Divorce Mediation Blog

“Self-Modifying” Divorce Judgments: The Appeals Court Feels Strongly Both Ways. Hassey v. Hassey, Part One

Tuesday, August 05, 2014

In the recent case of Hassey v. Hassey, the Appeals Court reversed Judge Jeffrey A. Abber of the Essex Probate and Family Court, in part, for ordering alimony as a percentage of the husband’s ongoing income, rather than as a flat sum. They justices ruled that the judge had pre-decreed a modification of his own judgment based on facts and circumstances that had not yet changed. Thus, they reasoned, he deprived the husband of the right to resist such a change based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.

This part of the decision was not surprising. The principle enunciated arises from long-standing precedent, with only 2 previous reported and relatively narrow appellate exceptions. Yet, curiously, the Appeals Court did not vacate that part of the judgment that determined that alimony shall terminate upon the wife’s cohabitation. Before the Alimony Reform Act of 2011 (eff. 3.1.12), this provision would have been absolutely contrary to law. Now, cohabitation is a statutorily recognized basis for change.

But the statute does not dictate the kind or extent of change. The law provides that if cohabitation occurs within the definition provided in the act, then the court shall do something. However, it requires the modifying judge to calibrate the remedy to the circumstances that exist at the time of the cohabitation. A judge may reduce, suspend or terminate alimony. So, when the Hassey judgment decreed that the wife’s cohabitation would automatically terminate alimony, the wife was denied the right, assured by the Alimony Reform Act, to resist termination based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.

Did the wife fail to perfect this as an issue on appeal, relieving the court of an obligation to address it? We cannot know from the text of the decision. Without doubt, though, the decision is inconsistent, and the cause of consistency and predictability, its victim.

Next: Needs versus 30-35% in Section 53(b): In Its First Foray, Has the Appeals Court Legislated? Hassey v. Hassey, Part Two

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

Delivered by FeedBurner

other articles

recent posts


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