[Note: This blog is corrected to eliminate what we conclude was mistaken in our previous observation that the Supreme Judicial Court had incorrectly stated that the standard of proof for extending alimony beyond its durational limit is the “preponderance of the evidence”. Since this is only a blog, we can correct our errors with the stroke of the keyboard, so we do! We apologize to you, and thank our friend David Lee for pointing this out to us.]
The Massachusetts Supreme Judicial Court (SJC) recently waded into the murky waters of durational alimony limits under the Alimony Reform Act (eff. 3.1.12) in George v. George, upholding the trial court’s denial of relief to an alimony payor on technical grounds, but:
…utiliz[ing] this opportunity to set forth guidance for how the “interests of justice” standard of [M.G.L., ch. 208] §49(b) should be applied when determining whether deviating beyond the durational limits of the act is warranted.
Which they did – sorta.
First, the SJC rejected the inevitable argument in modification of pre-ARA judgments – that alimony recipients who negotiated equal property divisions at a time when case law generally precluded courts from restricting the length of alimony, when faced with newly enacted durational limits, would equitably argue that had they known that alimony would not continue indefinitely, they would have asked for more property.
The SJC understandably reasoned that the trial judge's acceptance of that argument was not only based on speculation, but if allowed to stand, it would negate the retrospective effect of durational limits for pre-ARA judgments, inconsistently with the statute, and its own precedents. Hence, our title.
The SJC then stated that:
Further, a judge should evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce. As a logical example, the justices posited that if the recipient were disabled at the time of the initial alimony award, the trial court may consider the current level of disability, as that may impact on present needs.
Then, the murky got just a little bit murkier. The SJC noted the trial court's broad discretion in setting alimony, but also set out the specific text of M.G.L., ch. 208, §53(e), with 8 specific criteria that a court may consider when initially ordering, or modifying alimony, plus the 9th innominate “anything else relevant" factor.
Unfortunately, the SJC deviated from statutory text, again, by replacing the legislature’s suggestion that the trial court "may" consider the §53(e) factors, with "here, the appropriate statutory factors to be considered are…” (italics ours), curiously passive, but a mandate nonetheless. In turn, this creates a bizarre anomaly, in relation to factor # 6, which requires, by the SJC’s lights, that the court weigh:
… significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining length of the marriage; …
Mischievous minds wonder if the trial court's initial determination of the length of the marriage, and hence the durational limit itself, is up for redetermination at the time of potential extension? At a different time, in a different place by a different judge? Does this mean that a party who did not raise significant premarital cohabitation as an issue at the time of divorce is not precluded from raising it at the time of requested extension? Is the issue ever precluded?
All the result a not-too-careful, and unfortunate, shift of statutory language.