Sunday, February 1, 2015

The New Massachusetts Alimony Law – A Deal is a Deal

In 2011 Massachusetts enacted an alimony reform law. This law changed many aspects of alimony including imposing termination of alimony when the payor reaches the maximum retirement age and when the payee cohabits. Since enactment of this law, lawyers and Judges have been struggling with the question of how do these changes affect prior alimony agreements and judgments. On January 30, 2015 the Supreme Judicial Court answered this question by stating in essence that a deal is a deal. The Court held that the limits for cohabitation and retirement do not apply retroactively to alimony agreements and judgments that pre-date the enactment of the new law.

This interpretation of the new law does not apply to all alimony judgments. When parties enter into a separation agreement, they have the ability to specify that the agreement merges into the divorce judgment or survives as an independent agreement. If the agreement merges with the divorce then the agreement may be modified in the future if certain conditions are met. If the agreement survives as an independent contract, then the agreement can't be modified by a judge. It may be modified by agreement of the parties. The new alimony law does not give the courts the power to change any prior separation agreements that survive. This new interpretation only applies to separation agreements that merged into the decree of divorce.

In three cases, Chin v. Merriot, Doktorv. Doktor, and Rodman v. Rodman, the court held that with one exception, all alimony judgments that pre-date the new law are subject to modification as if the new law never went into effect. This means that alimony can change if the terms of the separation agreement or divorce judgment state conditions that will change or terminate the alimony or if there is a material change of circumstances. Reaching retirement age or the recipient of alimony cohabitating only constitutes a material change of circumstances if the agreement specifically states so. Otherwise, there can not be a modification for these reasons.

These decisions indicated that the new law does allow termination of alimony for what is known as “durational limits.” For marriages less than twenty years, alimony is limited to a percentage of the length of the marriage. The longer the marriage, the higher the percentage. Prior alimony awards that had no termination date that are merged into the decree of divorce and the length of the marriage is less than twenty years are subject to these durational limits. As a result, a modification may be filed to terminate alimony under these circumstances.



The new alimony law is very complicated. If you have questions about the application of this law you should consult an experienced family law attorney for advice about your particular situation.

1 comment:

  1. I believe the SJC got it wrong. Are they are essentially saying that the only way someone can get relief under an existing alimony order (prior to March 1, 2012) is if it ONLY exceeds the durational limits outlined in the new act?

    This is clearly wrong, and was not the intention of the alimony task force or the legislature, and is not the only way an existing award can terminate.

    They also failed to address what "as otherwise provided for in this act" represents.

    One of the PROVISIONS of the act was labeling or deeming ALL EXISTING AWARDS PRIOR TO THE ACT "GENERAL TERM ALIMONY". That provision, allows the General Law that was changed by the act to be applied "today" or "prospectively" to those orders.

    The question of fairness is irrelevant. The questions is, what does it say and is it Legal?

    But it also begs the question, why are they getting it wrong?

    What did the legislature have to write to make it clearer?

    Are they saying that all of this language about prospective application and otherwise provided for in this act means nothing? If that was the case, the language could or should have been: All existing awards will stand as written, and will end upon the terms therein, or may terminate if they exceed the durational limits set forth in this act upon a request for modification without a need of a change in material circumstances. (or words to that effect)

    If the law were to be retroactive, (which it is not) it would be causing an impact to an existing order BEFORE the act took effect. It clearly is not doing that.

    For example, as in my case, my order stated it “shall not end upon remarriage”. This order was issued in Feb of 09. My ex got remarried in Aug 2010. The law goes in to effect in 2012. If I tried claiming my ex was not entitled to the alimony she received between 8/2010 and 3/1/2012, that would be an example of RETROACTIVE application. During that time, the old law was legal, and the order was legal.

    However, moving forward or prospectively, my alimony by operation of law should have ended on March 1, 2012. To further this point, there is no check box on the alimony modification form to select she is remarried, because the law states it SHALL end upon remarriage.

    * I did not have a surviving agreement; my stip was based on temporary orders, and did not include death or remarriage. The judge added that verbiage to my divorce decree.

    I’ve tried to make my case to my judge, but he is ignoring the fact that my alimony is now “General Term”, he actually stated in his decision:
    “Although the Divorce Judgment predates the Alimony Reform Act, the alimony entered in the Judgment is most similar to reimbursement alimony. It was not intended to be modifiable and was for a fixed amount for a fixed period of time.”

    This is a clear error of law, but without appealing it I cannot do anything to get out of it.

    There is no standard of similarity by which he can make that statement, the law does not provide for it. Further, even if my judge had a time machine and traveled into the future, found out there was going to be a new classification of alimony called “reimbursement alimony”, and stated that in my divorce decree in 2009, by operation of law, it STILL became “General Term Alimony” when the act took effect.

    By the way, the new law and new judgments are already "prospective" by their nature, so that word cannot apply to new cases after the act. It is specifically applying to existing cases before the act took effect.

    Applying the general law prospectively (now) to an existing order of “General Term Alimony”, would end or possibly end it if the requirements are met. (Cohabitation, retirement, material change of circumstance, death, remarriage, no surviving agreement, etc.)

    Sincerely,

    The Disappointed.

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