The passage of the Alimony Reform Act of 2011 (Alimony Reform)
brought about sweeping changes to the alimony laws in
Massachusetts. One major change was the implementation of
durational limits on alimony awards. For marriages lasting less
than 20 years, a formula is available to determine the length of
time general term alimony may be required.
The statute, M.G.L. c. 208 §48-55, contains language which
allows the durational limits to be applied to alimony orders that
predate Alimony Reform, providing many alimony payors with hope
that their alimony obligation will be terminated. However, the
statute also contains language which allows the probate and family
court to deviate beyond the durational limits based on an
"interests of justice" standard.
Since the passage of Alimony Reform, attorneys and clients alike
have been left wondering how and when the "interests of justice"
standard would be applied and what factors a court will consider in
deviating from the durational limits. A recent decision by the
Massachusetts Supreme Judicial Court provides some limited
answers.
Deviation Beyond Durational Limits
Alimony Reform states that "[a]limony awards which exceed the
durational limits established in [the law] shall be
modified upon a complaint for modification without additional
material change of circumstance, unless the court finds that
deviation from the durational limits is warranted." The court must
then look to whether deviation is "required in the interests of
justice."
In a case of first impression, in November 2016, the SJC decided
in George v. George two important aspects of the deviation
standard. First, the alimony recipient bears the burden of proving
that deviation beyond the presumptive termination date is required
in the interests of justice. Second, the judge must look at the
circumstances of the parties at the time the termination of alimony
is sought, as opposed to the circumstances of the parties at the
time of the initial award of alimony.
Additional factors that may be considered are the same statutory
factors that judges must consider in making an initial alimony
award. Those factors include:
- Advanced age, chronic illness or unusual health circumstances
of either party.
- Tax considerations applicable to the parties.
- Whether the payor spouse is providing health insurance and the
cost of health insurance for the recipient spouse.
- Whether the payor spouse has been ordered to secure life
insurance for the benefit of the recipient spouse and the cost of
such insurance.
- Sources and amounts of unearned income, including capital
gains, interest and dividends, annuity and investment income from
assets that were not allocated in the parties' divorce.
- Significant premarital cohabitation that included economic
partnership or marital separation of significant duration, each of
which the court may consider in determining the length of the
marriage.
- A party's inability to provide for that party's own support by
reason of physical or mental abuse by the payor.
- A party's inability to provide for that party's own support by
reason of that party's deficiency of property, maintenance or
employment opportunity.
- Upon written findings, any other factor that the court deems
relevant and material.
The court also made clear in its decision that it would not
consider an alimony recipient's argument that had they known that
the alimony laws were going to change, or that durational limits
would be applied, they would have negotiated for a larger property
division in the original divorce. The SJC reasoned that if this
argument were to be accepted by the courts, it would effectively
prohibit any payors with alimony awards that predate Alimony Reform
from terminating their alimony obligation under the terms of the
law. In sum, accepting such an argument would nullify that portion
of Alimony Reform in direct contravention of the Legislature's
intent.
Takeaways
As in most cases in the probate and family court, the individual
facts of the case are extremely important, however the
George case has provided some clarification of the statute
that can be utilized to argue either for or against termination of
alimony based on durational limits.
In sum, if a payor has paid alimony beyond the durational
limits, it is wise to consider the alimony recipient's present
circumstances in predicting how successful they will be in
attempting to terminate the alimony obligation. Conversely, an
alimony recipient must be cognizant that he or she will have the
burden of establishing that deviation beyond the durational limits
is appropriate in his or her case.