Divorce Mediation Blog

Lump Sum Alimony Enforceable after Remarriage: Becker v. Phelps But Does Keller v. O’Brien Live Still?!

Wednesday, October 15, 2014

In the recent case, Becker v. Phelps, the Massachusetts Appeals upheld Judge Dorothy Gibson of the Middlesex Probate and Family Court in enforcing the second of two $500,000.00 payments, which was due under a divorce agreement. The payor-wife sought to terminate the payment obligation because the Husband had married again, arguing that the Alimony Reform Act barred the payment post-remarriage, despite the fact that the alimony terms both survived, and did not provide for any termination whatever.

Undoubtedly, the judge and the reviewing court ruled consistently with the parties’ mutual intent as expressed in agreement language cited in the case: if the parties had intended a remarriage cut-off, they would undoubtedly have said so; and the wife’s attack appears opportunistic, at best. The courts correctly stopped her in her legal tracks.

That said, while coming to the right result, the Appeals Court chose to wink at inconsistent language in the divorce agreement, and in so doing, created its own internal conflict. Specifically, the opinion states that: “In their agreement, the parties denominated the lump sum payments in question here not as “alimony,” but as payments made as consideration for the husband’s “waiver of periodic alimony.”” Yet, in footnote 2, the court set out the parties’ own contract language: “In consideration of the Husband’s waiver of periodic alimony…the Wife shall pay [two $500,000.00 payments by dates certain], as non-taxable alimony to the Husband…” (our bolded italics).

Lost in translation: the decision is right not because the payments were not alimony, but because the lump sums were clearly intended to be a permanent alimony “buy-out”, and as such not subject to termination in a surviving agreement absent specific terms that provided therefor. End of story?

Well, maybe not. In cringe-worthy dictum, the Appeals Court revived the SJC’s 1995 Keller v. O’Brien, which we had all thought consigned to the legal dustbin by the Alimony Reform Act, if not previously by Justice Marshall’s SJC opinion in Cohan v. Feuer (2004). For reasons that we cannot fathom, the Appeals Court found it necessary to opine that the new law is not a “direct contradiction of the holding in Keller v. O’Brien…”, suggesting that there may still be circumstances in which an ex-spouse is required to pay alimony to a remarried former spouse without having agreed to do so. Really?

We have focused before on alimony case law that includes concepts that are unnecessary to resolve the issue at hand, and expressed concern that intended consequences are often spawned by over-reach. Keller v. O’Brien was neither germane to Becker, nor likely indicative of any policy that the legislature intended here.

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

Delivered by FeedBurner

other articles

recent posts


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