NOTICE: All slip opinions and orders are subject to formal revision 

and are superseded by the advance sheets and bound volumes of the 

Official Reports. If you find a typographical error or other formal 

error, please notify the Reporter of Decisions, Supreme Judicial 

Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, 

MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11391

CAROLYN ZALESKI vs. STEPHEN ZALESKI.

Essex. December 3, 2013. - August 1, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & 

Lenk, JJ.1

Divorce and Separation, Alimony, Division of property.

Complaint for divorce filed in the Essex Division of the Probate 

and Family Court Department on December 20, 2010.

The case was heard by Amy Lyn Blake, J.

The Supreme Judicial Court on its own initiative transferred 

the case from the Appeals Court.

Paul P. Perocchi (Cynthia Grover Hastings with him) for the 

wife.

David E. Cherny (Catharine V. Blake with him) for the husband.

DUFFLY, J. The Alimony Reform Act of 2011, St. 2011, c. 124 

(alimony reform act or act), changed the legal framework under which 

courts may award alimony when a marriage ends in divorce. The act 

 

1 Chief Justice Ireland participated in the deliberation on this 

case prior to his retirement.
2

created four categories of alimony: "[g]eneral term alimony," 

"[r]ehabilitative alimony," "[r]eimbursement alimony," and 

"[t]ransitional alimony," and placed durational limits on the length 

of time alimony may be paid absent specific extenuating circumstances 

as found by a judge before the statutory period expires. See G. L. 

c. 208, §§ 48-52. We are asked to decide in this case of first 

impression whether a Probate and Family Court judge abused her 

discretion in determining that rehabilitative alimony, with its 

presumptive five-year payment period, was the appropriate form of 

alimony to be ordered, rather than general term alimony, which, based 

on the length of the parties' marriage, would have permitted alimony 

payments to continue for thirteen years.

In December, 2010, Carolyn Zaleski (wife) filed a complaint for 

divorce from Stephen Zaleski (husband) on the ground of an 

irretrievable breakdown of the marriage. Following trial, judgment 

entered granting a divorce nisi on the basis of irretrievable 

breakdown of the marriage, see G. L. c. 208, § 1B, awarding 

rehabilitative alimony to the wife, dividing the marital assets, and 

incorporating a stipulation of the parties regarding the custody and 

education of their two children. The wife appealed, and we 

transferred the case to this court on our own motion.

The wife challenges that portion of the judgment ordering the 

husband to pay rehabilitative alimony rather than general term 
3

alimony. She also challenges the judge's exclusion of the husband's 

bonus income from the calculation of the amount of the alimony award; 

the requirement that she maintain policies of term and whole life 

insurance as security for her obligations under the divorce judgment; 

and the division of marital assets, including the allocation of 

marital debt. We conclude that it was not an abuse of discretion 

to award rehabilitative alimony, and that the allocation of debt and 

division of property between the parties was warranted by the 

evidence. Nonetheless, we remand for further proceedings based on 

our determination that it was error not to include all of the 

husband's income in the calculation of the amount of alimony, and 

that there was no basis in the judge's findings to require the wife 

to maintain life insurance policies as security.

Background. We draw our summary of the facts from the judge's 

written findings of fact. The parties were married on October 15, 

1994, in Massachusetts. At the time of trial, the wife was 

forty-five years old and the husband was forty-eight years old.2 

They have two children, both of whom attend private schools; at the 

time of trial, their daughter was a sophomore in high school and their 

son was in the eighth grade. The parties are in agreement that their 

son should also attend a private high school. In June, 2011, the 

 

2 The trial took place over three nonconsecutive days from 

January 31, 2012, to March 6, 2012.
4

parties agreed to a temporary parenting arrangement under which the 

children resided in the marital home continuously and the parties 

moved in and out of the marital residence to accommodate each party's 

scheduled time with the children.3 The complaint for divorce was 

served on the husband in February, 2011.4

The judgment of divorce ordered the husband to pay the wife 

rehabilitative alimony in the amount of $11,667 per month for five 

years; this amount is thirty-five per cent of the husband's annual 

base salary of $400,000.5 A stipulation of the parties that provided 

for shared legal and physical custody of the children was 

 

3 Pursuant to this "nesting arrangement," as described by the 

parties, when a party was not residing in the marital home with the 

children, that party lived in a shared apartment that was maintained 

by the parties for this purpose.

4 This was a marriage of approximately sixteen years and four 

months under the definition of "[l]ength of marriage" in G. L. 

c. 208, § 48 (defining "length of marriage" as "the number of months 

from the date of legal marriage to the date of service of a complaint 

. . . for divorce").

5 Alimony was to be paid by the husband in monthly instalments 

commencing on July 1, 2012, and terminating on the earliest of July 

1, 2017, the remarriage of the wife, or the death of either party. 

For State and Federal income tax purposes, the alimony payments were 

deductible by the husband, and included as taxable income to the wife. 

See Holmes v. Holmes, 467 Mass. 653, 655 n.2 (2014). The husband 

was ordered to maintain his then-current medical, dental, and vision 

insurance for the benefit of the children until their emancipation,

and for the wife so long as she was eligible for coverage under the 

terms of his employer-sponsored insurance coverage. In the event 

of an additional cost to the husband to insure the wife, the wife 

was to be responsible for such cost. Each party was responsible for 

his or her own uninsured medical and dental expenses.
5

incorporated in the judgment; the judge ordered that neither was to 

pay child support "at this time." The judgment further provided that 

the husband shall be solely responsible for the children's private 

school tuition and expenses, and that the parties shall share equally 

the cost of the children's extracurricular and enrichment activities 

and their uninsured medical and dental costs.6 In addition, the 

judgment required both parties to maintain life insurance coverage 

as it existed at the time of trial as security for their obligations; 

allocated responsibility for certain joint indebtedness; ordered 

that each party will have responsibility for liabilities standing 

in his or her own name; and provided for a division of assets, 

including a payment from the husband to the wife in the amount of 

$27,466, "[i]n order to equalize the division."7

Discussion. 1. Statutory framework. Because there was no 

alimony jurisdiction at common law, "the power to grant alimony was 

 

6 No provision was made for payment of the children's future 

college tuition and expenses. See Passemato v. Passemato, 427 Mass. 

52, 54 (1998) ("as a general rule, support orders regarding the future 

payment of post-high school educational costs are premature and 

should not be made").

7 The judgment ordered that the wife transfer her interest in 

the marital home to the husband, and required that the husband 

refinance the existing mortgage and pay to the wife the sum of 

$161,432, an amount equal to one-half of the equity in the home. The 

judgment also ordered that certain bank accounts, investment 

accounts, and retirement accounts standing in the individual name 

of a party would remain that party's property. The husband's Merrill 

Lynch 401(k) account and Fidelity Investments individual retirement 

account were to be divided equally.
6

wholly statutory." Gottsegen v. Gottsegen, 397 Mass. 617, 621-624 

(1986).8 The courts' authority to grant alimony has been set forth 

in G. L. c. 208, § 34. As noted, the alimony reform act of 2011 added 

new provisions to c. 208, creating four categories of alimony; only 

rehabilitative and general term alimony are at issue here.9 Both 

require that a judge consider the factors set forth in G. L. c. 208, 

 

8 The courts' statutory authority to award alimony has existed 

in the Commonwealth since 1786. See St 1785, c. 69.

9 The other two forms of alimony are reimbursement and 

transitional alimony. Reimbursement alimony is defined as

"the periodic or one-time payment of support to a recipient 

spouse after a marriage of not more than [five] years to 

compensate the recipient spouse for economic or noneconomic 

contribution to the financial resources of the payor spouse, 

such as enabling the payor spouse to complete an education or 

job training."

G. L. c. 208, § 48. Reimbursement alimony terminates on the death 

of the recipient or on a date certain; once ordered, modification 

of reimbursement alimony is prohibited and income guidelines, 

applicable to all other forms of alimony, do not apply. G. L. 

c. 208, § 51 (a)-(c).

Transitional alimony is defined as:

"the periodic or one-time payment of support to a recipient 

spouse after a marriage of not more than [five] years to 

transition the recipient spouse to an adjusted lifestyle or 

location as a result of the divorce."

G. L. c. 208, § 48. Transitional alimony terminates on the death 

of the recipient or a date certain "that is not longer than [three] 

years from the date of the parties' divorce." G. L. c. 208, § 52. 

The statute prohibits modification or extension of transitional 

alimony, which, once ordered, may not be replaced with another form 

of alimony. Id.
7

§ 53, in deciding the appropriate form of alimony:

"the length of the marriage; age of the parties; health of the 

parties; income, employment and employability of both parties, 

including employability through reasonable diligence and 

additional training, if necessary; economic and non-economic 

contribution of both parties to the marriage; marital 

lifestyle; ability of each party to maintain the marital 

lifestyle; lost economic opportunity as a result of the 

marriage; and such other factors as the court considers relevant 

and material."

G. L. c. 208, § 53 (a). These factors also are to be considered in 

determining the amount of alimony to be awarded. Id. In sum, the 

primary differences between rehabilitative and general alimony 

relate to the initial term limits set forth in the act and the standard 

by which the term of alimony may be extended.

Rehabilitative alimony is defined as "the periodic payment of 

support to a recipient spouse who is expected to become economically 

self-sufficient by a predicted time, such as, without limitation, 

reemployment; completion of job training; or receipt of a sum due 

from the payor spouse under a judgment." G. L. c. 208, § 48. The 

alimony reform act provides, among other things, that 

"[r]ehabilitative alimony shall terminate upon . . . the occurrence 

of a specific event in the future," G. L. c. 208, § 50 (a),10 but also 

 

10 General Laws c. 208, § 50 (a), provides in full:

"Rehabilitative alimony shall terminate upon the remarriage of the 

recipient, the occurrence of a specific event in the future or the 

death of either spouse; provided, however, that the court may require 

the payor to provide reasonable security for payment of sums due to 
8

that the alimony term shall not exceed five years. G. L. c. 208, 

§ 50 (b). Extension of the term is authorized, however, on a showing 

of compelling circumstances that "unforeseen events prevent the 

recipient spouse from being self-supporting at the end of the term 

with due consideration to the length of the marriage, [and] the court 

finds that the recipient tried to become self-supporting." G. L. 

c. 208, § 50 (b).11 The amount of alimony may be modified during the 

term "upon material change of circumstance." G. L. c. 208, § 50 

(c). By contrast, general term alimony is defined as "the periodic 

payment of support to a recipient spouse who is economically 

dependent." G. L. c. 208, § 48. Payments continue, subject to 

durational time limits established by the act that depend upon the 

length of the marriage; here, general alimony would have entitled 

the wife to support payments of up to approximately thirteen years.12 

 

the recipient in the event of the payor's death during the alimony 

term."

11 General Laws c. 208, 50 (b), provides:

"The alimony term for rehabilitative alimony shall be not more 

than [five] years. Unless the recipient has remarried, the 

rehabilitative alimony may be extended on a complaint for 

modification upon a showing of compelling circumstances in the event 

that: (1) unforeseen events prevent the recipient spouse from being 

self-supporting at the end of the term with due consideration to the 

length of the marriage; (2) the court finds that the recipient tried 

to become self-supporting; and (3) the payor is able to pay without 

undue burden."

12 Because this was a marriage of approximately sixteen years 
9

See G. L. c. 208, § 49. General term alimony can be extended for 

"good cause" if there has been a material change in circumstances 

and the reasons are supported by "clear and convincing evidence." 

G. L. c. 208, § 49 (f) (2).

We turn to a consideration whether the judge's findings in this 

case reflect that she considered the mandatory factors when 

determining the appropriate form of alimony, and whether those 

findings support her conclusion that the wife should receive 

rehabilitative alimony. We then consider whether the findings 

support the judge's determination regarding the amount of the alimony 

award.

2. Standard of review. A judge has broad discretion when 

awarding alimony under the statute. Heins v. Ledis, 422 Mass. 477, 

480-481 (1996).13 In reviewing both the form and the amount of an 

 

and four months, see note 4, supra, the durational period of general 

term alimony is governed by G. L. c. 208, § 49 (b) (4), which provides:

"If the length of the marriage is [twenty] years or less, but 

more than [fifteen] years, general term alimony shall continue 

for not longer than [eighty] per cent of the number of months 

of the marriage."

13 The legislative history clearly shows that the broad 

discretion judges historically have had in making awards of alimony 

was not affected by the Alimony Reform Act of 2011, St. 2011, c. 124 

(alimony reform act). Indeed, the Legislature appears to have 

viewed the creation of the four categories of alimony as providing 

greater discretion to judges. A senator speaking in support of the 

bill that would become the alimony reform act stated, "Under this 

bill, people are provided with the ability to plan for their future. 
10

award of alimony, we examine a judge's findings to determine whether 

the judge considered all of the relevant factors under G. L. c. 208, 

§ 53 (a), and whether the judge relied on any irrelevant factors. 

Cf. Baccanti v. Morton, 434 Mass. 787, 790 (2001) (reviewing factors 

under G. L. c. 208, § 34, regarding division of marital property). 

"[I]t is important that the record indicate clearly that the judge 

considered all the mandatory statutory factors," Rice v. Rice, 372 

Mass. 398, 401 (1977), and that the reason for her conclusion is 

apparent in her findings. Heins v. Ledis, supra at 481. "A judgment 

will not be disturbed on appeal unless "plainly wrong and excessive." 

Id., quoting Pare v. Pare, 409 Mass. 292, 296 (1991).

3. Rehabilitative alimony. a. Mandatory factors. A judge 

has discretion in deciding whether to award rehabilitative alimony 

rather than general term alimony, so long as she has given appropriate 

 

They are provided with clear guidance. We still need discretion for 

judges." See State House News Service (Senate Sess.), July 28, 2011 

(statement by Senator Cynthia S. Cream). And in floor debates prior 

to adoption of the alimony reform act, a representative stated, "We 

create[d] several forms of alimony. . . . [The bill] gives judges 

the ability to do things they can't do now." See State House News 

Service (House Sess.), July 20, 2011 (statement by Representative 

John V. Fernandes prior to vote to engross 2011 Senate Doc. No. 665). 

See also State House News Service, Sept. 25, 2011 ("The bill lays 

out for the first time in state law specific guidelines on the levels 

and duration, amount and form of payments to former spouses. Reform 

advocates say the bill will give judges more discretion on when and 

how much alimony to award").
11

consideration to the factors identified in G. L. c. 208, § 53 (a).14 

Where the determination is made that rehabilitative alimony, with 

its shorter durational limits, is the most appropriate form, findings 

based on those factors must support the conclusion that a recipient 

spouse's economic dependence is temporary, and that, at a predictable 

date, the dependent spouse can become self-sufficient by undertaking 

reasonable efforts. See G. L. c. 208, §§ 48, 53.

Here, the judge made comprehensive findings of fact in 

conjunction with her conclusion that the appropriate form of alimony 

in this case was rehabilitative. "[W]e will not reverse findings 

made by the judge on the basis of oral testimony unless we are 

convinced they are plainly wrong." Felton v. Felton, 383 Mass. 232, 

239 (1981). See Mass. R. Dom. Rel. P. 52 (a). According to those 

findings, this was a marriage of approximately sixteen years and four 

months; at the time of trial the wife was forty-five years old and 

the husband was forty-eight years old; both parties enjoyed good 

health, as did their children. During most of the marriage, both 

parties were employed full time outside the home and contributed 

their earnings to the marital enterprise. The marriage was a "true 

partnership in every aspect," from the financial contributions that 

 

14 There is nothing in the statutory scheme to suggest that, even 

where there is evidence of conditions supporting rehabilitative 

alimony, a judge must in every case award rehabilitative and not 

general term alimony; indeed, a fine line may distinguish the two 

in some circumstances.
12

each made "to child rearing[, and] to homemaking."

The husband, who holds a bachelor of arts degree in political 

science, initially worked as a real estate appraiser, then as an 

analyst and executive in real estate investment firms. The 

husband's income, as reported on his Internal Revenue Service W-2 

forms, was $302,442 in 2004. It increased annually until it reached 

$1,024,555 in 2008, and was in excess of $900,000 in 2009 and 2010. 

In 2011, the husband's income as reported on his W-2 forms was 

$741,958.15 Since 2008, the husband's income has consisted of base 

salary in the amount of approximately $400,000, and bonuses which 

are paid annually in the year after they are earned. In 2011, the 

husband also received $286,625 in nonrecurring deferred compensation 

from a prior employer. The husband's income during the marriage was 

always greater than that of the wife. The husband was found to be 

self-supporting and fully employed commensurate with his training, 

skills, and experience.

The wife holds a bachelor of science degree in business; 

beginning early in the marriage, she was employed as a sales 

 

15 According to the judge's findings, the husband "received" 

bonuses from his present employer in the amount of $200,000 in 2008, 

$200,000 in 2009, and $345,000 in 2010, but the uncontested trial 

evidence reflects that those amounts were "earned" in the years 

indicated and received a year later and that the husband's income 

for 2011 included a bonus in the amount of $345,000, and in each of 

2010, 2009, and 2008 his income included a bonus of $200,000. This 

evidence is consistent with the judge's findings regarding the 

husband's 2011 income.
13

representative and, starting in 1990, as a pharmaceutical sales 

representative for several companies. In 2003, the wife was 

promoted to the position of sales district manager, a job from which 

she was terminated in 2007. See note 16, infra. At that time, her 

base salary was in the range of $127,000 to $130,000 annually, with 

a bonus of up to $40,000; she also had use of the company car.

The judge found that the wife, who has not been employed outside 

the home since 2008, is not presently self-supporting, but has the 

ability and the desire to work. The judge found credible the wife's 

testimony that she wants to work and plans to work outside the home, 

but found also that her job search efforts have been sporadic and 

superficial, and that she had not used her best efforts to secure 

employment.16 At the time of trial, the wife had received no 

interview or job offers as a result of her job search. The judge 

was not required to credit, or to give significant weight to, the 

wife's assertions as to those steps she had taken in her job search, 

which do not, even if credited, negate the finding that the wife had 

not used her best efforts. Cf. Flaherty v. Flaherty, 40 Mass. App. 

Ct. 289, 291 (1996). The judge did not credit the opinion of the 

 

16 The judge found that, immediately after being terminated from 

her job in 2007, the wife applied for a job with another company, 

but received no response. Soon thereafter, the wife and her 

sister-in-law started a consulting firm for early-stage 

pharmaceutical companies, but the business closed after six months 

because of what the judge described as "issues" in the 

sister-in-law's life.
14

husband's expert that the wife was highly employable as a sales 

manager or marketing manager and in those jobs could earn an annual 

salary of $160,000 to $170,000, but did find that the wife had skills 

that were transferrable across many fields beyond pharmaceutical and 

medical device sales.

Also according to the findings, "[t]he parties lived an upper 

middle class lifestyle during the marriage. They dined out, 

vacationed, joined a yacht club," and owned boats, luxury vehicles, 

and a second home, which the parties sold by agreement during the 

litigation. The children attended private schools. The husband 

held membership in a fish and game club, while the wife was a member 

of a tennis club. The judge also found that the husband and wife 

"spent beyond their means" and that, despite the husband's 

significant income and the wife's "meaningful salary," their only 

assets at the time of trial consisted of the equity in their home 

and their retirement accounts.

The judge determined that the wife was in need of rehabilitative 

alimony and that it was "anticipated that [the w]ife will return to 

the workforce on a full time basis" within a predictable period of 

time, and that until such time she "is in need of alimony." The judge 

further found that, with reasonable effort, the wife "can be employed 

within five years. At such time, the parties will need to review 

each of their respective financial circumstances and the need for 
15

continued alimony and/or child support."

These factors reflect that the judge gave consideration to all 

the factors identified in G. L. c. 208, § 53 (a). We turn now to 

the wife's claim that the findings do not support the judge's 

determination that the wife will become self-sufficient by a 

predictable date in the future.

b. Self-sufficiency by predicted date. The wife argues that 

the judge abused her discretion in awarding rehabilitative rather 

then general term alimony, because there is no specific event upon 

which termination was based. The wife relies on the language in 

G. L. c. 208, § 50 (a), which provides, in relevant part, that 

"[r]ehabilitative alimony shall terminate upon . . . the occurrence 

of a specific event in the future," to support her claim that 

rehabilitative alimony is appropriate only where a judge has 

identified a "specific event in the future," such as completion of 

job training or a medical residency, passing a licensing examination, 

or graduation from a specific educational program. We agree that 

the examples provided by the wife can support the award of 

rehabilitative alimony. However, we conclude that, in some 

circumstances, the potential of future reemployment may provide a 

basis for deciding that rehabilitative, rather than general term, 

alimony should be awarded.

We interpret a statute according to "all its words construed 
16

by the ordinary and approved usage of the language, considered in 

connection with the cause of its enactment, the mischief or 

imperfection to be remedied and the main object to be accomplished, 

to the end that the purpose of its framers may be effectuated." Board 

of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975), quoting 

Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975). 

The reference to a "specific event" is found only in G. L. c. 208, 

§ 50 (a), which establishes the durational limits for rehabilitative 

alimony. The meaning of "specific event" must be considered in light 

of other provisions in the alimony reform act that define 

rehabilitative alimony and list the factors a judge must consider 

when determining the form of the alimony award.

General Laws c. 208, § 48, defines rehabilitative alimony as 

support paid to "a recipient spouse who is expected to become 

economically self-sufficient by a predicted time, such as, without 

limitation, reemployment; completion of job training; or receipt of 

a sum due from the payor spouse under a judgment." Although the wife 

makes no direct reference to this provision, it is implicit in her 

argument that she views the term "reemployment" to mean a specific, 

identifiable job that is expected to materialize on a date certain. 

But future employment is also among the factors a judge must consider 

in determining the form of alimony to be awarded.

As set forth in G. L. c. 208, § 53 (a), a judge must consider 
17

the "employment and employability of both parties, including 

employability through reasonable diligence and additional training, 

if necessary." "Employable" has been defined as "capable of being 

employed," Webster's Ninth New Collegiate Dictionary 408 (1991), and 

"able to be employed," Webster's New Universal Unabridged Dictionary 

638 (2003). "Employability" in this context means that a party has 

the capability of being employed. As the act suggests, to become 

employable may require that a party undertake "reasonable diligence 

and additional training." Thus, although a party may not be employed 

or employable at the time of entry of the alimony award, that party 

still could have predictable prospects of future employment in a 

specific type of work or position. In such circumstances, if a 

party's employability in the near future is a realistic prospect, 

rehabilitative alimony might, with other considerations, be 

appropriate.

The act itself sheds no further light on the specific 

circumstances in which a spouse might be deemed capable of economic 

independence at some predictable date that is five years or less in 

the future. Our decisional law, however, through which the concept 

of rehabilitative alimony has developed, provides some guidance. 

The purpose of an award of rehabilitative alimony is "to protect, 

for a limited time, a spouse whose earning capacity has suffered (or 

become nonexistent) while that spouse prepares to reenter the work 
18

force." Moriarty v. Stone, 41 Mass. App. Ct. 151, 158 (1996), 

quoting Bak v. Bak, 24 Mass. App. Ct. 608, 621-622 (1987). See 

Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 867-868 (1989) (affirming 

award rehabilitative alimony to "knowledgeable, experienced 

businesswoman" who "may take some time" to reach level of earnings 

she previously had achieved while employed at husband's business). 

The award of rehabilitative alimony is appropriate when a spouse's 

anticipated self-sufficiency is based on the predictable occurrence 

of a future event, such as reemployment. Adlakha v. Adlakha, 65 

Mass. App. Ct. 860, 870 (2006).17 In accordance with these cases, 

the prospect of future employment, when based on a past history of 

commensurate employment followed by a brief hiatus, may be 

sufficiently predictable, even in the absence of an available, 

specifically identifiable job.

Rehabilitative alimony is the appropriate form of alimony if 

"a recipient spouse . . . is expected to become economically 

self-sufficient by a predicted time." G. L. c. 208, § 48. Thus, 

 

17 See Sampson v. Sampson, 62 Mass. App. Ct. 366, 371 (2004) 

(durational limit not warranted where "simply uncertain" that wife, 

sole proprietor of small business, could generate future income that 

would render alimony unnecessary); D.L. v. G.L., 61 Mass. App. Ct. 

488, 510 (2004) (durational limit not warranted where "simply 

uncertain" whether wife's future income from employment would render 

alimony unnecessary); Goldman v. Goldman, 28 Mass. App. Ct. 603, 613 

(1990) ("Where future events cannot be predicted with any measure 

of certainty, an alimony award should be based on present 

conditions").
19

the alimony reform act permits a judge to determine that 

rehabilitative alimony based on expected employment is appropriate 

where there is sufficient evidence for a judge to find, with a 

reasonable degree of certainty, that the recipient spouse can obtain 

employment through reasonable efforts, and thereby can gain economic 

self-sufficiency, in the near future. See G. L. c. 208, § 50 (b).

Here, the judge found that both parties are educated 

professionals, experienced in their respective fields. The wife had 

been employed outside the home until 2008, fewer than four years 

before the end of the marriage; at that time, her income was 

approximately $170,000. After losing her job, the wife pursued her 

interest in interior design, attending classes in 2009 and 2010, and 

started a business that failed through no fault of her own. The judge 

found also that the wife wished to work, that she was highly 

employable in the area of sales, that her skills were transferrable, 

and that she could with reasonable diligence find employment at a 

level permitting self-sufficiency. These findings support the 

judge's determination that the wife can be "expected to become 

economically self-sufficient by a predicted time." G. L. c. 208, 

§ 48. Thus, the judge did not abuse her discretion in deciding that 

the wife was not entitled to general term alimony under the specific 
20

facts of this case.18 See Heins v. Ledis, 422 Mass. 477, 480-481 

(1996).

4. Amount of alimony award. The wife also challenges the 

amount of the alimony award, arguing that it should not have been 

calculated solely from the husband's base salary, but rather should 

have encompassed his income from all sources, including any bonuses. 

The husband argues that alimony based on thirty-five per cent of his 

base income is sufficient to meet the wife's needs; that any future 

bonuses are the result of his own hard work alone; that the amount 

of his future bonuses is speculative; and that by ordering him to 

pay all of the cost of the children's private school education, the 

judge was in essence excluding from his income an amount that the 

judge had already considered for setting a child support order, as 

provided by G. L. c. 208, § 53 (c) (2).

Included among the factors that the judge was required to 

consider in determining the amount of the alimony award are "marital 

lifestyle" and "ability of each party to maintain the marital 

 

18 As to the circumstances of the wife's departure from her last 

position, the judge found that the wife's employer had determined 

after investigation that, as a sales district manager, she had 

approved an expense of a sales representative who had misappropriated 

the funds. The wife had no knowledge of this misappropriation, but 

was fired nonetheless. However, as the judge noted in her findings, 

the husband's expert was not asked what impact the involuntary 

departure from employment would have on the likelihood of the wife's 

ability to secure employment. The wife introduced no expert 

testimony on this issue.
21

lifestyle." G. L. c. 208, § 53 (a). In addition, an award of 

rehabilitative alimony is governed by the general guidelines for 

awards of alimony, other than reimbursement alimony, that the amount 

"should generally not exceed the recipient's need or [thirty] to 

[thirty-five] per cent of the difference between the parties' gross 

incomes established at the time of the order being issued." G. L. 

c. 208, § 53 (b). Subject to certain exclusions,19 "income shall be 

defined as set forth in the Massachusetts child support guidelines." 

G. L. c. 208, § 53 (b).

As the provisions of G. L. c. 208, § 53 (b), make clear, where 

an award of alimony is necessary to assure the "self-sufficiency" 

of a spouse who is determined to be dependent -- whether for the short 

or long term –- the award must reflect the parties' marital 

lifestyle. One method of measuring the amount necessary to support 

a spouse in a manner consistent with the marital lifestyle 

(particularly where, as here, the parties were found to be spending 

beyond their means) may be found in the provision that authorizes 

 

19 General Laws c. 208, § 53 (c), provides:

"When issuing an order for alimony, the court shall exclude 

from its income calculation:

"(1) capital gains income and dividend and interest income 

which derive from assets equitably divided between the parties 

under [§] 34; and

"(2) gross income which the court has already considered 

for setting a child support order."
22

an alimony award based on "need," or on a percentage of "the 

difference between the parties' gross incomes established at the time 

of the order being issued." G. L. c. 208, § 53 (b). Because "need" 

is a relative term for purposes of the act, it must be measured in 

light of mandatory considerations that include the parties' marital 

lifestyle. The judge found that the parties enjoyed "an upper middle 

class lifestyle" that included dining out, vacations, memberships 

in clubs, luxury automobiles, boats, and private schools for their 

children. Although the husband's income at times prior to the 

divorce approached or exceeded $1 million annually, the husband and 

wife "spent beyond their means" and acquired few assets. On these 

facts, the judge did not abuse her discretion in arriving at an award 

based on thirty-five per cent of the husband's income, rather than 

on a calculation of need based on historic marital spending. Cf. 

M.C. v. T.K., 463 Mass. 226, 234 n.11 (2012) (noting distinction 

between net worth and standard of living, and that household spending 

is but one mode of establishing standard of living).

The question remains whether the judge was required to include 

the husband's bonus income in this calculation. The language of the 

act is clear that all of the payor spouse's income, as defined by 

the Massachusetts Child Support Guidelines (guidelines), must be 

included in any calculation of alimony, and bonus income is 
23

specifically included in this definition.20 Caring for dependent 

children is a factor to be considered in awarding child support, but 

is not among the factors to be considered in determining alimony. 

See G. L. c. 208, § 53 (a). See also Saia v. Saia, 58 Mass. App. 

Ct. 135, 137-138 (2003).

It is certainly possible, as the husband suggests, that the 

judge factored in as child support an amount the wife might otherwise 

have been ordered to contribute to the costs of the children's private 

schools, but the findings on this point are not clear. The judge 

found that "the parties agreed that neither would pay child support 

to the other," and, on this basis, ordered that neither party was 

to pay child support "at this time." However, the record supports 

the wife's claim that there was no agreement that the husband need 

not pay child support. Rather, at trial the wife sought child 

support calculated in accordance with applicable provisions in the 

guidelines, and proposed that the amount so calculated would be 

"designated . . . as alimony," so that the husband could enjoy the 

 

20 The definition of income in the Massachusetts Child Support 

Guidelines (effective Jan. 1, 2009) (guidelines) that were in effect 

at the time of the trial in this case is very broad and includes 

bonuses among twenty-seven specifically identified sources of

income, as well as "any other form of income or compensation not 

specifically itemized above." The guidelines in effect as of August 

1, 2013, do not alter this aspect of the definition of income.
24

tax advantages that such a designation would provide.21 She 

thereafter sought to amend the judgment, seeking, among other things, 

an increase in the alimony award by a percentage of the husband's 

income in excess of his base salary.22

Because the alimony amount was not calculated on the basis of 

all of the husband's income, as required by the statute, and because 

the finding that the wife agreed that the husband need not pay child 

support was erroneous, we are unable to conclude that the amount of 

alimony was determined after due consideration of all of the 

statutory factors. We therefore remand to the Probate and Family 

Court for recalculation of the amount of alimony, and for any 

additional action that the judge may deem to be warranted.

5. Life insurance as security. The judgment ordered both 

parties to maintain the life insurance policies in effect at the time 

of trial for the benefit of the other. The act authorizes a court 

 

21 Section II.A of the guidelines provides that the guidelines 

"do not preclude the Court from deciding that any order be designated 

in whole or in part as alimony." Further, § II.A of the 2013 

guidelines provides that, consistent with the alimony reform act,

"[c]onsideration may be given by the parties to preparing 

alternative calculations of alimony and child support to 

determine the most equitable result for the child and the 

parties. Depending upon the circumstance, alimony may be 

calculated first, and in other circumstances child support will 

be calculated first. Judicial discretion is necessary and 

deviations should be considered."

22 We do not suggest that the amounts calculated by the wife are 

correct.
25

to "require reasonable security for alimony in the event of the 

payor's death during the alimony period. Security may include, but 

shall not be limited to, maintenance of life insurance." G. L. 

c. 208, § 55 (a). In addition, when support for children has been 

ordered, "the court may require sufficient security for its payment 

according to the judgment." G. L. c. 208, § 36.

The wife's insurance policies would provide a death benefit to 

the husband in the amount of $1.6 million; at the same time, the 

husband would be relieved of his obligation to pay alimony.23 See 

G. L. c. 208, § 50 (a). Although the wife is responsible for 

one-half of the cost of the children's extracurricular and enrichment 

activities and one-half of their uninsured medical and dental costs, 

nothing in the judge's findings suggests that these costs were the 

basis for her order. The findings do not otherwise support an order 

requiring security under G. L. c. 208, § 55 (a), or under G. L. 

c. 208, § 36. Assuming that some security could be found to be 

appropriate, the amount of the death benefit the wife was ordered 

to maintain exceeds any financial obligation she has under the 

judgment and, on this basis, the order requiring that the wife 

maintain life insurance policies with a death benefit of $1.6 million

for the benefit of the husband was an abuse of discretion.

 

23 The parties are in agreement that the wife's annual premiums 

for the policies she has been ordered to maintain total approximately 

$15,561.
26

6. Division of assets. The wife contends that the judge's 

assignment of marital property and allocation of responsibility for 

the parties' liabilities was plainly wrong and not supported by the 

judge's findings. She argues that, because the judge found the 

marriage to be a "true partnership" and ordered a payment to "equalize 

the division of assets," the judge intended to effect an 

approximately equal division of assets. The wife contends that the 

division was not equal, because the judge allocated to her a greater 

amount of debt than was allocated to the husband, failed to value 

certain of the husband's bank accounts, and incorrectly divided one 

asset based on its present value rather than ordering that she receive 

one-half of any future proceeds.

We review the judge's findings to determine whether she 

considered all the relevant factors under G. L. c. 208, § 34, and 

whether she relied on any irrelevant factors. See Baccanti v. 

Morton, 434 Mass. 787, 790 (2001). "We will not reverse a judgment 

with respect to property division unless it is 'plainly wrong and 

excessive.'" Id. at 793, quoting Mahoney v. Mahoney, 425 Mass. 441, 

447 (1997).

The judgment allocates debts totaling $75,519.04 to the wife 

and $26,200.71 to the husband. The findings reflect that over 

$16,000 of the wife's listed debts were to repay loans from members 

of her family, and over $57,000 consisted of credit card debt incurred 
27

by the wife alone. The judge found that the wife's credit card 

charges reflect a lifestyle beyond that which the wife could afford; 

because the debts were incurred at a time when the husband "was paying 

all of the family's living expenses" and the wife was receiving weekly 

cash payments from the husband, who had taken over management of the 

family finances, the judge found that the debts were solely those 

of the wife. The judge's findings are supported by the evidence, 

and the allocation of liabilities was not plainly wrong or excessive.

Apart from this allocation of the parties' liabilities, the 

judge awarded each party assets of roughly equal value. The judge 

was not required to follow a precise mathematical formula in dividing 

the marital estate. See Williams v. Massa, 431 Mass. 619, 631 

(2000); Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993). 

The wife claims that the judge erred in concluding that the value 

of the husband's bank accounts was "nominal." The husband testified 

at trial that the balances in these accounts had changed; he was using 

them to pay bills, and had recently made a mortgage payment on the 

former marital residence.24 The judge was entitled to, and 

implicitly did, credit this testimony when she allocated these 

accounts to the husband without an attribution of specific value.

The wife also takes issue with the manner in which the judge divided 

 

24 The husband's financial statement sets forth weekly living 

expenses of $7,250.61, including payments to the wife in the amount 

of $500.
28

the interests in a particular investment vehicle. The judge found 

that the present value of the husband's interest in that investment 

vehicle was $24,625. One-half of the value of the investment vehicle 

was assigned to the wife. The wife makes no claim that the finding 

as to the present value of this asset is erroneous.25 Rather, she 

argues that the asset should have been divided on an "if, as, and 

when basis," meaning that she should receive one-half of the value 

at some future date if, and when, investors receive a return on their 

investment.

Because the wife does not challenge the judge's finding as to 

the present value of this investment, and the parties have sufficient 

assets to permit a present payment, it was not an abuse of the judge's 

discretion to order present assignment of the wife's interest. See, 

e.g., Dewan v. Dewan, 399 Mass. 754, 757 (1987), citing Holbrook v. 

Holbrook, 103 Wis. 2d 327, 340 (Ct. App. 1981) (present assignment 

of percentage of future pension benefits is "the preferable approach" 

where sufficient assets are available at time of divorce to divide 

present value without causing undue hardship to either spouse).

Conclusion. For the foregoing reasons, the order in the 

 

25 The husband listed this as the value on his financial 

statement submitted to the court in conjunction with the divorce 

filing. The value reflects the cost of two subscription units of 

the investment vehicle made available through a private offering to 

employees of a certain investment firm, less an outstanding payment 

of $375.
29

judgment of divorce nisi requiring the plaintiff to maintain her 

current policies of life insurance for the benefit of the defendant 

is vacated. The matter is remanded to the Probate and Family Court 

for recalculation of the amount of the monthly alimony payment to 

be made to the plaintiff in light of this opinion. In all other 

respects, the judgment is affirmed.

So ordered.