Divorce Mediation Blog

Appeals Court Clears Up One Alimony Duration Ambiguity While Casually Creating Another: It’s the Payor’s Gift to Keep on Giving, in Sbrogna v. Sbrogna

Wednesday, February 28, 2018

Among the many questions that leapt off the page when the Alimony Reform Act (eff. 3.1.12) was issued in 2011 was how the M.G.L., ch. 208, §48 definition of the “length of the marriage” would be construed for cases in which the parties file a joint petition for divorce under M.G.L., ch. 208, §1A. The application of durational limits, since denominated “presumptive” by the appellate courts, for many individual cases, hung in the balance.

The issue arose because the legislature conflated the different procedures implied by the choice to proceed by complaint (action commenced by one party unilaterally) or by petition (which can only be a joint filing under the statute) in defining marital length, generally, as the time elapsed from the date of:

“legal marriage” to the “…service of a complaint or petition for divorce…” (Our italics.)

The problem is that there is no such thing as service of a 1A petition; and joint petitions predominate mediated divorces, and other cases where successful negotiations precede court filings.

The work-around in divorce mediation was relatively simple: make up a date!

It could be the date of separation, the date of commencement of mediation or any other date that the parties deem to be fair enough. The significance was fairly muted, unless the parties sat on the cusp of an incremental increase of presumed ARA durational limits (50% for 1 to 5-year marriages, 60% of 5 to10-year marriages and so on), or most dramatically upon the parties’ twentieth anniversary, where presumptive limits go to die.

Well-motivated clients found this to be a small obstacle that they could fairly readily nuance with “rough justice”.

The much larger problem was the event of modification actions, where a judge is tasked with determining the presumption durational limit for alimony retrospectively, to decide if durational change is permitted by proof of a simple material change of circumstances, or if a higher burden is demanded for the alimony payee to establish the need for deviation from the presumed time bar, under ARA.

In Sbrogna, the parties divorced under §1A, but not until fairly long after the husband had commenced a divorce complaint that lay dormant during reconciliation efforts and later divorce negotiations. Unfortunately for the husband, the parties filed their ultimate agreement on a joint petition under §1A, rather than in connection with his earlier complaint. (Even if they had filed under the earlier unilateral action, it might not have saved the husband, because despite his representations, the court found no proper documentation of service in its file.)

In any event, the Massachusetts Appeals Court made a facially sensible decision in simply construing the word “service” in the legislature’s “casual turn of phrase” (the court does take its shots) to mean the date of filing of a 1A petition and supporting documents, since service is inapposite to that action.

Unfortunately for Mr. Sbrogna, this meant that he had crossed the 20-year marriage Rubicon, losing the shield of the last remaining presumptive durational limit. But, the rest of divorce world is now on notice, and everyone needs to be cognizant of the complaint or petition upon which the divorce judgment enters, as that will determine which durational limit, if any, will apply, upon modification.

The only problem is, that if we read Sbrogna literally, divorcing parties who intend to avoid the labelling onus of a “plaintiff” and “defendant” complaint, or the archaic six month waiting period imposed by a M.G.L., ch. 208, §1B complaint, and proceed under §1A, have no technically accurate way of calculating the presumptive duration limit that applies to their case, before they sign off on it. After all, the “length of marriage” will continue to extend beyond execution of their agreement, and on to a yet undermined 1A court paper filing date.

Always on the lookout for good mediation work-arounds, we suppose that the parties can define their duration limit in relation to a future date, as in:

    Alimony shall terminate on the first to occur of either party’s death, the recipient’s marriage to another person or the 60% of the number of the full or partial months that have elapsed from the parties’ legal marriage date to the date upon which the parties’ 1A petition and supporting documents shall be filed with the court.

Pretty clunky, but technically correct, we think.

Maybe, that’s just what happens when casual judicial language supplants casual legislation.

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