Alimony may be paid in the form of an assignment of part or all of the assets of one spouse or the other, or in periodic payments. The court has the discretion to determine whether an income source is a capital asset to be divided or become a source of ongoing alimony (periodic payments). From the facts in the case of your fiance, it sounds like the court had ordered periodic payments. If that is the case the award (e.g. monthly payments) is always modifiable by the court while both parties are alive. To modify, there must be a material change in the circumstances of the parties. The death of either party terminates the right to alimony and remarriage does not automatically terminate alimony unless such a termination was set forth in the court order or agreement by the parties. However, remarriage is evidence of a material change in circumstances.

Lastly, a pension plan is subject to "equitable distribution" at the time of divorce. Therefore, your fiance must look to the divorce order or agreement to determine the "availibilty" of the pension plan funds.....

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Substantial change in circumstances needed for modification

A slight salary change is probably not enough to change the alimony. The change must be substantial.Pensions are property, and the equitable ivision determined at the time of divorce is a ONE-TIME thing . . . unlike alimony (if one of the spouses falls ill or becomes unemployed), or child support, which is always re-examined as the child(ren) get older and their needs change.older. A first family gets preference over a second family. You did not say whether ex-hubby has second family.Rationale is that the second spouse knew about the first family and the legal obligations that the "paying" spouse has. Your fiancee should seek the counsel and advice of an attorney if she feels compelled to know everything ahead of time . . . but she can always wait until she receives a complaint for modification. Good luck!

Pending second marriage, reduced wages of payor, alimony

You have several different things happening that are of legal significance:

1. your fiance will be getting married (to you) soon, which will trigger a "change in circumstance" at the least, and may cause your fiance to no longer receive alimony. Look to the settlement agreement to see what it said. It may have said that alimony stops on the remarriage of the recipient. Look to see whether the agreement "survives" or is "merged". A survived agreement is binding and less likely to be modified later on. You need an attorney to study the agreement to determine how modifiable it is (eg can alimony be changed).

2. ex husband (payor of alimony) has less income. Depends on how much less. If half as much, and he has few assets, then it depends on the size of the alimony payments. The court would look at the agreement made at divorce, the need of the recipient spouse, and the ability to pay of the paying spouse. If there was a substantial change in need or ability to pay, the court will review. From a practical matter, the person who wants the change must bring a modification action (which usually means they hire an attorney), and probably has to argue the case before a judge -- this can be expensive, so will not be brought unless the savings offset the change in payments. If you are the reciever of alimony, the court will not act on its own to reduce the payments, the other spouse has to bring an action, and you have an opportunity to appear and have your side heard.

3. pension benefits were divided at the time of the divorce, probably. Look to the agreement that both parties signed, or the order from the court. If you see "QDRO" documents, these are legal instruments that divide a pension plan. You can only divide the assets one time. The division cannot be later modified, it is permanent. If the payor is now collecting pension payments, then the pension payments are income to the payor spouse, and may be considered that way. Social Security benefits are not divisble, and the recipient spouse probably receives a percentage of the spouse's SS benefits, depending on the paying spouse's SS eligibility. This can be tricky, and depends on a lot of factors that were not in your original inquiry.

This message is provided to assist you in structuring your thoughts when you speak with an attorney about your situation. I am not your attorney, and you are not my client, so this is not legal advice. Legal advice can only be given after a careful interview of the client by the attorney, and I have not had the opportunity to understand the significant issues that I must understand to render legal advice. You should contact an attorney in your state to discuss your situation. That attorney can give you the advice that your situation deserves, after carefully considering the issues that are legally significant in your situation.

Modification of Alimony

If alimony was ordered as a result of a separation agreement, the agreement must beread to determine the circumstances, if any, that allow reduction of alimony. Theagreement may not permit modification. If the alimony is ordered by a court without aseparation agreement, then a person make seek modification based upon asubstantial change in circumstances. Pension benefits are not attachable unless thepayments are currently being paid to the recipient.