Divorce Mediation Blog

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.


Massachusetts Alimony: Watching the Pot - Part 1

Wednesday, April 10, 2013

The number one preoccupation among Massachusetts divorce lawyers this year is trying to figure out how the appellate courts will construe many of the complex and interactive features of the year old comprehensive alimony “reform” statute. They hope that once this appellate pot boils, “guidance” will flow that will, in turn, give lawyers some sounder basis for predicting how trial judges’ discretion will be bounded and exercised in the future.

There are many uncertainties in the statutes, such as:

  1. How should judges apply their deviation authority to avoid alimony termination when very long marriages bump up against payors’ retirement age in an economic environment where people are working long past “retirement age”?
  2. Where judges perceive that new alimony cut-offs are unfair, how freely should they approach unequal property allocations as a form of compensation?
  3. Should judges “count” the time of temporary alimony orders towards calculated durational limits?
  4. Are judges expected to calculate alimony or child support first?

Will the cases come down in a trickle or a rush? Will the Supreme Judicial Court pre-empt the Appeals Court? Will the decisions be narrowly crafted, allowing for slow and thoughtful development; or will we see broader and a more rambling style of statutory construction? Will the “unreported”, or so-called “128” decisions of the Appeals Court have any coherence at all?

This important and fraught process will only start this year. Will it help or hurt? In our next two blog entries, we will think about this from two perspectives: that of a divorce mediator, and as a divorce arbitrator.


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