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Lump Sum Alimony Enforceable after Remarriage: Becker v. Phelps But Does Keller v. O’Brien Live Still?!

Wednesday, October 15, 2014

In the recent case, Becker v. Phelps, the Massachusetts Appeals upheld Judge Dorothy Gibson of the Middlesex Probate and Family Court in enforcing the second of two $500,000.00 payments, which was due under a divorce agreement. The payor-wife sought to terminate the payment obligation because the Husband had married again, arguing that the Alimony Reform Act barred the payment post-remarriage, despite the fact that the alimony terms both survived, and did not provide for any termination whatever.

Undoubtedly, the judge and the reviewing court ruled consistently with the parties’ mutual intent as expressed in agreement language cited in the case: if the parties had intended a remarriage cut-off, they would undoubtedly have said so; and the wife’s attack appears opportunistic, at best. The courts correctly stopped her in her legal tracks.

That said, while coming to the right result, the Appeals Court chose to wink at inconsistent language in the divorce agreement, and in so doing, created its own internal conflict. Specifically, the opinion states that: “In their agreement, the parties denominated the lump sum payments in question here not as “alimony,” but as payments made as consideration for the husband’s “waiver of periodic alimony.”” Yet, in footnote 2, the court set out the parties’ own contract language: “In consideration of the Husband’s waiver of periodic alimony…the Wife shall pay [two $500,000.00 payments by dates certain], as non-taxable alimony to the Husband…” (our bolded italics).

Lost in translation: the decision is right not because the payments were not alimony, but because the lump sums were clearly intended to be a permanent alimony “buy-out”, and as such not subject to termination in a surviving agreement absent specific terms that provided therefor. End of story?

Well, maybe not. In cringe-worthy dictum, the Appeals Court revived the SJC’s 1995 Keller v. O’Brien, which we had all thought consigned to the legal dustbin by the Alimony Reform Act, if not previously by Justice Marshall’s SJC opinion in Cohan v. Feuer (2004). For reasons that we cannot fathom, the Appeals Court found it necessary to opine that the new law is not a “direct contradiction of the holding in Keller v. O’Brien…”, suggesting that there may still be circumstances in which an ex-spouse is required to pay alimony to a remarried former spouse without having agreed to do so. Really?

We have focused before on alimony case law that includes concepts that are unnecessary to resolve the issue at hand, and expressed concern that intended consequences are often spawned by over-reach. Keller v. O’Brien was neither germane to Becker, nor likely indicative of any policy that the legislature intended here.



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