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


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