Imagine with us for a moment.
You represent the lower earning spouse whose income is insufficient to fully meet his lifestyle needs. His job is insecure, but not enough to convince the judge to discount it as best evidence of earning capacity. Or, his spouse’s earnings curve is ascending, with the resulting potential for a greater alimony award for your client, if only the alimony determination were made, not now, but later. The presumed durational alimony limit is 7 years, and the potential payor is 15 years shy of social security retirement age. So, your client can play for up to 8 years’ time before his spouse’s retirement age threatens the presumed maximum term.
Do you have your client disclaim alimony at the divorce trial?
Or, you represent the higher earner. She knows her income prospects are rising, and she takes spouse’s griping about job insecurity as a smokescreen for his wish to walk away from a steady but unpleasant occupation. He signals that he is not going to ask for alimony at trial.
Do you demand that your client have the right to begin paying alimony immediately?
Both sound far-fetched, but less so after the Supreme Judicial Court’s (SJC) Snow v. Snow, released, as our old friend Jessica Dubin noted, on a recent snow day in Boston.
In Snow, the SJC decided that alimony durational limits do not begin to run until a judgment that affirmatively orders alimony enters (subject to Holmes exceptions); hence, if a divorce judgment does not include alimony, but alimony orders arise from a subsequent modification judgment, the durational clock does not start until the later judgment.1
In other words, disregard the procedural labels. A modification judgment that initiates alimony is an initial judgment for alimony purposes; so, the plaintiff need not show changed circumstances; and he can still demand the full presumed maximum durational term.
We could quibble about the substance of the decision itself. Do you think that the legislature intended this result when M.G.L., ch. 208, §53(g) (if child support alone, or unallocated support is ordered at divorce, the durational clock on alimony runs from that judgment, despite the absence of alimony orders) dictates the opposite?
But, to us, the counterintuitive incentives that Snow sets up are more interesting.
When was the last time that you advised a client to demand the privilege of paying alimony when tax leverage was not at stake? Or, to decline it when it is there for the taking?
And either client’s likely reply?
“What are you nuts?”
Maybe not after this particular Snow day.
1Query whether this new rule would apply to a merging separation agreement that actually recites that the parties are waiving past and present, but not future, alimony.