781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

S.J.C. To Alimony Payors: No Credit for Time Served

Wednesday, April 16, 2014

Finally, the first precedential appellate case on the Massachusetts Alimony Reform Act (eff. 3/1/12) has emerged under the name of Holmes v. Holmes (April 2, 2014). The issue addressed is whether or not the payor of alimony under “temporary orders” of the court (payments by agreement or judge-made decision during the pendency of a divorce case) is entitled to “credit” for those payments against what the Massachusetts Supreme Judicial Court (SJC) has now named “maximum presumptive duration” of general term alimony. The answer is “no”.

In reaching this conclusion, the court reasoned that temporary alimony orders arise from a different statute altogether (M.G.L., chapter 208, section 17) and that the context of the new statute is fully about divorce and modification judgments. The SJC emphasized the maximum in the presumption of duration and left it to Probate Court judges to consider case-by-case whether the matter was “unusually long” or “unfairly delayed… [by the alimony recipient] in an attempt to prolong the payment of alimony…”

Lawyers joked when the new alimony law became public that it was the “lawyer’s full employment act”. This first “reported” case support’s the bar’s prediction.

While we do not quarrel with the legal analysis of the decision, compare its impact with ta contrary result. If the SJC has said “yes”, then everyone would know, going forward, that their temporary orders would “count” against the duration of alimony. A disappointed recipient, in terms of amount, would become motivated to push the process expeditiously in hopes of achieving a higher sum after trial. A disappointed payor would know that even if he was overpaying during temporary orders, at least the clock was running on his obligation.

The SJC could have said that duration begins with temporary orders and if a judge concludes at trial that the preliminary orders were too high or low, adjustments could be made retrospectively. The fact is that final alimony orders are most commonly equal or relatively close to the temporary orders. The SJC could have reasoned that while the Alimony Reform Act does not mention the temporary alimony statute, the interim payments are simply a preliminary phase of general term alimony. This would have been consistent with the tax law definition of alimony and the legislature’s choice to define the length of marriage as ceremony to date of service of process, for general term alimony purposes. The old clock would stop and the new one would begin at the same, objectively determined moment.

Instead, Holmes will spawn new litigation over reducing duration, based on a four-part test that lawyers and clients will add to their litigation list:

  1. Was the case unusually long?
  2. Did the recipient delay resolution?
  3. Was the recipient’s delay unfair?
  4. Was the recipient’s unfair delay motivated to prolong alimony duration?

Each factor begs other questions such as: what is an unusually long case? When does due diligence become delay? What comprises unfairness in this context? What is the objective basis for determining intent?

Starting to see what the lawyers meant? As divorce mediators, we are comfortable that our cases are much shorter in duration as compared with litigation, but for those cases that must be tried, they just got a little bit harder and more complex.



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



Delivered by FeedBurner

other articles


recent posts


tags

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