The Massachusetts Supreme Judicial Court (SJC) recently encountered a fact pattern that only a law school professor could love. In all likelihood, the state legislature did not consider it while cobbling together the Alimony Reform Act (ARA). Then again, life happens; and sometimes we have to make it up on the fly! The SJC did, and got it right.
In Duff-Kareores v. Kareores, the couple modeled marital ambivalence. They married, had 2 children and divorced after 8 years, with a financial settlement that included periodic alimony. After 4 years of divorced living, they resumed cohabitation, albeit without the grace of marriage.
They looked like a family, acted like a family and encouraged the world to see them as one. Five and ½ years later, the reluctant divorcees re-married in 2012. Within 6 months, the wife filed for re-divorce.
This time the parties did not settle their case. Instead, they tried their case to a Middlesex Probate and Family Court judge, to whom fell the task of figuring out how to apply the M.G.L., ch. 208, §48 definition of marital length on these facts, since that, in turn, would dictate the maximum (and likely) length of resumed alimony under ARA.
Section 48 says that the length of marriage is defined by the number of months from marriage ceremony to the date of service of a divorce complaint, but also that:
“…the court may increase the length of marriage if there is evidence that the parties’ economic partnership began during their cohabitation period prior to marriage.”
(Our italics.) (We can’t resist asking: “How can a marriage be longer than its length?” It’s a bit like calling a 5’10” NBA point guard 6’ 3”. It happens, but he still can’t see over the defender.)
The concept is that for alimony purposes the court may treat a marriage as if it were longer, to account for pre-marital contribution and dependency formation purposes, and to give judges a way around durational limits. This exception (most ARA rules have exceptions) begun as a way to recognize same sex couples who formed families before they could legally marry, has spawned disputes for many modern marriages, where pre-marital home life is increasingly common.
The cohabitation in this case was wedged between divorce #1 and separation #2, so it qualified as “pre-marital”, as the judge ruled. But, he did not distinguish between the post-divorce cohabitation, and its preceding period, when the parties actually lived apart as a divorced family. A literal 6-month marriage, which should have been deemed 14-years (8 + 5½ + ½) – per the SJC - became an 18-year one, by decree.
The Husband appealed. Going for broke – or maybe trying to avoid it – he argued that both the 4-year separation post-divorce and the 5½-year pre-marital cohabitation should have been excluded, because he was really just a “renter” during the cohabitation period. It appears that he staked the latter claim, ironically, on the continuity of alimony payments, which the judge held less pertinent than the lack of a lease and rental payments. (He also appealed the inclusion of the first marriage as a period of pre-marital economic partnership during cohabitation, relative to the second marriage, which we will address in a subsequent blog.)
The SJC agreed about the unmarried separation period, because, the statute says nothing about economic partnerships while not cohabiting. But, what about the cohabitation period? Section 48 bestows the right to equitably pretend that a marriage is longer than it is, but, it gives no guidance on how to resolve to apply it factually.
That’s where the SJC rode to the rescue courtesy of “statutory construction” by resorting to the statute as a “whole”. The appellate court keyed on section 49(d), which has nothing to do with the length of marriages. Rather, it empowers judges to reduce, suspend or stop ongoing alimony in a modification context, when an alimony recipient has created a “common household” with another person for more than 3 months’ time, stated colloquially, for cohabitation. Concluding what legislators would have said, had they thought of it, the SJC concluded:
… that the Legislature intended to use the terms cohabitation, economic marital partnership and common household to describe a relationship that, if established, would affect a court order for alimony, either by increasing the amount and duration of alimony ordered or by reducing, suspending or eliminating the award.
There is no way of knowing what the legislature really meant, but the SJC’s version makes great sense. It plugs a legislative hole in a logical way, while making a confusing statute a bit more consistent; and the courts now have a list of criteria to consider the next time that family life challenges family law expectations.