Divorce Mediation Blog

Alimony Reform: One Year Later – Part 2

Wednesday, January 16, 2013

In our last entry, we explored some of the self-reflection in the legal community about the experience and leanings of Probate and Family Court judges in applying the new Massachusetts alimony laws, one year after enactment. We noted three apparent points of emerging consensus. Here, we discuss two areas of substantial disagreement among judges, which in turn limit lawyers and parties’ sense of predictability of result in court.

  1. The statute that became effective on March 1, 2012, requires that a judge either reduce, suspend or terminate alimony when the recipient has maintained a “common household” (called cohabitation) for more that three-month’s time. Before the ink on the act dried, lawyers were debating if a cohabitation that had begun before March 1, 2012 could form the basis for mandatory action by a judge after the effective date of the act; or if the common household had to begin post-March 1st to make action by the court mandatory. (The court has long had the right but not the obligation to alter an alimony obligation for a cohabitation that results in diminished need for alimony for decades.) It appears that the trial court judges are split on this, resulting in conflicting orders in different courts.
  2. The new statute mandates durational limits for what it calls “general term alimony” (that is, a maximum length of alimony payments based on the number of months of marriages of fewer than 20 years duration). The statute is silent about when the term of alimony begins: whether at the date of the divorce judgment, or at the earlier date of the start of “temporary orders” (court ordered support payments during the pendency of a divorce case, which can be one to many years in length). No consensus is apparent, which is not surprising given the statute’s lack of direction.
  3. It is the nature of complicated statutes that different judges will apply it differently. This does not reflect poorly on judges at all, but demonstrates their ability and willingness to think and to apply their own sense of reason to an unclear statutory mandate. In time, those areas will become clarified through what is called “case law”, or decisions by appellate courts based on people’s appeals from the Probate and Family Court. A statute as comprehensive and broadly used as this one, which is applied every single day in the Commonwealth, will take many years to interpret, to flesh out and to fully understand.

And, in all likelihood, the statute will be amended further by the legislature.

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