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revision and are superseded by the advance sheets and bound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-12240

DEREK L. YOUNG vs. JOY G. YOUNG

(and a consolidated case1).

Norfolk. March 6, 2017. - September 25, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.2

Divorce and Separation, Alimony, Findings.

Complaints for divorce filed in the Norfolk Division of the 

Probate and Family Court Department on January 29 and February 

5, 2013.

After consolidation, the case was heard by Jennifer M.R. 

Ulwick, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

David H. Lee (Jessica M. Dubin also present) for the 

husband.

David E. Cherny (Erin M. Shapiro also present) for the 

wife.

W. Sanford Durland, III, & Glenn M. Schley, amici curiae, 

submitted a brief.

 

1 Joy G. Young vs. Derek L. Young.

2 Justice Hines participated in the deliberation on this 

case prior to her retirement.
2

Jennifer C. Roman & Johnathan P. Diggin, for Women's Bar 

Association, amicus curiae, submitted a brief.

GANTS, C.J. The Probate and Family Court judge in this 

divorce action made two rulings that are the primary subjects of 

this appeal. First, the judge found that, where the husband's 

income from his employment was "on an upward trajectory," the 

wife may only maintain a standard of living "consistent with the 

marital lifestyle (which was one where the parties['] needs 

expanded in accordance with the increasingly available income)" 

by an award of general term alimony that increases commensurate 

with the increase in the husband's income. Second, the judge 

found that, because of "the complex nature of [the husband's] 

compensation over and above his base salary and bonus," and 

because of "the constantly shifting nature of [the husband's] 

compensation," "it is reasonable and fair in the circumstances" 

to award alimony to the wife in the amount of thirty-three per 

cent of the husband's gross income, rather than a fixed amount.

We conclude that, where the supporting spouse (here, the 

husband) has the ability to pay, the need for support of the 

recipient spouse (here, the wife) under general term alimony is 

the amount required to enable her to maintain the standard of 

living she had at the time of the separation leading to the 

divorce, not the amount required to enable her to maintain the 

standard of living she would have had in the future if the
3

couple had not divorced. We also conclude that, although there 

might be circumstances where it is reasonable and fair to award 

a percentage of the supporting spouse's income as general term 

alimony to the recipient spouse, those circumstances are not 

present in this case. We therefore remand the case to the 

Probate and Family Court with instructions to reevaluate the

alimony judgment in light of our opinion and enter a new 

judgment accordingly.3

Background. Derek L. Young (husband) and Joy G. Young 

(wife) had been married for nearly twenty-four years when the 

husband filed a complaint for divorce in the Probate and Family 

Court in January, 2013. The wife filed a complaint for divorce 

one week later, and the two actions were effectively treated as 

one. In October, 2013, the judge ordered the husband to pay 

temporary alimony in the amount of $48,950 per month. After a 

four-day trial, the judge made voluminous findings of fact and 

issued an amended judgment of divorce on September 25, 2015. We 

summarize only those findings relevant to the issues on appeal.

The judge found that the husband works as a "high level 

executive" with a financial institution who receives substantial 

compensation in various forms. Apart from his annual base 

salary (which was $350,000 in 2014) and an annual bonus (which 

 

3 We acknowledge the amicus briefs submitted by the Women's 

Bar Association, and by attorneys W. Sanford Durland, III, and 

Glenn M. Schley.
4

was $1.6 million in 2013), he receives compensation through at 

least seven different compensation programs or share plans, 

including several types of stock options, a special bonus 

program, investor entity units, and opportunities to purchase 

shares of common stock at a discount. The compensation programs 

vary in how consistently they produce income and in the amount 

of income they produce. Some investment assets that are earned 

are liquid and immediately transferrable, and some may not be 

transferred or converted to cash until sometime in the future. 

The amount earned, above and beyond the base salary and annual 

bonus, through these compensation programs is both considerable 

and variable. The husband's gross income from 2008 through 2012 

was approximately $1.53 million in 2008, $2.07 million in 2009, 

$3.81 million in 2010, $7.96 million in 2011, and $7.76 million 

in 2012.

The judge found that the parties agreed early in their 

marriage that the husband would work and the wife would "be a 

stay-at-home parent and not be employed outside the home." As a 

result, the wife has not worked outside the home since 1992, and 

the judge found that she "has no ability to be employed at a 

level to allow her to maintain a lifestyle post divorce similar 

to that maintained during the marriage without alimony."

The husband's substantial compensation package allowed the 

parties to enjoy "an affluent, upper-class station in life and 
5

marital lifestyle during their marriage." The couple's expenses 

increased as the husband's income increased during the course of 

his employment. Before the separation, the parties were living

in a lavish, eight-bedroom home, driving luxury vehicles, and

regularly dining out three to four times a week at expensive 

restaurants. They had purchased a summer home in Nantucket, 

were spending "tens of thousands of dollars on articles of 

clothing and handbags" from designer stores, and regularly 

enjoyed expensive vacations.

The judge found that, after the parties separated, the wife 

maintained a level of spending similar to what she spent during 

the marriage. According to the wife's October 8, 2013,

financial statement, the wife's weekly expenses totaled $8,728 

(or $453,856 per year) after subtracting expenses related to the 

children's college tuition and room and board. However, 

according to the wife's September 10, 2014, financial statement, 

the wife's weekly expenses had increased to $12,575.77 (or 

$653,940 per year). The judge found that "many of [the] wife's 

expenses" were supported by the evidence at trial, but she 

lacked "personal knowledge regarding her own expenses," certain

expenses were "overstated," and her "representations of expenses 

on her financial statements [were] not an accurate reflection of 

her needs." The judge did not make a finding regarding her 

actual weekly or annual expenses or needs.
6

The wife sought alimony in the amount of $713,781.49 per 

year. After considering the husband's ability to pay, the 

wife's needs, and the other factors required by G. L. c. 208, 

§ 34, the judge did not set a fixed amount of general term 

alimony but instead ordered the husband to pay the wife each 

year alimony in the amount of thirty-three per cent of his 

annual gross income.4 The judge included within the husband's 

gross income the husband's base salary and annual bonus, as well 

as several of the additional components of the husband's 

compensation package, including but not limited to the husband's 

deferred bonus, special bonus, special retention bonus, special 

dividends, and distributions for payment of taxes.

5 The judge 

reasoned, "Because the parties lived with the expectation and 

reality that [the husband's] bonus level is on an upward 

trajectory, and given the fact that their needs historically 

followed this upward trajectory, and due to the complex nature 

 

4 The judge determined that the husband's alimony obligation 

would extend until September 18, 2031, the death of one of the 

parties, or the wife's remarriage, whichever came first.

5 Under G. L. c. 208, § 53 (b), for purposes of determining 

the amount of alimony, with exceptions not relevant here, 

"income shall be defined as set forth in the Massachusetts child 

support guidelines." See Zaleski v. Zaleski, 469 Mass. 230, 

242-244 (2014). Under the guidelines, "income is defined as 

gross income from whatever source," and specifically includes 

"salaries," "bonuses," "interest and dividends," and 

"perquisites of in-kind compensation to the extent that they 

represent a regular source of income." Child Support Guidelines 

§ I(A) (Aug. 1, 2013). See Snow v. Snow, 476 Mass. 425, 431 

(2017).
7

of [the husband's] compensation over and above his base salary 

and bonus, it is reasonable and fair in the circumstances to use 

a percentage for the future alimony particularly given the 

constantly shifting nature of [the husband's] compensation." 

The judge appointed a special master to oversee compliance with 

the judgment and to assist in resolving disputes that might

arise.

The husband appealed, and we transferred the case to this 

court on our own motion.

Discussion. 1. Determination of need for support. 

"Alimony" is defined in the Alimony Reform Act of 2011,

St. 2011, c. 124 (act), as "the payment of support from a 

spouse, who has the ability to pay, to a spouse in need of 

support for a reasonable length of time, under a court order." 

G. L. c. 208, § 48. Neither "ability to pay" nor "need of 

support" is a defined term under the act. Rather, the act 

identifies a number of factors that a judge must consider in 

"determining the appropriate form of alimony and in setting the 

amount and duration of support," and gives the judge the 

discretion to consider other factors that the judge deems 

"relevant and material." G. L. c. 208, § 53 (a).6 "A judge has 

 

6 General Laws c. 208, § 53 (a), provides: "In determining 

the appropriate form of alimony and in setting the amount and 

duration of support, a court shall consider: the length of the 

marriage; age of the parties; health of the parties; income, 
8

broad discretion when awarding alimony under the statute," 

Zaleski v. Zaleski, 469 Mass. 230, 235 (2014), citing Heins v. 

Ledis, 422 Mass. 477, 480-481 (1996), but the act establishes 

presumptive parameters: the amount of general term alimony 

"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).

A judge must consider and weigh all the relevant factors, 

but where the supporting spouse has the ability to pay, "the 

recipient spouse's need for support is generally the amount 

needed to allow that spouse to maintain the lifestyle he or she 

enjoyed prior to termination of the marriage." Pierce v. 

Pierce, 455 Mass. 286, 296 (2009). See Heins, 422 Mass. at 480, 

quoting Inker, Alimony and Assignment of Property: The New 

Statutory Scheme in Massachusetts, 10 Suffolk U. L. Rev. 1, 8 

(1975) (noting "the inherent limitation of alimony that it be 

only for 'the amount necessary to support the wife in the manner 

of living to which she has been accustomed'"); Grubert v. 

Grubert, 20 Mass. App. Ct. 811, 819 (1985) ("The standard of 

 

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."
9

need is measured by the 'station' of the parties -- by what is 

required to maintain a standard of living comparable to the one 

enjoyed during the marriage"). Two of the statutory factors in 

§ 53 (a) are "marital lifestyle" and the "ability of each party 

to maintain the marital lifestyle." Both focus on the spouses' 

lifestyle during the marriage. See Zaleski, 469 Mass. at 243 

("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"). See also 1 Lindey and 

Parley on Separation Agreements and Antenuptial Contracts 

§ 22.63[2][e] (2d ed. 2017) ("standard of living experienced 

during the several years before the divorce" relevant for 

alimony determination is preseparation standard of living); L.D. 

Wardle & L.C. Nolan, Fundamental Principles of Family Law 715 

(2d ed. 2006) ("the historic baseline for measuring 'need' has 

been the standard of living the parties enjoyed during the 

marriage"). Thus, both the act and the case law interpret

"need" in terms of the marital lifestyle the parties enjoyed 

during the marriage, as established by the judge at the time of 

the order being issued, in this case, the judgment of divorce.7

 

7 The other factors the judge must consider in making an 

alimony determination under G. L. c. 208, § 53 (a), may also 

bear on the analysis of need, such as the health and age of the 

parties. See, e.g., 1 Lindey and Parley on Separation 

Agreements and Antenuptial Contracts § 22.63[2][l] (2d ed. 2017) 

(must evaluate need in light of other criteria, such as party's 
10

Where, as so often happens, the couple's collective income

is inadequate to allow both spouses to maintain the lifestyle 

they enjoyed during the marriage after their household is 

divided in two through divorce, "the recipient spouse 'does not 

have an absolute right to live a lifestyle to which he or she 

has been accustomed in a marriage to the detriment of the 

provider spouse.'" Pierce, 455 Mass. at 296, quoting Heins, 422 

Mass. at 484. Instead, "[t]he judge must consider all the 

statutory factors and reach a fair balance of sacrifice between 

the former spouses when financial resources are inadequate to 

maintain the marital standard of living." Pierce, supra. The 

act presumptively provides that the "fair balance of sacrifice"

means that the supporting spouse generally should not be 

required to pay more than thirty-five per cent of the difference 

between the parties' gross incomes. G. L. c. 208, § 53 (b).

Here, given the husband's substantial ability to pay, the 

determination of alimony rested solely on the wife's needs, that 

is, the amount necessary to allow her to maintain the lifestyle 

she enjoyed prior to the termination of the marriage. Where, as 

here, the husband's income grew considerably over the years and 

the marital lifestyle grew with it, the wife's need for alimony 

reflects the need to enjoy the more expensive lifestyle she had 

grown accustomed to before the marriage ended. See Zaleski, 469 

 

health).
11

Mass. at 243; Wardle & Nolan, Fundamental Principles of Family 

Law, supra at 715. The judge here appropriately recognized that 

"the parties' needs expanded in accordance with the increasingly 

available income" during the marriage, but the judge erred in 

determining that the wife's need for support is to continue to 

expand after the divorce commensurate with the anticipated 

"upward trajectory" of the husband's income. "[T]he award must 

reflect the parties' marital lifestyle," not the marital 

lifestyle the parties might have enjoyed had they stayed 

together. See Zaleski, supra at 242. Even if the parties 

enjoyed an upwardly mobile lifestyle for the duration of their 

marriage, nothing in the language of the statute or our case law 

suggests that the recipient spouse is entitled, by way of 

alimony, to enjoy a lifestyle beyond what he or she experienced 

during the marriage.8,9

 

8 In light of this conclusion, we need not address the 

husband's argument that the judge was clearly erroneous in 

finding that the husband's income would continue to grow on an 

"upward trajectory." Even if it did, the wife's alimony would 

still be limited to the amount needed to allow her to continue 

to live the lifestyle she enjoyed at the end of the marriage.

9 We do not address what alimony would be appropriate in the 

quite different circumstances of a divorce where one spouse was 

on the cusp of being able to afford a more expansive lifestyle 

after separating from the spouse who had financially supported 

him or her while he or she completed medical school or business 

school. The alimony sought in this case was general term 

alimony. In the circumstances we describe in this footnote, 

G. L. c. 208, § 48, provides for "reimbursement alimony," 

defined as "the periodic or one-time payment of support to a 
12

2. Percentage-based alimony award. The judge ordered that 

the husband pay the wife alimony in the amount of thirty-three

per cent of his various sources of income. The husband contends 

that the percentage-based award is "self-modifying" because the 

amount of alimony he must pay under its terms varies with his 

income from year to year. He contends that a "self-modifying" 

order is prohibited by G. L. c. 208, § 49 (e), which permits 

modifications in the amount of alimony only upon a showing of "a 

material change of circumstances warranting modification."

We reject the argument, as we have before in a different 

context, that a judge lacks statutory authority to order a 

supporting spouse to pay alimony in an amount that may vary

according to variables or contingencies set forth in the order, 

such as the income of the supporting spouse, the rate of 

inflation, or, where the spouses reside in different countries, 

 

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." See Drapek v. Drapek, 399 Mass. 240, 248 (1987) 

(where wife "postponed her educational and professional plans in 

order to put her husband through [medical] school," judge did 

not abuse discretion in awarding wife 9.35 per cent of gross 

income or at least $60,000 with time limit of five years).

We also note that different factors and principles govern

the equitable division of property in a divorce. See G. L. 

c. 208, § 34 (identifying factors judge "shall consider" in 

division of property in divorce); Heins v. Ledis, 422 Mass. 477, 

482 (1996) ("The concepts of alimony and property division have 

been historically viewed as separate and distinct"). We address 

only the issue of general term alimony.
13

changes in the currency exchange rate. See Stanton-Abbott v. 

Stanton-Abbott, 372 Mass. 814, 815-816 (1977) (affirming 

judgment requiring semiannual increases in alimony by one-half 

of any percentage increase in British retail price index). We 

do not consider every change in the amount of payment under such 

an alimony order to be a modification of the judgment, which we 

recognize would require a showing "by the party favorably 

affected that conditions [have] changed justifying the 

modification, and . . . procedural due process for the party 

adversely affected." Id. at 816. "When time brings about the 

change of situation of the parties, or trips the contingency, or 

alters the basis of the calculation, as provided in the 

judgment, we should not regard the corresponding shift in the 

rate of payment as a modification of the judgment which requires 

new justification in another court proceeding. The judgment has 

remained the same although its variable terms, which were 

presumably argued and deliberated before they were approved, 

have produced results which in some sense are new." Id.

As we have also recognized, the fact that the statute does 

not bar alimony orders with variable or contingent provisions 

does not mean that such orders are "advisable on the merits, or 

compatible with the fundamental purposes of alimony." Id. at 

817. Here, the percentage-based award ran afoul of the act and 

therefore was an abuse of discretion not because of its variable 
14

nature, but because it was intended to award the wife an amount 

of alimony that exceeds her need to maintain the lifestyle she 

enjoyed during the marriage.

There may be cases in which a variable or contingent award 

is warranted, but such cases are the exception rather than the 

rule, and must be justified by the special circumstances of the 

case. See id. (parties' circumstances "presented a special 

case"). In most cases, setting the amount of alimony at a fixed 

amount, subject to modification upon a material change in 

circumstances, is preferable in order to provide "a clean break 

between the parties" and avoid "continued strife and 

uncertainty" (citation omitted). Cf. Dewan v. Dewan, 399 Mass. 

754, 757 (1987) (involving division of property). A variable or 

contingent award may make alimony judgments more difficult to 

enforce, especially where the variable or contingency is 

inadequately defined or where it may not be clear whether the 

contingency has been triggered. See, e.g., Wing v. Wing, 549 

So. 2d 944, 947-948 (Miss. 1989) (finding of contempt improper 

where separation agreement did not specify precisely which

consumer price index governed progressive increases in child 

support). See also Breiner v. Breiner, 195 Neb. 143, 145-146

(1975); Provenzano v. Provenzano, 71 A.D.2d 618, 618 (N.Y. 

1979). Awarding alimony as a percentage of income may encourage

income manipulation in order to reduce the alimony obligation. 
15

See Baccanti v. Morton, 434 Mass. 787, 800 (2001) (potential for 

fraud where spouse may collude with employer to manipulate 

compensation in view of divorce proceedings). Relatedly, where 

alimony is a percentage of income, proving contempt becomes more 

difficult because, instead of simply proving that payments have 

fallen short of a specified amount and that the supporting 

spouse had the ability to pay, the parties may be forced to 

litigate what is and is not "income." See, e.g., In re Marriage 

of Winne, 239 Ill. App. 3d 273, 284-285 (1992); Mabee v. Mabee, 

159 Vt. 282, 285-286 (1992) (considering whether capital gains 

are income). We note that the judge thought it necessary to 

appoint a special master, paid for by the parties, to ensure 

compliance "[d]ue to the complicated nature of . . . the ongoing 

obligations between the parties regarding the payment of 

alimony." Not everyone can afford to pay a special master.

We do not suggest that variable or contingent awards are 

warranted only in extraordinary circumstances. We recognize 

that returning to court to modify a judgment may be an 

unnecessary and costly burden where it is based on a foreseeable 

change of circumstances that can be anticipated in the alimony 

judgment. For instance, where the inflation rate is 

significant, a cost-of-living adjustment based on a specific 

consumer price index will result in changes to the actual amount 

of alimony paid, but is intended to keep the original award of 
16

alimony constant in terms of real purchasing power. Several 

Massachusetts cases have affirmed alimony judgments that 

included cost-of-living adjustments. See, e.g., DeMatteo v. 

DeMatteo, 436 Mass. 18, 22, 39 (2002); Mailer v. Mailer, 390 

Mass. 371, 375 (1983); Moore v. Moore, 389 Mass. 21, 22, 26

(1983); Stanton-Abbott, 372 Mass. at 815-818.

There may also be special circumstances where an alimony 

award based on a percentage of the supporting spouse's income 

might not be an abuse of discretion, such as where the 

supporting spouse's income is highly variable from year to year, 

sometimes severely limiting his or her ability to pay, and where 

a percentage formula, averaged over time, is likely not to 

exceed the needs of the recipient spouse. In Wooters v. 

Wooters, 42 Mass. App. Ct. 929, 929-931 (1997), the Appeals 

Court affirmed a judgment that ordered the husband, who was a 

partner in a large law firm, to pay alimony in the amount of 

one-third of his gross employment income because he "was about 

to undergo a serious operation, and it was uncertain how much he 

would be able to work," and because his compensation from his 

law firm "had considerable fluctuations." The court found that 

these circumstances "presented a special case" that suggested 

the use of a "self-executing formula." Id. at 931, quoting 

Stanton-Abbott, 372 Mass. at 817.

The fluctuations in the husband's income in this case do 
17

not present a comparable "special case" warranting the judge's 

percentage-based formula for two reasons. First, given the 

substantial financial assets available to the husband, the 

fluctuations in his annual income do not materially affect his 

ability to pay a fixed alimony award that would meet the wife's 

needs. Second, as earlier noted, the percentage-based formula 

was intended to allow the wife's lifestyle to become more lavish 

than the marital lifestyle as the husband's income increases

over time, not to approximate over time the amount needed to 

meet the wife's need to maintain her marital lifestyle.

10

Conclusion. The case is remanded to the Probate and Family 

Court with instructions to reevaluate the alimony judgment in 

light of our opinion and enter a new judgment accordingly.

So ordered.

 

10 Because we reverse the percentage-based judgment in this 

case, we need not address the husband's argument that the 

provision in paragraph 6(c) of the amended judgment, which

awards the wife a thirty-three per cent interest in any shares 

the husband subsequently acquires with his bonus compensation 

and imposes a constructive trust for the wife's benefit 

regarding these shares, represents an impermissible award of 

property acquired after the marriage.