In our last entry, we reviewed the common central holding of this trio of cases; namely, that with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years, alimony payors under judgments that preceded the Alimony Reform Act (eff. 3.1.12) (ARA) cannot benefit from the presumptive retirement age termination provisions of the statute. Today, we look at what seems a particularly unfair precedent on cohabitation that Chin v. Merriot sets.
While many believe that these cases were decided wrongly on the retirement age question, as a matter of statutory construction, there was an unspoken principle that may have understandably influenced the Supreme Judicial Court’s (SJC) rulings. Specifically, countless pre-ARA alimony recipients negotiated property and support deals in a legal environment where alimony payors had no expectation of any pre-ordained termination of alimony short of death or, presumptively, the ex-spouse’s remarriage. Most payors could not afford to pay a premium great enough to achieve an automatic retirement, or retirement age, termination; therefore, payees lacked the “opportunity” to demand one, such as a higher alimony sum, or more property. The prospect of having have these alimony recipients made vulnerable to a presumptive retirement age cut-off that did not exist at the time of their divorces created the aura of potential, and in many cases, substantial inequity. Had they known, one might have worried, the payees might have negotiated differently; and they may have lived and planned differently in the period between divorce and the legislature’s alimony overhaul.
In Chin v. Merriot, though, the SJC went a step further in response to the Husband’s claim of relief due to the Wife’s cohabitation. The same huge class of alimony recipients, who rightfully did not anticipate a presumptive retirement age termination, also did not expect that the status of cohabitation with another person would require a court to reduce, suspend or stop alimony, when they made their deals. Since all of that changed with the ARA, one might be tempted to say that the same putative inequities existed that would justify pulling cohabitation within the sweep of the SJC’s retirement age rulings; but one would be wrong.
There is a huge difference.
First, every alimony recipient has been on notice since 1990’s Freedman v. Freedman that at least to the extent that a cohabiting relationship was found to reduce need for alimony, relief was available to the alimony payor. M.G.L., ch. 208, §49(d) codified the remedy, made it more explicit and did not stress the requirement of showing need reduction. But, the mere fact that the statutory relief can range from a $1 reduction to outright termination shows the needs question to be a live one under ARA, just as it was before. Every alimony recipient for the last quarter century has been fairly chargeable with the knowledge that cohabiting can jeopardize alimony – very unlike mere retirement age. Second, and more compellingly, since the legislature passed the ARA in 2011, and certainly since its effective date on March 1, 2012, everyone who has paid attention to alimony matters at all, has been on notice that the court must now do something, if a common household is properly pleaded and proved. No one cohabiting in 2015 could justifiably plead unfair surprise.
So, it follows that the prejudice to alimony recipients on the cohabitation question is not remotely the same as to those of those for whom retirement age termination was really an abstraction. Certainly, those who commence cohabitation after March 1, 2012, are fully on notice of their vulnerability should they choose to pursue a common household.
We wonder if the SJC considered these differences in deciding Chin v. Merriot, but felt no alternative to sweeping cohabitation in with retirement age so as to justify their reading of uncodified §4 of the ARA as trumping M.G.L., ch. § 49(f). Whatever the court’s reasoning, pre-ARA payors take the hits uniformly. On retirement age, we can see it; but on cohabitation – at least post-ARA cohabitation – clearly not.
It is very – very – hard to believe that this furthers the legislature’s intent.
We will conclude our discussion of these cases the next time, with another aspect of the Rodman v. Rodman decision that should really keep alimony payors – and their lawyers --- up at night.