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Divorce Mediation Blog

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 5

Wednesday, December 13, 2017

“What’s a judge to do?”

Levine Dispute Resolution - Alimony

In this entry, we consider a particular challenge that the trial judge will have on remand from the Supreme Judicial Court (SJC) in Young v. Young, in grappling with her assessment of the wife’s “need” for alimony. The trial judge tried to quantify the wife’s “need” by the tangible costs thereof, a common means of doing so. But, it appears that the evidence thwarted the judge in doing so, as she bumped up against a too frequent phenomenon: incredible and incredibly rising expense claims on sequential Rule 401 financial statements during litigation.

During an 11-month span of the Young case, the wife’s claims of weekly expense rose a remarkable 44%, from $453,856 per year to $653,906!

We have seen this movie before, as lawyers, judge, special master and divorce arbitrator. While it is certainly challenging for parties to give dispositive expense information when Rule 410 requires a full statement within 45 days, or when a party files motions, just 10 days. Moreover, uncertainty about just what “need” means, can make presenting financial statement expense claims dicey for the preparer.

Yet, litigation strategy plays an undeniable role. And, strategy evolves..

As a result, the judge critically found that the wife lacked “…personal knowledge regarding her own expenses,” and that her financial statements were not “…an accurate reflection of her need.” The wife’s credibility shot, the judge avoided the quantification of need and, instead opted for an ill-fated percentage-of-income order.

So, where the judge simply disbelieved the wife, and where she did not, apparently, find other, more convincing evidence of the wife’s “need” in the trial record (presumably there was no expert “lifestyle” testimony, or none at least that the court found credible), how will she do so now, on remand?

Don’t bet against a Young v. Young II appellate case, when one of these spouses appeals the judgment after remand.

In our next entry, we will consider the role that financial complexity played in undermining the fate of the trial court decision.

 

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 1

Sunday, October 15, 2017

Levine Dispute Resolution - Alimony

With the long-awaited case Young v. Young, the Massachusetts Supreme Judicial Court (SJC) has revisited the important question of when may a trial court originate self-adjusting support orders, a subject that we have addressed here twice before. See, http://levinedisputeresolution.com/docs/Variable-Support-orders-3-28-16.pdf and http://levinedisputeresolution.com/divorce-mediation-blog/need-and-variable-support-orders-they-are-not-mutually-exclusive.

While the case does not address the situation where there is insufficient income to keep both parties living at the former marital standard of living, it does review and elaborate on existing precedent.

In a high income case of great executive compensation complexity, the trial court ordered the husband to pay to the wife a 1/3 share of all gross income that the husband receives going forward, rather than the fixed sum alimony that both parties sought, albeit in vastly different suggested amounts.

The core rulings of Young are neither complex nor novel on their face:

  1. Self-adjusting alimony orders are not per se prohibited, but they are to be limited to “special” though not necessarily “extraordinary” circumstances; and that
  2. Self-adjusting alimony orders that “intend” to elevate the recipient spouse’s standard of living above the marital station are prohibited

But, what does it all mean, really?

We will use Young as a jumping off point to address both its particular analysis and holdings, and to re-examine the curious case of variable support orders a/k/a self-adjusting support orders at large. We begin with just what is a variable support order and who uses them, then explore the analysis and implications of Young, and close (we think) with special problems in the area.

 

Civility Guidelines for Family Lawyers

Wednesday, August 16, 2017

The Massachusetts Bar Association recently endorsed a set of “Civility Guidelines for Family Law Attorneys”. It is amazing to us that in 2017 this project should have been necessary, but we have no doubt of it; and the ten points are both simple and profound.

Moreover, these tenets don’t just apply to the courtroom. They are equally applicable to the arbitration or mediation room, the four-way meeting, attorney correspondence, and the ongoing processing of every case, including negotiation. In truncated form the ten commandments of civility are:

  • Dress appropriately.
  • Be on time and prepared.
  • Treat people with courtesy and respect.
  • Wait your turn – don’t interrupt or shout.
  • Be honest – in verbal and written word.
  • Follow the rules (about notice and service)
  • Respond timely.
  • Focus on the facts in issue.
  • Negotiate in good faith after full disclosure.
  • Do not use court in a revengeful manner.

Sometimes the truest things shouldn’t have to be said – be bear reminder nonetheless.

 

The Goose, the Gander and the Alimony Reform Act

Wednesday, July 19, 2017

Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee.

In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, easy to imagine. Consider, for example, any pair of business people or professionals: their levels of success will vary over time, under any circumstances. With the ARA’s income comparison model - the presumed metric for general term alimony under M. G. L., ch. 208, §53(b) generally not exceeding 30-35% of the difference in the spouses’ respective earnings - the parties’ income capacities may not only fluctuate, but at some point, converge and intersect.

For example, at divorce, Leslie earns $90,000 per year while Morgan earns $60,000, it is predictable that Leslie would pay about $10,000 of alimony. (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) would deem it “reasonable and legal”). Yet, some years later, Morgan could easily be earning $120,000 while Leslie treads water at $90,000. Thus, the alimony shoe shifts feet, the law then presuming that Morgan should pay the same $10,000.

Assume now that Morgan and Leslie were married for 15 years. Under M.G.L., ch, 208, §49(b)(3), the presumed duration of alimony is 10 1/2 years. Assume further that the parties traded places 5 years after divorce. In a modification action, would Morgan’s durational limit be the “remaining” 5 1/2 years? Or, would Morgan begin her own 10 ½ year run? If they switched fortunes again (always presuming that someone has “need”), would Leslie resume her 10 ½ track at the point of first modification, or the second?

Alternatively, suppose that Leslie has paid alimony for 9.5 years, only to find herself laid off, and no longer employable at a comparable level. Or, worse yet, disabled. Morgan continues to be both healthy and happily employed. Is the newly vulnerable Leslie now limited to a year and half of alimony despite her straightened circumstances? Is she left to the vagaries of the court’s discretionary extension of the initial durational limit under M.G.L., ch. 208, § 53(e)(9)? Or, conversely, will that spouse now be eligible for period of up to 10 1/2 years as an alimony recipient himself?

Now, imagine that the parties never traded places organically. Leslie paid alimony shy of the 10 ½ year duration limit because she attained full social security retirement age after 10 years only, under M.G.L., ch. 208, §49(f). In fact, she retired. Meanwhile, the younger Morgan continues to work. Since the court cannot impute income to Leslie despite her voluntary retirement, is Morgan now on the hook for alimony? And, then, for how long? Is the duration limit 6 months, or is it re-set to reflect Morgan’s new status as payor? And since §49(f) precludes attributing income beyond full social security retirement age as a “reason to extend alimony”, does that prohibition hold if the retiree is now a recipient rather than the alimony source?

While we’re at it, what of M.G.L., ch. 53, §53(9)(g), which regulates alimony orders that commence subsequent to, or simultaneous with, child support? Where the statute limits alimony to the combined duration of alimony or child support available at the time of divorce, does that apply to one party as a payor, or to both?

As we write, we are unaware of any appellate precedent or any pending cases that will provide the answers to these questions. But rest assured, that even if they do, there are plenty of other questions in the pipeline.

 

“Judicial Restraint” an Interesting Bercume Redux in McClelland v. McClelland

Wednesday, June 21, 2017

Levine Dispute Resolution - Judicial Restraint

Two aspects of the a recent “unreported” decision of a Massachusetts Appels Court panel, are worthy of note, and provide important cautions to judges, family law arbitrators and drafters, alike.

  1. Judicial restraint. We don’t recall ever seeing this phrase about the divorce court’s exercise of broad discretion before. In McClelland v. McClelland, the parties provided in their separation agreement that the husband would pay 75% of the children’s secondary school expense. In a later modification action, they agreed that each parent would pay 1/3 of college costs.

    In a second modification, neither party sought review of either education term, focusing rather on periodic alimony and child support matters. The trial judge terminated alimony, increased child support (more below) and – on her own initiative - loaded the full college burden on the father.

    In reversing, the Appeals Court panel called this a “forceful case for judicial restraint”, cautioning judges against unravelling prior agreements reached by parties when no one is complaining about them.

    As divorce mediators, we certainly understand and support the concept that a court should not undo consensus where it exists (assuming no public policy problems). After all, client empowerment is our calling card.

    Yet, as a family law arbitrator and special master, and as a former judge, we also understand the trial judge’s temptation. After all, education costs are an adjunct to support; and one could easily see how a change in support as compelled by the evidence of changed circumstances, could render a previous college cost arrangement unfair or even untenable.

    It is tempting to think that a failure to address this reality will just beg a follow-on modification action to demand exactly what seems sensible to adjust, now.

    On balance, we think that the Appeals Court’s suggestion is sound. It is the judge’s job to decide pleaded controversies, not create them. If the new judgment does not make sense in the context of matters not pleaded, that does not make the court responsible for the collateral outcome, even if those matters that should have been pleaded. A good pre-trial conference, and with effective divorce mediation, should surface these issues, sometimes causing the parties to broaden their issue lens, and perhaps even amend pleadings. But once adjudication begins – as McClelland suggests - judicial restraint, in the form of fixing what is before the court, and not what should be there, is both prudent and proper.

  2. Parties’ Intent. The divorce agreement and judgment required the husband to pay 19% of his pre-tax income as alimony and 19% as child support. The judge in McClelland, terminated alimony but increased child support to 25% of the father’s gross pay.

    The Appeals Court supported the alimony ruling but vacated the child support, indicating that the judge’s writing did not evidence proper heed to the parties’ perceived intent that child support be limited, on its own merits, to 19%; and Bercume v. Bercume requires special care in trying to observe and make when possible defer to intent, even when the provision under review merged in the previous judgment.

    The Appeals Court remanded the case to the trial judge, simply ordering her to write additional findings in explanation of why respect for the parties’ apparent intent was overcome by other material changes of circumstance, necessitating a support change.

    Negotiators, divorce mediators and agreement drafters should take heed. Frequently, the parties strike support deals with the assumed comfort that a judge would have broad discretion to re-structure a support package to meet changed facts in the future; and that the initial structure, will not unduly hamper a modification judge, when the parties’ financial profile has substantially changed. This should not deter any one from careful and efficient support structuring, but as Huddleston and Bercume taught, the parties spell out their intent where they can.

    For example, a divorce agreement could say that: “The income percentages expressed in this provision meet the parties’ current needs, but the parties do not intend to limit or impair the court’s discretion to modify support in accordance with circumstances existing at the time of any future modification judgment.”

    The law of unintended consequences can hurt a lot, and at other times, it can be a gift. There is a time for strategic ambiguity, but only when it is itself intended. Careful drafting that spells out intent and does not leave it to later inference, or even speculation, from the bench, when someone’s ox will be gored.

    Just ask poor old Dr. Huddleston.

 

Just What is a “New Legal Consequence”?

Wednesday, June 07, 2017

Not a Shifting Alimony Presumption, under Van Ardsdale v. Van Ardsdale

Levine Dispute Resolution - Alimony

The crux of the Massachusetts Supreme Judicial Court’s (SJC) recent Van Ardsdale v. Van Ardsdale, is that the retroactive effect of durational limits under the Alimony Reform Act (eff. 3.1.12) (ARA) is constitutional because the imposition of these constraints is “merely” presumptive and, therefore, do not “attach new legal consequences to events completed before its enactment”.

We do not question precedent. While its comparison of a sex offender’s right to contest registration requirement for adjudications that occurred before the registry legislation, in Doe, Sex Offender Registry Bd. 3839 v. Sex Offender Registry Bd., to alimony recipients’ right to seek deviation from the “presumed” durational limits is cringe-worthy, we get the analysis. Because the sex offender and the alimony payee both have some chance of eluding the impact of new legislation, the former by an appeal to the Board, and the latter by an “interests of justice” court deviation from alimony termination, the individual’s jeopardy is not foregone; therefore, it does not rise to the level of a “new legal consequence”.

Presumptions, the SJC reasons, are “simply rules of evidence”.

But, sometimes good legal analysis defies reality, or at least practicality.

Before ARA, the burden of proving changed circumstances to justify the termination of alimony sat squarely on the shoulders of the payor. Retirement? Just one circumstance to consider. Income loss? Well, maybe, but just how did that happen, anyway. Cohabitation of the recipient? Forgettaboutit.

Now, the burden falls just as squarely the recipient, as the secondary holding Van Ardsdale, and the same day’s Popp v. Popp, demonstrate. It is a small sample to be sure, but the appellate scoreboard on reported cases for alimony payees seeking to extend alimony beyond “presumed” time limits is 0-2. In many cases, the answer will be the same for recipients as it used to be for obligors whose alimony check supported the household of not only the ex- spouse, but a new “friend” as well.

We are not at all criticizing that this burden shift has occurred. That is a policy question, and one properly reserved to the legislature. The old alimony system was, in many respects, out of control.

But, calling a major burden shift as a mere rule of evidence trivializes a very real and substantive change in our statutory law. And, it denies the everyday experience of litigants and their counsel, many of whom will not sue for alimony extensions, because presumptions are meant to be hard to overcome. And, expensive. And, risky.

 

The Massachusetts Appeals Court Relies on Baccanti v. Morton, in Tapping Option Income for Alimony, in Ludwig v. Lamee-Ludwig: A Fresh Look at Baccanti

Wednesday, March 01, 2017

The Appeals Court’s recent Ludwig v. Lamee-Ludwig approaches the intersection of unvested stock options and double counting, colloquially known as “double dipping”, in divorce litigation. Relying on the Supreme Judicial Court’s (SJC) Bacanti v. Morton, they got it right. But, was the SJC precedent correctly decided? It is worth revisiting.

In Baccanti, the SJC addressed the question of unvested stock options at divorce, concluding that options granted during marriage but to be vested thereafter “may” be treated as marital property by the trial court. As we have discussed here before, “may” is plainly a word that grants discretion, meaning that the grantee is permitted, but not compelled, to do something. Think: “Do it if you think it appropriate, but don’t, if not.”

By contrast, and while there is some case law to the contrary, common usage of “shall” imposes an obligation – and if it does not, there are a whole lot of temporary orders, separation agreements and judgments out there that don’t say what they mean, or mean what they say! Think: “Do it.”

This common-sense distinction is highlighted when the words “may” and “shall” inhabit the same sentence. M.G.L., ch. 208, §34, upon which the Baccanti ruling relied, reads:

    “…the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and non-vested benefits…and which shall include, but not be limited to, retirement benefits, … pension, profit-sharing, annuity, deferred compensation and insurance.” (As quoted by the SJC; bold italics ours.)

Thus, as we read it, §34 requires (“Do it”) the trial court to include the enumerated, but unlimited, forms of compensation or other benefits within the marital estate, but it permits (“Do it if/how you think it appropriate”) the trial judge to assign them between the parties as she sees fit. Why would the statute drafters have used two different modal verbs in the same sentence, if they were not to connote different meanings?

Yet, the Baccanti court equated the two by concluding that the trial court may include unvested options in the marital estate. May = shall. Think: judicial amendment.

None of this made much practical difference in 2001, as Baccanti took hold in asset divisions. After all, the SJC’s “time rule” sensibly divided granted but not yet vested options in a way that distinguished between those that were tightly related to the marital enterprise during which both parties contributed, from those for which the connection to mutual marital efforts was diluted by the passage of post-divorce time. Who cared if the time formula technically excluded some options from the estate, or if it simply assigned them disproportionately between the spouses because of the declining nexus with marital efforts?

Now, it matters, the intangible becoming material, with unvested options ripening into disposable cash.

The central holding of Ludwig is that the income generated by the post-divorce exercise of stock options granted during marriage, but excluded from marital property at divorce by application of Baccanti, may be tapped for payment of alimony (and, perforce, child support) because it does not constitute a double counting, let alone one that may be reversibly inequitable. (The law does not bar double dipping per se, but only if it is deemed inequitable.) The SJC obliquely suggests that alimony exposure for income arising from later vested options that were deemed to be marital property at divorce, presents a more compelling case of double counting.

The Baccanti holding made Ludwig an easy case for the Appeals Court to decide. But, had the higher court stuck to statutory interpretation in 2001, rather than effective revision, the current case might, and we think should, have been more challenging.

[The Appeals Court easily dispatched the argument that inclusion of the unvested option-derived income was precluded by M.G.L., ch. 208, §53(b)(1), by holding the legislature to its precise words. Those drafters exempted certain income derived from assets assigned under §34, for income calculation purposes, listing interest, dividends and capital gains only, without any indication these were mere examples; and income produced by options is none of the above. We infer (but do not know) that the drafters just did not consider the particular wrinkle.]

 

Three Important Factors Converge With Unusual Clarity in the Appeals Court’s Heystek v. Duncan

Wednesday, January 18, 2017

Sometimes, a Massachusetts Appeals Court Rule 1:28 Memorandum and Order (a/k/a “unpublished opinion”) addresses an issue or cluster of issues that make it noteworthy, despite its paucity of detail and lack of formal precedential value. The Appeals Court’s Heystek v. Duncan is one of those cases, tackling 3 significant issues in understated but significant ways:

  1. The factor future opportunities in property division;
  2. Illiquidity as a factor of equitable distribution; and
  3. Intent in automatic restraining order violations.

Future Opportunities

A phrase search for M.G.L., ch. 208, §34’s “opportunities… for future acquisition of income and assets” in a data base will turn up many Massachusetts cases. But, they predominantly concern exclusion of trust interests as divisible marital assets, relegating them as “mere expectancies” that the court may nonetheless consider as a future economic opportunity.

Rare, however, is the appellate discussion of how strongly the trial court should weigh it, a topic approached part way, at least, by Heystek v. Duncan, a case in which the Appeals Court emphasized that with an established course of gifting from the husband’s mother, while not an enforceable right:

    …the foundational reality of the of the parties’ financial circumstances throughout their marriage was that their life-style relied to a significant degree on a fairly steady stream of such largess, and it would ignore that reality to anticipate that the husband would not continue to benefit from similar generosity following dissolution of the marriage. 

While in litigation, and in divorce mediation, we see the issue surface regularly, the focus and clarity of the statement is significant for its strength. The lack of factual detail limits the direct impact of the case on future deliberations, but one may certainly expect to see this kind of persuasive characterization in other cases.

Illiquidity

As a practical matter, the relative liquidity of asset distributions is a part of most divorce negotiations when there are diverse assets to divide. Most frequently, it arises in three contexts: closely held businesses, wherein disposable cash is scarce from which to fund a payout to the non-owner; cases in which a primary residence is the predominant asset; and where retirement funds present qualification, penalty and age/timing challenges. But, we recall few cases that broadly present illiquidity as an indicator of comparative “economically straitened circumstances". This window into the appellate panel’s thinking reflects a sophisticated view of family economics that is refreshing.

Rule 411

Supplemental Probate Court Rule 411, the so-called automatic restraining order, has precious little case law development. In Heytek v. Duncan, the wife removed $40,000 from the marital estate without the benefit of an authorizing order,or agreement. Nor could she excuse the withdrawal as a permitted usage (legal fees, business expense or investment cost), under the rule’s parameters. The husband sought enforcement by civil contempt and, in defense, wife argued that she did not intend to violate the order.

Finding no requirement of intent in a civil enforcement action, the Appeals Court upheld the trial judge’s contempt adjudication. With the order deemed unequivocal and the violation undoubted, the judge and the Appeals Court deemed wife's state of mind immaterial. While this unpublished opinion is not precedent, it surely is a warning shot to those who pay too little heed to the automatic restraining order, including counsel.

 

A Prenup Head Shaker from the Appeals Court: Stacy v. Stacy

Wednesday, January 04, 2017

In a Rule 1:28 Memorandum and Order, a panel of the Massachusetts Appeals Court ruled that a pre-marital agreement applied to the death of a spouse, based on contract language that described its scope. Here is that term, fully as reported in the opinion, but broken down by clause:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G.L., c. 208, §34, as amended, in the event of divorce.

Yet, here is how the Appeals Court must have read it:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters[.]

    [ ]

    [ ]

The appellate panel tossed out two of the three clauses, which spoke only of divorce, consigned as surplusage, unworthy of consideration, despite the “agreement’s caption referring to G.L., c. 208, §34”, the divorce property division statute.

Now,, let’s cast the provision in the way that is consistent with the maxim that words in a contract are to be accorded meaning within customary everyday usage, with the law of pre-marital agreements that requires that waivers be explicit and the highly probable intent of the parties:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, in the event of divorce [,] including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G.L., c. 208, §34, as amended[.]

Do you think that the parties’ might have used the word “death” somewhere, if they intended to cover that contingency? Or “estate”? Bequest”? Maybe, “inheritance”? Even “survivor”?

The result is that a widow, with no hint of pending divorce, or even marital strain, must now answer to her sister-in-law (the estate’s personal representative) for “several furnishings and personal belongings” that she removed from her marital home, in part, for alleged violation of a premarital agreement that was to all appearances, extinguished by her husband’s death.

We have no quarrel with the Appeals Court remand on the grounds that a violation of G. L. c. 190B, § 3-709 may have occurred, or that the alleged facts were also sufficient to state claims of a conversion, an unjust enrichment, and a constructive trust. But the Appeals Court is makes unnecessary mischief by inferring intent that doesn’t appear in, or even between the lines of, the contract.

 

Woulda, Coulda, Shoulda? Not So Much (The SJC weighs in with “interests of justice” alimony guidance) George v. George

Wednesday, December 21, 2016

[Note: This blog is corrected to eliminate what we conclude was mistaken in our previous observation that the Supreme Judicial Court had incorrectly stated that the standard of proof for extending alimony beyond its durational limit is the “preponderance of the evidence”. Since this is only a blog, we can correct our errors with the stroke of the keyboard, so we do! We apologize to you, and thank our friend David Lee for pointing this out to us.]

The Massachusetts Supreme Judicial Court (SJC) recently waded into the murky waters of durational alimony limits under the Alimony Reform Act (eff. 3.1.12) in George v. George, upholding the trial court’s denial of relief to an alimony payor on technical grounds, but:

    …utiliz[ing] this opportunity to set forth guidance for how the “interests of justice” standard of [M.G.L., ch. 208] §49(b) should be applied when determining whether deviating beyond the durational limits of the act is warranted.

Which they did – sorta.

First, the SJC rejected the inevitable argument in modification of pre-ARA judgments – that alimony recipients who negotiated equal property divisions at a time when case law generally precluded courts from restricting the length of alimony, when faced with newly enacted durational limits, would equitably argue that had they known that alimony would not continue indefinitely, they would have asked for more property.

The SJC understandably reasoned that the trial judge's acceptance of that argument was not only based on speculation, but if allowed to stand, it would negate the retrospective effect of durational limits for pre-ARA judgments, inconsistently with the statute, and its own precedents. Hence, our title.

The SJC then stated that:

    Further, a judge should evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce. As a logical example, the justices posited that if the recipient were disabled at the time of the initial alimony award, the trial court may consider the current level of disability, as that may impact on present needs.

Then, the murky got just a little bit murkier. The SJC noted the trial court's broad discretion in setting alimony, but also set out the specific text of M.G.L., ch. 208, §53(e), with 8 specific criteria that a court may consider when initially ordering, or modifying alimony, plus the 9th innominate “anything else relevant" factor.

Unfortunately, the SJC deviated from statutory text, again, by replacing the legislature’s suggestion that the trial court "may" consider the §53(e) factors, with "here, the appropriate statutory factors to be considered are…” (italics ours), curiously passive, but a mandate nonetheless. In turn, this creates a bizarre anomaly, in relation to factor # 6, which requires, by the SJC’s lights, that the court weigh:

    … significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining length of the marriage; …

Mischievous minds wonder if the trial court's initial determination of the length of the marriage, and hence the durational limit itself, is up for redetermination at the time of potential extension? At a different time, in a different place by a different judge? Does this mean that a party who did not raise significant premarital cohabitation as an issue at the time of divorce is not precluded from raising it at the time of requested extension? Is the issue ever precluded?

All the result a not-too-careful, and unfortunate, shift of statutory language.

 



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