Divorce Mediation Blog

“[T]he Parties Proceed at Their Own Risk” in the Probate and Family Court: Smith v. Smith

Wednesday, June 27, 2018

Levine Dispute Resolution - Alimony

For decades, Massachusetts divorce lawyers have advised their clients that if they depart from their divorce judgment obligations informally, and don’t incorporate their new deal in a modification order or judgment, they cannot rely on their consensus alone if one of the party decides to enforce the divorce orders that still exist, in court. The Appeals Court now says that we have all been wrong, with the blazingly ironic “... the parties proceed at their own risk.”

In a court system and body of law with judicial discretion that sometimes takes the breath away, life just became even less predictable. As did advising clients.

In Smith v. Smith, the husband accumulated $87,400.00 of alimony arrearages but claimed that he did so with the wife’s advance agreement, sometimes in return for his taking on voluntary financial burdens for emancipated children. The wife eventually thought better of her purported compromises, and she sued. The Probate and Family Court judge bought the husband’s claim that he relied on the wife’s prior agreements to his detriment, rejecting the wife’s claim of coercion, and wiping out the husband’s arrearages.

For reasons not addressed in this entry, the Appeals Court reversed the Probate Court’s retroactive reduction of the husband’s alimony, but it upheld that trial judge’s ruling of non-contempt, because the wife’s consent precluded a finding that the husband’s violation of the alimony orders was “undoubted”. So much for the previously given truth that only the court can modify its own orders.

In support, the Appeals Court cited its own Wooters v.Wooters, a case in which the husband was relieved of a contempt finding, while the established an alimony arrearage nonetheless, because of a bona fide dispute about the meaning of the alimony order: did a divorce judgment that ordered a lawyer to pay his wife a third of his compensation apply to a stock option income, that didn’t exist at the time of divorce, but arose later, when the husband left law practice for a corporate job.

Readers can reasonably debate the Appeals Court’s conclusion in Wooters, but what does a legal dispute over the meaning of the previous order have to do with the Smith judgment, with orders of unquestioned meaning? In fairness, the Appeals Court’s citation was limited to the principle that an arrearage (they even called it a “violation”) need not compel a finding of contempt. Wooters to Smith is, at best, a non sequitor.

An important principle was at stake, here. Either parties can or cannot supplant the court’s authority by their own behavior. If they do, the violation cannot be doubted. The question, really should be “can it be excused?

The answer to the real question now appears to be a resounding “maybe”, as in “maybe they can”. In a field where lawyers struggle to give clear and assured advice, life just became more, rather than less, uncertain.

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

Delivered by FeedBurner

other articles

recent posts


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