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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.

And:

    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



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