The Massachusetts alimony statute is a confection of inconsistent terms, Most likely representing differing views of stakeholders involved in its creation. In a recent entry, we noted that this presents opportunities for divorce mediators, at least until the appellate courts begin to "clarify" competing terms. Here, we focus on three parts of the law that we have already encountered in our practice.
First, the statute gives discretion to a judge to award indefinite duration alimony (that is, no fixed termination date other that the death of a party, or the remarriage of the recipient) for marriages of 20+ years’ length – a departure form the general thrust that judge’s must set termination dates. Yet, it also provides that alimony shall terminate upon the payor’s attainment the right to receive full social security old age benefits, for most people now between 66 and 67 years.
These two parts of the law collide in the cases where it may matter most -- long or very long marriages -- in which patterns of dependency are the most entrenched and dependent parties are least equipped to become significant earners by advanced age and all that that implies.
A third provision of the law seems to provide a savings option for the recipient, permitting a judge to deviate from the retirement age cut-off "for good cause shown" (whatever that may mean), by setting a different alimony termination date. It does not state that the court may set an indefinite alimony duration term when bypassing retirement age termination.
So, how do we reconcile these three terms?
One reading of the statute seems to be that in a long marriage, indefinite term alimony may continue beyond the payor's retirement age, if recipient need and ability to pay continue, the court may justifiably provide alimony to a date beyond the payor's social security retirement date; but that it must then terminate at a different date, despite the indefinite duration discretion noted above.
That statutory construction does seem to subjugate the indefinite duration statute to the retirement termination one, even in the act of deviation from the latter; and recently, an excellent lawyer argued in a lawyer-attended mediation session with us that once a judge opts for indefinite term alimony, the retirement clause is nullified. Our guess is that this might be a minority reading, knowing that post-retirement alimony was a major political target in the statute negotiations. But, who is to say that it is wrong, other than an appellate court? For now, it is simply an example of the perils of broad "reform" drafting and good lawyering.
As noted by us earlier, we are free as divorce mediators, at least for now, to use the legislature's work as an invitation for creative interest-based negotiation.
What should an appellate court say when this conflict inevitably winds its way there?