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.


Proposed IRC §2704 Regulations? Fini

Wednesday, February 21, 2018

Levine Dispute Resolution - Proposed IRC

We have blogged on previously occasions about the Obama-era proposed regulations to tighten practices in valuing family-controlled businesses. Much of the last 14 months have been spent in public scrutiny and commentary of these proposed rules.

Our most recent entry was about presidential Executive Order 13789 (April 21, 2017), the United States Treasury Department that put the proposed §2704 regulations in its crosshairs, in the name of de-regulating business. In its 60-day interim report, Treasury identified including §2704 among eight “Regulations identified for burden reduction”. We wondered then how much the president, his cabinet, West Wing advisors – and all of their heirs -- stand to gain personally, by “unburdening” the American people in this way.

It appears that we now know the answer – or at least infer it: plenty!

On October 2, 2017, Treasury Secretary Mnuchin formally recommended withdrawing the §2704 proposals, as burdensome, unworkable and beyond IRS legal authority. We wish that the current government were not so rife with conflicts that self-dealing would not be our first thought, but it is, so it is. That, and their congenital need to trash anything that has the name “Obama” associated with it.

Politics and skepticism aside, many in the valuation community wish the proposed rules good riddance, too.


The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 9

Wednesday, February 07, 2018

Levine Dispute Resolution - Alimony

“Fair balance of sacrifice?”

In Young v. Young, the Supreme Judicial Court (SJC) imported a concept that it had previously coined in the case of Pierce v. Pierce.

In the latter, the SJC reviewed (and upheld) a modification judgment of the Probate and Family Court in which the judge had reduced, but not terminated, the payor’s alimony obligation after he had voluntarily reduced his income, and his resulting ability to pay, finding that the reduction achieved a “fair balance of sacrifice” between the parties.

This modification concept followed an original divorce judgment which occurred without regard to any such construct. Rather, as a matter of law, the original alimony orders were necessarily based on the wife’s “need”, the husband’s ability to pay and what the divorce judge concluded to be “fair and reasonable”.

The Pierce court’s crafting of “fair balance of sacrifice” focused on the husband’s need to bear up under the circumstances of his own making, even if it felt to him as payor that he had paid quite enough alimony and he deemed the court’s modification judgment to be onerous in his current circumstances.

In the intervening years, the Alimony Reform Act (ARA) (eff. 3.1.12) introduced a formal range of maximum presumed alimony in M.G.L., ch. 208, §53(b) (since deemed the lawful and reasonable presumptive order by appellate case law), without any reference at all to the theme of “sacrifice”.

Rather, by comparing “need” to the maximum of 30-35% income differential, the legislature recognized that there is often not enough income in a case to sustain the marital station in two households, and formalized a longstanding practice of equitably sharing income, after presuming the tax leveraging of IRC §215 (which may or may not survive the 115the U.S. Congress). This is completely consistent with case law that establishes that a recipient has no guarantee of unchanged lifestyle, if the payor can’t provide it.

The equitable sharing of income can be a useful construct both in acknowledging that the parties can’t necessarily maintain the marital standard post-divorce; and in explaining why a payor will inevitably keep more of his or her income than the recipient will receive, because of the post-judgment efforts required to earn the money that funds spousal support.

But a “fair balance of sacrifice”? Where the vast bulk of divorce cases resolve with equal division of assets and debt, how can the same concept justify an unequal division of income, at the time of equitable distribution?

We are not advocating for the equal division of income, and it is not a result that will ever be required in our time. But was it helpful for the SJC to gratuitously introduce a standard that the legislature neither enunciated nor necessarily implied? Was it necessary support for its central outcome in Young? Will it now complicate cases with another subjective standard about which to fuss?

No, no and we’re afraid so.


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