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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

 

If It Looks Like a Duck: Might Just as Well Get Married

Wednesday, May 07, 2014

It looks like the days of the cohabitation dividend may be numbered.

As anyone who cares, knows, M.G.L., chapter 208, section 49(d)(2) (eff. 3/1/12), directs that a probate and family court judge shall reduce, suspend or terminate alimony when the recipient is shown to have cohabited (as defined) for more than three months. And, the courts have been busy hearing requests to do exactly that regularly ever since.

A hot controversy over section 49(d)(2) is whether the enactment of the new law was itself a change of circumstances that would allow the court to act, in a case where the cohabitation pre-dated the new law, or if the alimony payor would only have access to relief if he or she could show a substantial change of financial circumstances since the court’s last judgment in the case, be it a divorce or a modification. Lawyers have debated this issue, including in this blog. (See, Maureen McBrien’s “Impact of Cohabitation Under Alimony Reform Act”, May 2, 2012; and David Lee’s “Counterpoint re: Alimony Reform and Cohabitation”, July 10, 2012.)

One judge recently decided the issue for the parties in Schwartz v. Schwartz, Middlesex Probate and Family Court Docket No. 03D 2715. Judge Edward F. Donnelly concluded that the new alimony statute was itself sufficient to justify alimony termination, and he did just that. Critically, the request under Section 49(d)(2) concerned an established cohabitation that Judge Donnelly saw as tantamount to marriage; and the relationship existed in that form before a previous modification judgment between the parties. Financial circumstances had not substantially changed since the last judgment; the common household circumstances had not changed either; and the only material change was enactment of the statute.

In his rationale, the judge observed that:

    It does not make sense that the husband is penalized because of a modification judgment which entered almost two years prior to the enactment of the alimony reform act. To require the husband to show a change of circumstances independent of the statute would render the language of G.L.208, [s.] 49(d), which requires that the court terminate, modify or suspend alimony upon cohabitation of the recipient spouse, meaningless in many cases. (Italics added.)

Certainly, a clear statement from a thoughtful judge; but one with which Ms. Schwartz deeply disagrees, one assumes. We expect that an appeal will follow on this delicate point of policy and statutory interpretation. Just one of many appellate cases to come from the alimony reform statute: the gift that keeps on giving.

 

Alimony Reform: One Year Later – Part 2

Wednesday, January 16, 2013

In our last entry, we explored some of the self-reflection in the legal community about the experience and leanings of Probate and Family Court judges in applying the new Massachusetts alimony laws, one year after enactment. We noted three apparent points of emerging consensus. Here, we discuss two areas of substantial disagreement among judges, which in turn limit lawyers and parties’ sense of predictability of result in court.

  1. The statute that became effective on March 1, 2012, requires that a judge either reduce, suspend or terminate alimony when the recipient has maintained a “common household” (called cohabitation) for more that three-month’s time. Before the ink on the act dried, lawyers were debating if a cohabitation that had begun before March 1, 2012 could form the basis for mandatory action by a judge after the effective date of the act; or if the common household had to begin post-March 1st to make action by the court mandatory. (The court has long had the right but not the obligation to alter an alimony obligation for a cohabitation that results in diminished need for alimony for decades.) It appears that the trial court judges are split on this, resulting in conflicting orders in different courts.
  2. The new statute mandates durational limits for what it calls “general term alimony” (that is, a maximum length of alimony payments based on the number of months of marriages of fewer than 20 years duration). The statute is silent about when the term of alimony begins: whether at the date of the divorce judgment, or at the earlier date of the start of “temporary orders” (court ordered support payments during the pendency of a divorce case, which can be one to many years in length). No consensus is apparent, which is not surprising given the statute’s lack of direction.
  3. It is the nature of complicated statutes that different judges will apply it differently. This does not reflect poorly on judges at all, but demonstrates their ability and willingness to think and to apply their own sense of reason to an unclear statutory mandate. In time, those areas will become clarified through what is called “case law”, or decisions by appellate courts based on people’s appeals from the Probate and Family Court. A statute as comprehensive and broadly used as this one, which is applied every single day in the Commonwealth, will take many years to interpret, to flesh out and to fully understand.

And, in all likelihood, the statute will be amended further by the legislature.

 

Counterpoint re: Alimony Reform and Cohabitation

Tuesday, July 10, 2012

By: David H. Lee Maureen McBrien’s opinion piece in Lawyers Weekly of April 30, 2012 was interesting to read as a perspective of an attorney facing a new issue in the area of family law.  It is important that the changes in the Alimony Law, which went into effect March 1, 2012 be highlighted, and that dialogue ensue with respect to the provisions of the newly enacted law.  Her opinion, however, specifically with respect to her subsection on “When is a modification warranted on cohabitation grounds?” seems in large respect to be inconsistent with the wording of H 3617, the Act Reforming Alimony in the Commonwealth, particularly where she suggests that relief under the Act would not be available if cohabitation had begun prior to March 1, 2012.  Her conclusion that the cohabitation relationship has to have begun post-March 1st in order to seek relief of modification based on cohabitation is not accepted.

The measuring focus for any modification of a divorce judgment is the change of circumstance that has occurred following the entry of that judgment.  Ms. McBrien suggests that the change of circumstance based on cohabitation would require that any such cohabitation be after the effective date of the Act; namely, March 1, 2012, to be a basis for relief.  Now, rather than a pure standard of change of circumstance, the facts supporting cohabitation after the judgment, consistent with the provisions of Section 49(d), provides the basis for relief under the Act.

While Section 4(a) of the Act indicates that Section 49 of Chapter 208 of the General Laws shall apply prospectively, alimony judgments entered prior to March 1, 2012 shall terminate on three bases: (1) only under the terms of such judgments; (2) under a subsequent modification; or (3) as otherwise provided for in this Act.  Section 4(b) of the Act indicates that the enactment into law of Sections 48 through 55 of Chapter 208 of the General Laws shall not, in and of itself, be a material change of circumstance warranting modification but for existing alimony judgments that exceed the durational limits under Section 49 of Chapter 208 of the General Laws with respect to which the Act shall be a material change of circumstance which warrants reduction.

Thus, events which have occurred subsequent to a divorce judgment entered prior to March 1, 2012 can serve as a basis for modification.  These events are not limited merely to a reduction in or increase to the income of one of the parties, but also may include events subsequent to the entry of the judgment of divorce with respect to which relief is provided for in the Act.  These specifically include cohabitation and reaching full retirement age.  The reason that the Act itself can serve as a change of circumstance with respect to which a modification shall be based is that the durational limits referred to in Section 49 are measured with reference to the length of the marriage.  The length of the marriage which has been ended cannot be extended so there is no post-divorce judgment event which could serve as a basis for change of circumstance and modification.  A specific indication that the durational limits within the Act shall be deemed a material change of circumstance provides the opportunity for relief based upon the terms of Section 49.

The particular bases for modification of cohabitation or achieving full retirement age, are ongoing circumstances beyond the entry of a judgment of divorce.  One continues to get older after the judgment of divorce. One can commence and continue on a daily basis, a period of cohabitation beyond the entry of a judgment of divorce.  One cannot, however, extend the length of the marriage.  With respect to cohabitation, in particular, each day of cohabitation is effectively a new starting point such that the three month period of time referred to in Section 49(d) runs from each day forward.  Therefore, irrespective of whether the commencement date of the cohabitation was prior to March 1, 2012 and continues beyond March 1, 2012 a Plaintiff seeking relief by reason of cohabitation would not be precluded from bringing that action for relief.  There is nothing in the Act to suggest that a cohabitation which began prior to March 1, 2012 and continue beyond March 1, 2012 is outside a class of cohabitation with respect to which relief can be provided.

Ms. McBrien’s suggestion that the use of the words “upon the cohabitation” suggests problems for alimony payors where the recipient’s cohabitation began prior to the passage of the Act is not consistent with the reading of Section 49(d). Section 49(d) indicates a mandate that alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household…for a continuous period of at least three months. The word “upon” is the basis for the suspension, reduction or termination of alimony. It is not an event of time (read “based upon”). The time event is “when the payor shows”.

As with all standards of modification; namely, seeking relief from the entry of the last judgment, cohabitation now serves as a basis for seeking post March 1, 2012 relief as provided for in the Act.  The prospective nature of the Act precludes going back to an event of cohabitation during a period of time prior to the effective date of the Act and seeking relief through reimbursement of alimony, but does not prohibit relief, based on cohabitation, from an alimony order that otherwise would extend beyond March 1, 2012 merely because that cohabitation first began prior to March 1, 2012..

It should be noted, as well, that there is no restriction in time regarding when it is an action for modification based upon cohabitation can be commenced after March 1, 2012 as there is in Section 5 applicable to durational limits and Section 6 with respect to reaching full retirement age..

Conclusion

One may seek prospective relief with respect to a pre-March 1, 2012 alimony order based upon cohabitation as defined in Section 49 irrespective of whether that cohabitation commenced before March 1, 2012.

David H. Lee was a Co-Chair of the MBA/BBA Alimony Task Force and a member of the Massachusetts Legislative Alimony Reform Task Force.

Fern Frolin (a member of the Massachusetts Legislative Alimony Reform Task Force) and Denise Squillante (Co-Chair of the MBA/BBA Alimony Task Force and a member of the Massachusetts Legislative Alimony Reform Task Force) note their concurrence with this opinion.

This piece was published as a Letter to the Editor of Massachusetts Weekly, July 9, 2012 edition.  Posted with the author's permission.

 

Impact of Cohabitation Under Alimony Reform Act

Wednesday, May 02, 2012

By Maureen McBrien

A marked change to the statutes that govern divorce in Massachusetts is the provision in the new Alimony Reform Act of 2011 that went into effect on March 1 of this year. The provision provides that an alimony recipient’s cohabitation with another person constitutes grounds for a termination, suspension or reduction in the payor’s alimony obligation.

What does that mean for the numerous alimony recipients who have been cohabiting for months, if not years, prior to the new law and for those who are contemplating cohabitation in the future?

This article will attempt to explain the nuances of the Alimony Reform Act of 2011 as it pertains to particular situations that involve an alimony recipient who has been cohabitating — or will be in the future.

Under the prior law, an alimony order was typically entered and continued indefinitely until — whichever occurred sooner — the death of either party, the remarriage of the recipient, or by order of the court upon a judgment following the filing of a complaint for modification alleging a material change in circumstances since the prior order issued.

What frustrated many payors was the continued obligation to pay alimony notwithstanding the recipient’s cohabitation with a romantic partner in a relationship akin to a marriage.

In some instances, recipients purposefully avoided marriage solely so they could continue receiving alimony. That prompted the movement to include a cohabitation provision in the new act to avoid such gamesmanship.

What is cohabitation?

Under the act, alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.” G.L.c. 208, §49(d).

The act enumerates several factors to determine whether a recipient spouse maintains a common household with another person. While not explicitly so stating, the enumerated factors are reflective of a romantic relationship akin to a marriage, as opposed to simply sharing a primary residence with, for example, a sibling, roommate, nanny or temporary boarders.

The act will fuel the private investigation business, as investigators search for evidence as to whether alimony recipients are in fact cohabitating as defined in the act.

Financial contribution of cohabitating partner

Although alimony is still premised on the need of the recipient and the payor’s ability to pay, the act makes no explicit reference to the financial contribution of the recipient’s cohabitating partner.

While in most circumstances a cohabitating partner’s financial contribution would reduce an alimony recipient’s need for financial support from a prior spouse, in some circumstances the cohabitating partner could be a financial drain on the alimony recipient.

But under the act, financial inquiries are irrelevant, at least at the outset, and the only emphasis is on whether a recipient is cohabitating.

The theory behind that juxtaposition is that ex-spouses should not be obligated to support prior spouses who are in a committed relationship akin to a marriage. Once such a relationship exists, it is incumbent on the couple to support themselves, independent of an ex-spouse.

The reality, however, is that such financial independence will not be achieved by some cohabitating recipients simply by virtue of their cohabitation arrangement.

Nevertheless, the alimony payor may be entitled, at the very least, to a reduction in his alimony obligation in such a circumstance. Under what circumstances does cohabitation warrant a suspension, reduction or termination in alimony?

Once it is determined that an alimony recipient does qualify as one who is cohabitating under the act, the inquiry in a complaint for modification by the payor is whether such fact entitles the payor to a suspension, reduction or termination in alimony.

That is when finances will come into consideration, since even though the act is silent in that regard with respect to cohabitating recipients, the court will obviously need to look at finances to determine whether a reduction as opposed to a termination is warranted.

If the relationship is long-lasting and the cohabitating partner is, in fact, contributing financially and has some savings and/or assets, a termination likely would be warranted.

But if the cohabitating partner is unemployed or disabled, the payor may be entitled to a reduction only.

That inquiry would seemingly expose the cohabitating partner to discovery in the context of a litigated modification action, to determine what his or her income, assets and liabilities are. This may create a double standard as the act is clear that spouses of payors are insulated from such discovery when the tables are turned and the recipient files a complaint for modification seeking an increase or continuation in alimony.

An alimony recipient must accurately disclose on his or her financial statement exactly what expenses are paid for by a cohabitating partner to the household. Such a disclosure might suffice in lieu of extensive discovery in this regard, other than perhaps sending out a few subpoenas to banking institutions to verify the representations.

When is a modification warranted on cohabitation grounds?

Family lawyers in Massachusetts are being flooded with calls from alimony payors elated at the word of alimony reform in the commonwealth. They want to know what they can do to obtain relief and when.

The answer is complex and factually driven, and for purposes of this article will only focus on the issue of cohabitation. The act provides that alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.”

The words “upon the cohabitation” suggest problems for payors in situations in which alimony recipients have already been cohabitating prior to the passage of the act, as the language is suggestive of future cohabitation.

If the recipients are already in a long-term cohabitating relationship, then what is the material and substantial change in circumstances warranting a modification of alimony, other than the passage of the act? There may be none.

With respect to relying simply on the passage of the act itself and its suggestion that alimony payors are entitled to a suspension, reduction or termination of alimony when the recipient is cohabitating, Section 4(b) of the act makes clear that Section 49, which governs cohabitation, shall not be deemed a material change of circumstances that warrants modification of the amount of existing alimony judgments.

Therefore, in instances in which a recipient was already cohabitating as of March 1, when the act went into effect, there is no change in circumstances for the alimony payor upon which to obtain relief.

The payor would need other more traditional reasons to warrant a modification, such as a reduction in income since the date the alimony issued or was last modified. And, in any event, an alimony payor’s relief may only be temporary, as the act provides for a reinstatement of alimony in instances in which the cohabitating relationship no longer exists. See G.L.c. 208, §49(d)(2). Since the act is prospective in its application per Section 4(a), the cohabitation inquiry for payors regarding their recipient ex-spouse began on March 1, 2012, and can only be satisfied if the cohabitating relationship still exists upon the expiration of 90 days, or by the end of May.

If the recipient is in a cohabitating relationship that began prior to March 1, and cohabitation is the only grounds upon which the payor seeks relief, then arguably there is no change in circumstances independent of the act (which cannot in and of itself constitute a change in circumstances of existing alimony judgments, except as to situations in which payors are paying beyond the new duration limits imposed by the act). See G.L.c. 208, §49(b).

Recipients under previously existing alimony orders who begin cohabitating for a period of 90 days or more post-March 1, however, will be subjected to a suspension, reduction or termination in their alimony obligation upon the filing of a complaint for modification by the payor, since such situation arose after the implementation of the act and thus constitutes a change in circumstances from the prior judgment independent of the passage of the act itself.

New alimony orders issued post-March 1 will be subject to modification if, as and when a recipient begins cohabitating, per the new law.

Conclusion

Under the act, cohabitation is clear grounds for modification of new orders and of existing orders when the cohabitation relationship began post-March 1.

In all other circumstances, the fact of cohabitation exposes the recipient to a potential reduction or termination, but it is not at all certain and is highly dependent on what other grounds for modification may exist.

Maureen McBrien practices family law at Todd & Weld in Boston and is an adjunct professor at Suffolk University Law School. She is currently co-authoring the Fourth Edition of “Massachusetts Practice, Family Law and Practice” with Charles P. Kindregan Jr. She can be contacted at mmcbrien@toddweld.com.

Previously published in April 30, 2012 edition of Massachusetts Lawyers Weekly. Posted with permission of the author.

 



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