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Divorce Mediation Blog

#marriedseparateddivorcedcohabitedmarrieddivorced: The SJC makes it up and gets it right: Duff-Kareores v. Kareores – Part 3

Wednesday, July 27, 2016

In our last two entries, we considered the central features of the Supreme Judicial Court’s (SJC) recent case, Duff-Kareores v. Kareores. Today, we comment briefly on a collateral benefit of the SJC’s opinion in another area the Alimony Reform Act (eff. 3.1.12) (ARA): the “common household” provision of in M.G.L., ch. 208, § 49(d). In its decision, the high court lifted the enumerated criteria of §49(d) (how to prove common household) and grafted them onto §48 (how to prove length of marriage to equitably pre-marital economic partnership during cohabitation).

In doing so, the SJC described §49(d) as the factual basis upon which a judge may reduce, suspend or terminate alimony by reason of a relationship that:

“…resembles, but is not equivalent to a legal marriage.”

In this dictum, the SJC says what the legislature did not with the greatest clarity: that the purpose of §49(d) is to give potential recourse to an alimony payor, without the burden of proving abated financial “need”, when an alimony recipient has assumed a marriage-like relationship. In the bare statute, the only word that connotes this meaning is “couple”, appearing in sub-sections ii. and v.; the dictionary meaning of which is not limited to romantic pairings. (See, http://www.merriam-webster.com/dictionary/couple.)

We hope that this collateral comment by the SJC will caution any future litigant against stretching the benefits of §49(d) beyond what we believe be its intended purpose.

 

#marriedseparateddivorcedcohabitedmarrieddivorced: The SJC makes it up and gets it right: Duff-Kareores v. Kareores – Part 2

Thursday, July 14, 2016

In our last entry, we began discussing the law school exam scenario turned real life divorce case in the Supreme Judicial Court’s (SJC) recent case, Duff-Kareores v. Kareores. The trial judge faced the challenge of determining how long the marriage was for alimony purposes, under M.G.L., ch. 208, §4. The parties were married for 8 years, divorced and lived separately for 4 years, cohabited while divorced for 5 ½ years and, finally, re-married each other for 6 months before the onset of divorce #2: uncharted territory under the Alimony Reform Act (ARA) (eff. 3.1.12).

The SJC upheld the inclusion of the first marriage years, and the cohabitation era, but vacated the trial court’s order because the 4-year period of divorced separation should not have been counted, since the statutory marriage extender (§48) is limited to cohabitation periods. The last time, we concurred with the SJC’s treatment of the separation and non-married cohabitation periods.

Today, we tackle the SJC’s decision to include the years of the first marriage in calculating the length of maximum alimony for the second divorce, under M.G.L, ch. 208, §49(b). At stake for the parties:

    1. Was this a 6 or 14-year marriage for alimony purposes?

    2. Was the presumed maximum length of alimony, therefore, 3 years, 7 months or 9 years, 10 months?

The SJC chose the longer marriage length, and resulting alimony term, focusing on the totality of the parties’ marriage/cohabitation history, rather than its truncated reality.

In doing so, the SJC showed little concern that “marriage” is a distinct legal status from pre-marital “cohabitation”, the latter term being the statutory language on which the question turns. The contrary argument goes that a judge may lengthen a marriage by reason of economic partnership during a non-married cohabitation, but the statute says nothing about a prior marriage. But, perhaps because marriage itself includes an expectation of cohabitation, the SJC saw this distinction as one without a difference, for these purposes. Being versed in criminal law, maybe they saw cohabitation as a lesser-included offense!

The SJC also navigated past the fact that the alimony obligations arising from the first marriage had been previously adjudicated by a judgment that included merged alimony; effectively, treating the first divorce as simply another a stop along the way for this evolving family. As we view it, the court, did not re-adjudicate previous rights. Rather, in determining alimony rights created by the law as applied to the second marriage, the trial judge and the SJC simply “counted” years of the first marriage, as part of a factual artifice that the legislature created, and which had to be construed one way or another, in frankly, unanticipated circumstances.

Once the legislature plunged into the business of calling something that it is not– the explicit permission granted by §48 - it opened the door to interpretation. In Massachusetts, the SJC is the interpreter-in-chief; and we don’t have a problem with the call that the high court made on this one. There is nothing in ARA that precludes the Kareores result, and if the purpose of M.G.L, ch., 208, §49(b)’s sliding time scale for durational limits is to honor the concept that longer partnerships connote greater rights and obligations, it seems that the SJC’s construction achieves this purpose.

As the SJC previously said in Bercume v. Bercume (admittedly, a different context), it does not write on a clean slate; and the parties’ here knew their slate very well indeed, including the risks and benefits of ARA, when they resumed marital status. (What a perfect situation for a prenuptial agreement, but that is water under the bridge.)

We do have one reservation that the SJC did not address, however: the troubling fact that the husband paid alimony for 4 years, under the first divorce and before the pre-second-marriage-cohabitation. By tacking on the period of the first marriage as part of the statute’s fictional length of marriage, a risk of double counting arises. It seems that the remand ought to have required the trial court to consider this fact in determining the ultimate alimony term, either as a “credit” against the alimony months ultimately ordered, or at least as an equitable basis for considering a shorter term. After all, M.G.L., ch. 208, §49(b) sets forth a “not longer than” standard and not a rote alimony length.

In our next entry, we will comment on an unrelated collateral benefit of this decision.

 

#marriedseparateddivorcedcohabitedmarrieddivorced: The SJC makes it up and gets it right: Duff-Kareores v. Kareores – Part 1

Friday, July 08, 2016

The Massachusetts Supreme Judicial Court (SJC) recently encountered a fact pattern that only a law school professor could love. In all likelihood, the state legislature did not consider it while cobbling together the Alimony Reform Act (ARA). Then again, life happens; and sometimes we have to make it up on the fly! The SJC did, and got it right.

In Duff-Kareores v. Kareores, the couple modeled marital ambivalence. They married, had 2 children and divorced after 8 years, with a financial settlement that included periodic alimony. After 4 years of divorced living, they resumed cohabitation, albeit without the grace of marriage.

They looked like a family, acted like a family and encouraged the world to see them as one. Five and ½ years later, the reluctant divorcees re-married in 2012. Within 6 months, the wife filed for re-divorce.

This time the parties did not settle their case. Instead, they tried their case to a Middlesex Probate and Family Court judge, to whom fell the task of figuring out how to apply the M.G.L., ch. 208, §48 definition of marital length on these facts, since that, in turn, would dictate the maximum (and likely) length of resumed alimony under ARA.

Section 48 says that the length of marriage is defined by the number of months from marriage ceremony to the date of service of a divorce complaint, but also that:

    “…the court may increase the length of marriage if there is evidence that the parties’ economic partnership began during their cohabitation period prior to marriage.”

(Our italics.) (We can’t resist asking: “How can a marriage be longer than its length?” It’s a bit like calling a 5’10” NBA point guard 6’ 3”. It happens, but he still can’t see over the defender.)

The concept is that for alimony purposes the court may treat a marriage as if it were longer, to account for pre-marital contribution and dependency formation purposes, and to give judges a way around durational limits. This exception (most ARA rules have exceptions) begun as a way to recognize same sex couples who formed families before they could legally marry, has spawned disputes for many modern marriages, where pre-marital home life is increasingly common.

The cohabitation in this case was wedged between divorce #1 and separation #2, so it qualified as “pre-marital”, as the judge ruled. But, he did not distinguish between the post-divorce cohabitation, and its preceding period, when the parties actually lived apart as a divorced family. A literal 6-month marriage, which should have been deemed 14-years (8 + 5½ + ½) – per the SJC - became an 18-year one, by decree.

The Husband appealed. Going for broke – or maybe trying to avoid it – he argued that both the 4-year separation post-divorce and the 5½-year pre-marital cohabitation should have been excluded, because he was really just a “renter” during the cohabitation period. It appears that he staked the latter claim, ironically, on the continuity of alimony payments, which the judge held less pertinent than the lack of a lease and rental payments. (He also appealed the inclusion of the first marriage as a period of pre-marital economic partnership during cohabitation, relative to the second marriage, which we will address in a subsequent blog.)

The SJC agreed about the unmarried separation period, because, the statute says nothing about economic partnerships while not cohabiting. But, what about the cohabitation period? Section 48 bestows the right to equitably pretend that a marriage is longer than it is, but, it gives no guidance on how to resolve to apply it factually.

That’s where the SJC rode to the rescue courtesy of “statutory construction” by resorting to the statute as a “whole”. The appellate court keyed on section 49(d), which has nothing to do with the length of marriages. Rather, it empowers judges to reduce, suspend or stop ongoing alimony in a modification context, when an alimony recipient has created a “common household” with another person for more than 3 months’ time, stated colloquially, for cohabitation. Concluding what legislators would have said, had they thought of it, the SJC concluded:

    … that the Legislature intended to use the terms cohabitation, economic marital partnership and common household to describe a relationship that, if established, would affect a court order for alimony, either by increasing the amount and duration of alimony ordered or by reducing, suspending or eliminating the award.

There is no way of knowing what the legislature really meant, but the SJC’s version makes great sense. It plugs a legislative hole in a logical way, while making a confusing statute a bit more consistent; and the courts now have a list of criteria to consider the next time that family life challenges family law expectations.

 



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