Divorce Mediation Blog

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? Forget about it.

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.

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


Levine Dispute Resolution Center LLC family law mediation Massachusetts alimony and child support child support resolve disputes arbitration Matrimonial Arbitration Obamacare COLA divorced special master family law divorce judgment support orders fraud lawyer divorce arbitrators Baseball conciliation mediator med-arb Levine Dispute Resolution Center divorce agreement mediation health insurance family law arbitrators Levine Dispute Resolutions divorce mediation Massachusetts alimony Boston separation Massachusetts divorce mediators Massachusetts Alimony Reform Act divorce arbitrator arbitrators litigation LDRC divorce mediator traditional negotiations family support pre-ARA alimony high-risk methodology divorce and family law mediators alimony statute med/arb annulment Act Reforming Alimony in the Commonwealth divorce mediators Massachusetts Lawyers Weekly Baseball Arbitration self-adjusting alimony SJC Chouteau Levine lawyers Self-adjusting alimony orders health coverage Divorce disputes Defense of Marriage Act Child Support Guidelines lawyer-attended mediation divorce lawyers family and probate law disputes Family Law Arbitration General term alimony rehabilitative alimony alimony orders facilitated negotiations Cohabitation divorce litigation alimony law private dispute resolution arbitrator MLB labor agreement alimony reform legislation divorce process divorce mediations Massachusetts lawyers IRC §2704 Baseball Players mediators divorce and family law Major League Baseball Arbitration family mediation Alimony Reform Act how baseball arbitration works alimony Massachusetts Massachusetts divorce lawyers DOMA dispute resolution family law arbitrator divorce arbitration Levine Dispute Resolution The Seven Sins of Alimony Uniform Arbitration Act Same Sex Marriage mediations Divorce Agreements medical benefits