What are the laws about paying alimony when person is retired and receiving social security?

Full Question:

What are the laws about paying alimony when person is retired and receiving social security? Only taking out monthly amount from 401's and ex spouse signed off on pension at time of divorce.
02/13/2009   |   Category: Divorce ยป Spousal Supp...   |   State: Massachusetts   |   #15239

Answer:

Alimony or spousal support is an order of a court for the support of one spouse by the other spouse. Spousal support is separate from, and in addition to, the division of marital property. State law, which varies by state, governs the award of alimony to a spouse. On application of either party for spousal support, the court may decree an increase or decrease only upon a showing of a substantial and material change of circumstances. Alimony may terminate upon the death of either spouse, the marriage of the spouse receiving alimony or, if the court finds that alimony should terminate in order to avoid a harsh and inequitable result. In awarding alimony and modifying an order for the same, the court may consider factors such as the length of the marriage; the conduct pf the parties during the marriage; the age, health, station, occupation, amount and sources of income; the vocational skills and employability of the parties; the estate, liabilities and needs of each party; the opportunity of each party for future acquisition of capital assets and income; the present and future needs of any dependent children of the marriage; the contribution of each party to the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. Judges have discretion when ordering the duration of alimony. Alimony might continue beyond the emancipation of the last child, unlike child support, which is typically determined according to a set of written guidelines and ends upon a child's emancipation. A court may award permanent or temporary alimony or both to either party. The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action. In addition, the court shall also determine whether the spouse ordered to pay alimony has health insurance or whether health insurance is reasonably available. If so, the court will order that health insurance be extended to cover the other spouse or purchased for the other spouse when reasonably available.

The following are Massachusetts statutes:

G.L.c. 208, § 17. Pendency of action; allowance; alimony.

Section 17. The court may require either party to pay into court for
the use of the other party during the pendency of the action an amount to
enable him to maintain or defend the action, and to pay to him alimony
during the pendency of the action. When the court makes an order for
alimony on behalf of a party, and such party is not a member of a private
group health insurance plan, the court shall include in such order for
alimony a provision relating to health insurance, which provision shall
be in accordance with section thirty-four.

G.L.c. 208, § 20. Continuance of action; temporary separation.

Section 20. The court may, without entering a judgment of divorce,
order the action continued upon the docket from time to time, and during
such continuance may make orders relative to a temporary separation of
the parties, the separate maintenance of either spouse and the custody
and support of minor children. Such orders may be changed or annulled as
the court may determine, and shall, while they are in force, supersede
any order of the probate court under section thirty-two of chapter two
hundred and nine and may suspend the right of said court to act under
said section. When the court makes an order for maintenance of a spouse
or support of a minor child, and such spouse or child is not a member of
a private group health insurance plan, the court shall include in such
order a provision relating to health insurance, which provision shall be
in accordance with section thirty-four.

G.L.c. 208, § 34. Alimony or assignment of estate; determination of amount;
health insurance.

Section 34. Upon divorce or upon a complaint in an action brought at
any time after a divorce, whether such a divorce has been adjudged in
this commonwealth or another jurisdiction, the court of the
commonwealth, provided there is personal jurisdiction over both parties,
may make a judgment for either of the parties to pay alimony to the
other. In addition to or in lieu of a judgment to pay alimony, the court
may assign to either husband or wife all or any part of the estate of the
other, including but not limited to, all vested and nonvested benefits,
rights and funds accrued during the marriage and which shall include, but
not be limited to, retirement benefits, military retirement benefits if
qualified under and to the extent provided by federal law, pension,
profit-sharing, annuity, deferred compensation and insurance. In
determining the amount of alimony, if any, to be paid, or in fixing the
nature and value of the property, if any, to be so assigned, the court,
after hearing the witnesses, if any, of each party, shall consider the
length of the marriage, the conduct of the parties during the marriage,
the age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of each
of the parties and the opportunity of each for future acquisition of
capital assets and income. In fixing the nature and value of the property
to be so assigned, the court shall also consider the present and future
needs of the dependent children of the marriage. The court may also
consider the contribution of each of the parties in the acquisition,
preservation or appreciation in value of their respective estates and the
contribution of each of the parties as a homemaker to the family unit.
When the court makes an order for alimony on behalf of a spouse, said
court shall determine whether the obligor under such order has health
insurance or other health coverage available to him through an employer
or organization or has health insurance or other health coverage
available to him at reasonable cost that may be extended to cover the
spouse for whom support is ordered. When said court has determined that
the obligor has such insurance or coverage available to him, said court
shall include in the support order a requirement that the obligor do one
of the following: exercise the option of additional coverage in favor of
the spouse, obtain coverage for the spouse, or reimburse the spouse for
the cost of health insurance. In no event shall the order for alimony be
reduced as a result of the obligor's cost for health insurance coverage
for the spouse.

G.L.c. 208, § 34A. Alimony judgment ordering conveyance; effect.

Section 34A. Whenever a judgment for alimony shall be made in a
proceeding for divorce directing that a deed, conveyance or release of any
real estate or interest therein shall be made such judgment shall create
an equitable right to its enforcement, subject to the provisions for
recording of notice in section fifteen of chapter one hundred and
eighty-four, in the party entitled thereto by the judgment, and if the
judgment has not been complied with at the time the judgment of divorce
becomes absolute, and is thereafter recorded in the manner provided by
section forty-four of chapter one hundred and eighty-three, then the
judgment itself shall operate to vest title to the real estate or
interest therein in the party entitled thereto by the judgment as fully
and completely as if such deed, conveyance or release had been duly
executed by the party directed to make it.

No assignment, transfer or conveyance, from one spouse to the other,
under this section or under a separation agreement, of real estate which
is encumbered by a mortgage shall be deemed a transfer or divestment of
said mortgage under the provisions of mortgage covenants, which provide
that the debt secured by said mortgage becomes due and payable on demand
upon transfer or divestment to anyone other than the mortgagor.

G.L.c. 208, § 35. Alimony; enforcement.

Section 35. The court may enforce judgments, including foreign
decrees, for allowance, alimony or allowance in the nature of alimony,
in the same manner as it may enforce judgments in equity.

G.L.c. 208, § 36. Security for payment of alimony or support; enforcement
of judgments or orders.

Section 36. When alimony or support is adjudged for the spouse or
children, the court may require sufficient security for its payment
according to the judgment. Each judgment or order of support which is
issued, reviewed or modified pursuant to this chapter shall conform to
and shall be enforced in accordance with the provisions of section twelve
of chapter one hundred and nineteen A.

G.L.c. 208, § 36A. Continuing jurisdiction to enforce alimony, support
and maintenance or child support; order for trustee process.

Section 36A.

(1) In any case in which an obligor is under court
order to pay alimony or support and maintenance or child support in
an action or judgment for divorce under this chapter or in an action or
judgment for separate support under chapter two hundred and nine,
the court which entered the support order shall retain continuing
jurisdiction over the parties to the order and may enter an order of
trustee process against the disposable earnings of the obligor, both
those presently due and owing and those which will be due and owing
at a future time, up to an amount permitted by federal law. Before
the court may enter such an order, it shall find that all other domestic
remedies available to collect support have been exhausted or would be
ineffective.

For the purpose of this section, the words "disposable earnings" shall
mean that part of the compensation paid or payable to the obligor for
personal services, whether denominated as wages, salary, commission,
bonus, or otherwise, including periodic payments pursuant to a pension or
retirement program, which remains after the deduction of any amounts
required by law to be withheld; and the word "trustee" shall mean the
person, firm, association, or corporation by whom the obligor is
employed.

(2) A complaint seeking an order of trustee process may be sought by
the spouse or parent, custodian or guardian of the child, a family
service officer or probation officer, or in the case of persons receiving
public assistance, the department of public welfare. The complaint will be
filed in the court which issued the judgment of divorce or separate
support or in which the action for divorce or separate support is pending
under the docket number of the action for divorce or separate support and
shall state that the obligor is under a court order to provide support,
the amount of the order, the amount of the arrearage, if any; that all
other domestic remedies available to collect support have been exhausted
or would be ineffective; the name and address of the employer of the
obligor; the obligor's monthly disposable earnings from said employer,
which may be based upon information and belief, and the amount sought to
be trusteed. The complaint shall be served on both the obligor and his
employer in accordance with applicable law and rules for service of
process; provided, however, that where the court had personal jurisdiction
over the obligor in the original action for divorce or separate support,
personal service on such obligor shall not be required as long as the
obligor receives adequate and reasonable notice of the proceeding.

(3) After a hearing on the merits, the court may enter an order of
trustee process against the obligor's disposable earnings. The order
shall set forth sufficient findings of fact to support the action by the
court and the amount to be trusteed for each pay period. The order shall
be subject to review by the court for modification and dissolution upon
the filing of a motion, with a sworn affidavit supporting same.

(4) Upon receipt of an order for trustee process, the trustee shall
transmit each pay period without delay to the clerk of the court, or to
the family service office of the court or any other party designated by
the court, the amount ordered by the court to be trusteed for each
such period. These funds shall be disbursed to the party designated
by the court. If the person entitled to receive said support is a
recipient of public assistance, such funds shall be disbursed directly to
the department of public welfare up to the amount of aid being paid
to the recipient by the department.

(5) No employer may discharge, suspend, or discipline an employee
by reason of his having been trusteed pursuant to this section. Any
employer who violates this clause shall be liable to the employee for
compensation and employment benefits lost, if any, during the time of
the unlawful discharge, suspension, or discipline.

(6) The commonwealth and any of its political sub-divisions shall
be subject to trustee process under this section as if they were private
parties.

(7) Any remedy provided pursuant to this section shall be in addition
to, and not in lieu of, any other remedy available for the enforcement of
support obligations.

G.L.c. 208, § 37. Alimony; revision of judgment.

Section 37. After a judgment for alimony or an annual allowance
for the spouse or children, the court may, from time to time, upon the
action for modification of either party, revise and alter its judgment
relative to the amount of such alimony or annual allowance and the
payment thereof, and may make any judgment relative thereto which
it might have made in the original action.

The court, provided there is personal jurisdiction over both parties,
may modify and alter a foreign judgment, decree, or order of divorce
or separate support where the foreign court did not have personal
jurisdiction over both parties upon the entry of such judgment, decree
or order.

The court, provided there is personal jurisdiction over both parties to
a foreign judgment, decree, or order of divorce for support, where such
foreign court had personal jurisdiction over both parties, may modify and
alter such foreign judgment, decree, or order only to the extent it is
modifiable or alterable under the laws of such foreign jurisdiction;
provided, however, that if both parties are domiciliaries of the
commonwealth, then the court may modify and alter the foreign judgment in
the same manner as it could have had the judgment, order, or decree been
issued by the court; and provided further, that the court may not modify
or alter the judgment, order or decree of a foreign jurisdiction which
had personal jurisdiction over both parties concerning the division or
assignment of marital assets or property.

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