Divorce Mediation Blog

Alimony in Massachusetts: Discretion “Unaffected”? Zaleski v. Zaleski, Part Three

Wednesday, October 01, 2014

In our last two entries we introduced the SJC’s second case, Zaleski v. Zaleski, on the Massachusetts Alimony Reform Act, eff. 3.1.12, in which it upheld a judgment of 5 years of rehabilitative alimony to the wife at the conclusion of a 16-year marriage; and then we discussed the evolving role of recipient needs as impacted thereby. Here, we consider a remarkable comment by the court in footnote 13, in which the SJC wrote:

    The legislative history clearly shows that the broad discretion judges historically have had in making awards of alimony was not affected by the Alimony Reform Act of 2011.


    Indeed, the Legislature appears to have viewed the creation of the four categories of alimony as providing greater discretion to judges.

The court then cited comments from legislators during the pendency of the bill that do not support either proposition. And if that was “the Legislature’s”, view, it was certainly wrong.

The alimony reform bill was all about changing judges’ discretion: broadening it in some ways and restricting it in others. Without the retention of discretion, neither the Probate and Family Court nor the organized bar would have supported the bill and it is unlikely that the bill would have survived without those endorsements. But to say that this means that the judges’ discretion is unaffected could not be further from reality.

Some ways in which discretion is broadened:

  1. A judge may now fashion short-term awards in appropriate circumstances. These remedies pre-existed the statute but they were dimly defined by case law, and because of the cases, they were reluctantly and rarely applied.
  2. A judge may now reduce, suspend or terminate alimony by reason of the status of cohabitation, something prohibited by the SJC in the last of the cases Bell v. Bell, in the 1980’s.
  3. A judge may now decline to order alimony continuation after social security retirement age of the payor, even if he or she is still earning and need of the payee persists.
  4. A judge may more readily “tack on” years of marriage for pre-marital periods of economic partnership, but within the context of strict durational limits, noted below.

Some ways in which discretion is restricted:

  1. A judge may not order alimony post social security retirement age of the payor except under narrowly proscribed circumstances and conditions.
  2. A judge may not consider expected income from assets being divided in calculating alimony, at least in applying the percentage income differential of the statute.
  3. A judge may not consider second job incomes in modification cases where the income was obtained to facilitate compliance with the initial orders
  4. A judge may only impute income to a party who is alleged to be underemployed with evidence of available employment.
  5. For marriages of under 20 years duration, a judge is prohibited from entering an indefinite duration award; and she has rigid time restrictions with each 5 year block of shorter marriage.
  6. A judge may not extend alimony beyond defined termination points without heightened levels of evidence provided by the payee.
  7. In cases of proven cohabitation and judge must do something, albeit within a range from the symbolic to the terminal.

Different constituencies will argue that some of these changes are positive while others are regressive; but discretion is clearly affected by the alimony reform statute.

We were always taught that we should not cite legislative history in Massachusetts, but neither of us can remember the source of this teaching. But the “why” is now a bit clearer.

Go Back to Rehabilitative Alimony: Its All about the Effort, Or is It? Zaleski v. Zaleski, Part One


Rehabilitative Alimony: Whatever Happened to Needs? Zaleski v. Zaleski, Part Two

Wednesday, September 24, 2014

In our last entry we introduced the SJC’s second case on the Massachusetts Alimony Reform Act, eff. 3.1.12, in which it upheld a judgment of 5 years of rehabilitative alimony to the wife at the conclusion of a 16-year marriage. The sum of alimony in Zaleski v. Zaleski was $140,000 per year, 35% of the husband’s base salary. The SJC vacated this part of the judgment, requiring that alimony be recalculated to take into account that the husband’s overall employment income generally ran closer to or above $1 million annually.

In reaching this conclusion, the court examined the statutory provision that alimony (except reimbursement alimony) should generally not exceed the recipient’s need or 30 to 35% of the difference between the parties’ gross incomes, excluding income arising from the parties’ property as divided and income used to compute a child support award. In doing so, the SJC begged the question that we have raised previously here: did the legislature intend that “need”, the historical measure of maximum alimony before the new statute, be a “ceiling” on alimony going forward, or a “floor”. In other words, if the payor earns enough to provide support in excess of “need” by paying 30-35% of the income differential, should he or she be required to do so? Or, if 30-35% exceeds need, should need limit the award?

The SJC answer seems to be, “neither of the above”.

To be sure, the SJC issued Zaleski in the context of a marriage wherein the trial judge had found that the parties had “spent beyond their means”, and this led the court to distinguish between historical spending from “need”. Nonetheless, the SJC treated recipient need and the income differential percentage as independent measures: simply a menu from which a judge may pick to measure alimony under the circumstances presented. How does this square with decades of decisional law the preceded the new statute?

Ironically, on the facts of this case, the SJC decided that $140,000 per year of alimony was insufficient for the 5 years of rehabilitative alimony that it approved; while concluding in the same breath that her predicted re-entry into the workforce would make her “self-sufficient”. This, after the court did not fault the trial judge for declining to find that her income would likely reach $160,000 - $170,000 (noting that her historical base pay was $127,000-$130,000). Following this logic, and applying the same 35% measure that the trial judge used for a $1million payor income, alimony would be $350,000 while, predicted replacement income below $160,000 would constitute self-sufficiency, or one assumes, the elimination of “need”.

There is something fuzzy about the math, if not the logic. And, even assuming that the parties spent beyond their means, does leaving the husband with the capacity to do so and the wife with an undefined future income capacity that is perhaps 85% lower, pass a fairness test? Is there a functional difference between “need” when dependent and need when “self-sufficient”?

So where does Zalesky leave the law with regard to need-based alimony? Is this long-standing and assumed pillar of alimony now optional? Does it apply differently in short-term alimony than for general term alimony judgments? Is the standard for payment in rehabilitative alimony different than the measure of self-sufficiency that supplants it?

Next: Alimony in Massachusetts: Discretion “Unaffected”? Zaleski v. Zaleski, Part Three


S.J.C. To Alimony Payors: No Credit for Time Served

Wednesday, April 16, 2014

Finally, the first precedential appellate case on the Massachusetts Alimony Reform Act (eff. 3/1/12) has emerged under the name of Holmes v. Holmes (April 2, 2014). The issue addressed is whether or not the payor of alimony under “temporary orders” of the court (payments by agreement or judge-made decision during the pendency of a divorce case) is entitled to “credit” for those payments against what the Massachusetts Supreme Judicial Court (SJC) has now named “maximum presumptive duration” of general term alimony. The answer is “no”.

In reaching this conclusion, the court reasoned that temporary alimony orders arise from a different statute altogether (M.G.L., chapter 208, section 17) and that the context of the new statute is fully about divorce and modification judgments. The SJC emphasized the maximum in the presumption of duration and left it to Probate Court judges to consider case-by-case whether the matter was “unusually long” or “unfairly delayed… [by the alimony recipient] in an attempt to prolong the payment of alimony…”

Lawyers joked when the new alimony law became public that it was the “lawyer’s full employment act”. This first “reported” case support’s the bar’s prediction.

While we do not quarrel with the legal analysis of the decision, compare its impact with ta contrary result. If the SJC has said “yes”, then everyone would know, going forward, that their temporary orders would “count” against the duration of alimony. A disappointed recipient, in terms of amount, would become motivated to push the process expeditiously in hopes of achieving a higher sum after trial. A disappointed payor would know that even if he was overpaying during temporary orders, at least the clock was running on his obligation.

The SJC could have said that duration begins with temporary orders and if a judge concludes at trial that the preliminary orders were too high or low, adjustments could be made retrospectively. The fact is that final alimony orders are most commonly equal or relatively close to the temporary orders. The SJC could have reasoned that while the Alimony Reform Act does not mention the temporary alimony statute, the interim payments are simply a preliminary phase of general term alimony. This would have been consistent with the tax law definition of alimony and the legislature’s choice to define the length of marriage as ceremony to date of service of process, for general term alimony purposes. The old clock would stop and the new one would begin at the same, objectively determined moment.

Instead, Holmes will spawn new litigation over reducing duration, based on a four-part test that lawyers and clients will add to their litigation list:

  1. Was the case unusually long?
  2. Did the recipient delay resolution?
  3. Was the recipient’s delay unfair?
  4. Was the recipient’s unfair delay motivated to prolong alimony duration?

Each factor begs other questions such as: what is an unusually long case? When does due diligence become delay? What comprises unfairness in this context? What is the objective basis for determining intent?

Starting to see what the lawyers meant? As divorce mediators, we are comfortable that our cases are much shorter in duration as compared with litigation, but for those cases that must be tried, they just got a little bit harder and more complex.


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