Divorce Mediation Blog

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 7

Wednesday, January 10, 2018

“Is ‘need’ a floor or a ceiling?”

Levine Dispute Resolution - Alimony

This question does not rise from historic alimony law, which has long rested on the axiom that alimony exists to meet a recipient’s “needs”, as measured by the marital living standard.

But, the Alimony Reform Act (ARA) (eff. 3.1.12) created the question with its M.G.L., ch. 208, § 53(b), stating that general term alimony

    …should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes…” (Italics ours)

Since the lawmakers did not specify “the greater of” or “the lesser of”, judges and lawyers (and we, in earlier blog entries) have been left to speculate about whether “need” functions as a “floor” for support.

Since the appellate courts have now branded 53(b) as the range a “reasonable and lawful order”, this question was critical.

Where the payor’s income capacity is more than sufficient to meet the recipient’s “need”, should the latter enjoy “upside” alimony, even if that raises him or her above the marital station? Or, does the marital living standard cap the payor’s exposure?

We have consistently suspected the latter, and we have said so during many conciliation cases, since we did not believe that the legislature intended to upend the time-honored linkage to need. If anything, the ARA signaled a reining in of alimony, not its expansion. But given the vagaries our appellate courts, we braced for another surprise.

It didn’t happen.

The SJC spoke plainly:

    Here, the percentage-based award ran afoul of the act and therefore was an abuse of discretion not because of its variable nature but because it was intended to award the wife and amount of alimony that exceeds her need to maintain this lifestyle she enjoyed during the marriage. (Italics ours)

Now, we know for sure: “need”, in the law, is a ceiling.


Honest Abe Does It Again: Words to Practice (And Live) By

Thursday, January 02, 2014

Just when you think you've heard everything about Abraham Lincoln to inspire and admire, along comes another. At the recent 5th Annual ADR Conference (M.C.L.E.), attendees received a handout from Hon. Dennis J. Curran and Emma Kingdon called "Abraham Lincoln and ADR". At the front end of this fascinating little synopsis about Pres. Lincoln's legal career, appeared the following:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, expenses, and waste of time. As a peacemaker lawyer has a superior opportunity of being a good man. There will still be business enough."

Abraham Lincoln (1850); Notes for a Law Lecture, in 2 ROY P. BASLER, COLLECTED WORKS OF ABRAHAM LINCLON, 81 (Rutgers Univ. Press 1953).

Every lawyer should read Judge Curran and Ms. Kingdon’s little gem, and every person who participates in mediation, conciliation, arbitration and principled negotiation should, too. They will find it self-affirming, in some cases perhaps self-correcting.

Mostly, the man could sure speak.


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