Divorce Mediation Blog

If It Looks Like a Duck: Might Just as Well Get Married

Wednesday, May 07, 2014

It looks like the days of the cohabitation dividend may be numbered.

As anyone who cares, knows, M.G.L., chapter 208, section 49(d)(2) (eff. 3/1/12), directs that a probate and family court judge shall reduce, suspend or terminate alimony when the recipient is shown to have cohabited (as defined) for more than three months. And, the courts have been busy hearing requests to do exactly that regularly ever since.

A hot controversy over section 49(d)(2) is whether the enactment of the new law was itself a change of circumstances that would allow the court to act, in a case where the cohabitation pre-dated the new law, or if the alimony payor would only have access to relief if he or she could show a substantial change of financial circumstances since the court’s last judgment in the case, be it a divorce or a modification. Lawyers have debated this issue, including in this blog. (See, Maureen McBrien’s “Impact of Cohabitation Under Alimony Reform Act”, May 2, 2012; and David Lee’s “Counterpoint re: Alimony Reform and Cohabitation”, July 10, 2012.)

One judge recently decided the issue for the parties in Schwartz v. Schwartz, Middlesex Probate and Family Court Docket No. 03D 2715. Judge Edward F. Donnelly concluded that the new alimony statute was itself sufficient to justify alimony termination, and he did just that. Critically, the request under Section 49(d)(2) concerned an established cohabitation that Judge Donnelly saw as tantamount to marriage; and the relationship existed in that form before a previous modification judgment between the parties. Financial circumstances had not substantially changed since the last judgment; the common household circumstances had not changed either; and the only material change was enactment of the statute.

In his rationale, the judge observed that:

    It does not make sense that the husband is penalized because of a modification judgment which entered almost two years prior to the enactment of the alimony reform act. To require the husband to show a change of circumstances independent of the statute would render the language of G.L.208, [s.] 49(d), which requires that the court terminate, modify or suspend alimony upon cohabitation of the recipient spouse, meaningless in many cases. (Italics added.)

Certainly, a clear statement from a thoughtful judge; but one with which Ms. Schwartz deeply disagrees, one assumes. We expect that an appeal will follow on this delicate point of policy and statutory interpretation. Just one of many appellate cases to come from the alimony reform statute: the gift that keeps on giving.

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


alimony reform legislation fraud family and probate law disputes family support health insurance traditional negotiations Alimony Reform Act Massachusetts alimony and child support disputes Same Sex Marriage divorce and family law Levine Dispute Resolution Obamacare litigation Massachusetts lawyers alimony orders med/arb private dispute resolution divorce mediators mediation divorce mediation Massachusetts alimony Major League Baseball Arbitration Chouteau Levine Defense of Marriage Act Massachusetts Alimony Reform Act Levine Dispute Resolution Center LLC divorce process resolve disputes conciliation Baseball arbitrator Massachusetts divorce lawyers Boston special master facilitated negotiations alimony law arbitration family law arbitrators Twinkies lawyer arbitrators Levine Dispute Resolution Center divorce and family law mediators how baseball arbitration works family law arbitrator Levine Dispute Resolutions divorce mediations alimony statute Family Law Arbitration divorce arbitrators alimony IRC §2704 divorce mediator LDRC rehabilitative alimony divorced General term alimony mediators divorce lawyers Child Support Guidelines Self-adjusting alimony orders Cohabitation Massachusetts divorce mediators Baseball Arbitration mediations mediator MLB labor agreement support orders Massachusetts Lawyers Weekly self-adjusting alimony Matrimonial Arbitration child support annulment health coverage The Seven Sins of Alimony family law family law mediation DOMA separation divorce arbitration dispute resolution Massachusetts COLA SJC high-risk methodology Divorce Agreements medical benefits divorce judgment Baseball Players divorce litigation Uniform Arbitration Act lawyer-attended mediation family mediation med-arb Divorce divorce agreement pre-ARA alimony lawyers divorce arbitrator