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Divorce Mediation Blog

GOP Plan to End Alimony Deductibility: Time to reform the Alimony Reform Act?

Monday, November 20, 2017

Levine Dispute Resolution - Alimony

The House GOP seems to think that repealing §215 of the Internal Revenue Code is a good idea. We have long believed that there are probably too many alimony-paying lawyers in Congress to let this day ever come. It probably won’t, but if it does, it will plunge the Alimony Reform Act (ARA) (eff. 3.1.12) into crisis. Either way, the legislature needs to respond.

M.G.L., ch. 208, §48 defines “alimony” as: “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order”. Nothing about tax impact. The drafters, like us, clearly took deductibility under federal and state law for granted.

Moreover, M.G.L., ch. 208, §53(b) defines a “reasonable and lawful” presumptive formulation for general term alimony, stating the general term alimony should generally not exceed the recipient needs, or 30-35% of the difference between the parties’ applicable gross incomes.

This statutory range makes the same once-safe assumption: that IRC §215 allows parties to leverage dollars to the family’s benefit, by shifting income tax from a higher progressive tax rate of the payor, to the payee’s lower rate.

If the alimony deduction dies, it will take the viability of §53(b) along with it. Yet, the zombie statute will persist, entitling litigants to rely on it, despite its infirmity; unless and until the state legislature takes corrective action. This will not happen overnight – these things never do – and in the meantime… Sophisticated divorce agreements have “savings” clauses, which help people adjust alimony sums in the unlikely event of a deductibility repeal, and the GOP plan grandparents existing judgments, at least until modification. But modification cases and new divorces won’t get off so easy.

Maybe, the legislature should take the GOP proposal as a warning shot, at least. The legislature could act pre-emptively. Sections 48 and 53(b) at least need reformulation, regardless of Congress’ ultimate action. We should convert the assumption of the tax-shifting leverage of continued deductibility for alimony into a clear predicate for the ARA, with provisions to address the alternative.

And, if the unthinkable happens, it’s better get started now.

 

The Goose, the Gander and the Alimony Reform Act

Wednesday, July 19, 2017

Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee.

In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, easy to imagine. Consider, for example, any pair of business people or professionals: their levels of success will vary over time, under any circumstances. With the ARA’s income comparison model - the presumed metric for general term alimony under M. G. L., ch. 208, §53(b) generally not exceeding 30-35% of the difference in the spouses’ respective earnings - the parties’ income capacities may not only fluctuate, but at some point, converge and intersect.

For example, at divorce, Leslie earns $90,000 per year while Morgan earns $60,000, it is predictable that Leslie would pay about $10,000 of alimony. (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) would deem it “reasonable and legal”). Yet, some years later, Morgan could easily be earning $120,000 while Leslie treads water at $90,000. Thus, the alimony shoe shifts feet, the law then presuming that Morgan should pay the same $10,000.

Assume now that Morgan and Leslie were married for 15 years. Under M.G.L., ch, 208, §49(b)(3), the presumed duration of alimony is 10 1/2 years. Assume further that the parties traded places 5 years after divorce. In a modification action, would Morgan’s durational limit be the “remaining” 5 1/2 years? Or, would Morgan begin her own 10 ½ year run? If they switched fortunes again (always presuming that someone has “need”), would Leslie resume her 10 ½ track at the point of first modification, or the second?

Alternatively, suppose that Leslie has paid alimony for 9.5 years, only to find herself laid off, and no longer employable at a comparable level. Or, worse yet, disabled. Morgan continues to be both healthy and happily employed. Is the newly vulnerable Leslie now limited to a year and half of alimony despite her straightened circumstances? Is she left to the vagaries of the court’s discretionary extension of the initial durational limit under M.G.L., ch. 208, § 53(e)(9)? Or, conversely, will that spouse now be eligible for period of up to 10 1/2 years as an alimony recipient himself?

Now, imagine that the parties never traded places organically. Leslie paid alimony shy of the 10 ½ year duration limit because she attained full social security retirement age after 10 years only, under M.G.L., ch. 208, §49(f). In fact, she retired. Meanwhile, the younger Morgan continues to work. Since the court cannot impute income to Leslie despite her voluntary retirement, is Morgan now on the hook for alimony? And, then, for how long? Is the duration limit 6 months, or is it re-set to reflect Morgan’s new status as payor? And since §49(f) precludes attributing income beyond full social security retirement age as a “reason to extend alimony”, does that prohibition hold if the retiree is now a recipient rather than the alimony source?

While we’re at it, what of M.G.L., ch. 53, §53(9)(g), which regulates alimony orders that commence subsequent to, or simultaneous with, child support? Where the statute limits alimony to the combined duration of alimony or child support available at the time of divorce, does that apply to one party as a payor, or to both?

As we write, we are unaware of any appellate precedent or any pending cases that will provide the answers to these questions. But rest assured, that even if they do, there are plenty of other questions in the pipeline.

 

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.

 

“Self-Modifying” Divorce Judgments: The Appeals Court Feels Strongly Both Ways. Hassey v. Hassey, Part One

Tuesday, August 05, 2014

In the recent case of Hassey v. Hassey, the Appeals Court reversed Judge Jeffrey A. Abber of the Essex Probate and Family Court, in part, for ordering alimony as a percentage of the husband’s ongoing income, rather than as a flat sum. They justices ruled that the judge had pre-decreed a modification of his own judgment based on facts and circumstances that had not yet changed. Thus, they reasoned, he deprived the husband of the right to resist such a change based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.

This part of the decision was not surprising. The principle enunciated arises from long-standing precedent, with only 2 previous reported and relatively narrow appellate exceptions. Yet, curiously, the Appeals Court did not vacate that part of the judgment that determined that alimony shall terminate upon the wife’s cohabitation. Before the Alimony Reform Act of 2011 (eff. 3.1.12), this provision would have been absolutely contrary to law. Now, cohabitation is a statutorily recognized basis for change.

But the statute does not dictate the kind or extent of change. The law provides that if cohabitation occurs within the definition provided in the act, then the court shall do something. However, it requires the modifying judge to calibrate the remedy to the circumstances that exist at the time of the cohabitation. A judge may reduce, suspend or terminate alimony. So, when the Hassey judgment decreed that the wife’s cohabitation would automatically terminate alimony, the wife was denied the right, assured by the Alimony Reform Act, to resist termination based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.

Did the wife fail to perfect this as an issue on appeal, relieving the court of an obligation to address it? We cannot know from the text of the decision. Without doubt, though, the decision is inconsistent, and the cause of consistency and predictability, its victim.

Next: Needs versus 30-35% in Section 53(b): In Its First Foray, Has the Appeals Court Legislated? Hassey v. Hassey, Part Two

 

If It Looks Like a Duck: Might Just as Well Get Married

Wednesday, May 07, 2014

It looks like the days of the cohabitation dividend may be numbered.

As anyone who cares, knows, M.G.L., chapter 208, section 49(d)(2) (eff. 3/1/12), directs that a probate and family court judge shall reduce, suspend or terminate alimony when the recipient is shown to have cohabited (as defined) for more than three months. And, the courts have been busy hearing requests to do exactly that regularly ever since.

A hot controversy over section 49(d)(2) is whether the enactment of the new law was itself a change of circumstances that would allow the court to act, in a case where the cohabitation pre-dated the new law, or if the alimony payor would only have access to relief if he or she could show a substantial change of financial circumstances since the court’s last judgment in the case, be it a divorce or a modification. Lawyers have debated this issue, including in this blog. (See, Maureen McBrien’s “Impact of Cohabitation Under Alimony Reform Act”, May 2, 2012; and David Lee’s “Counterpoint re: Alimony Reform and Cohabitation”, July 10, 2012.)

One judge recently decided the issue for the parties in Schwartz v. Schwartz, Middlesex Probate and Family Court Docket No. 03D 2715. Judge Edward F. Donnelly concluded that the new alimony statute was itself sufficient to justify alimony termination, and he did just that. Critically, the request under Section 49(d)(2) concerned an established cohabitation that Judge Donnelly saw as tantamount to marriage; and the relationship existed in that form before a previous modification judgment between the parties. Financial circumstances had not substantially changed since the last judgment; the common household circumstances had not changed either; and the only material change was enactment of the statute.

In his rationale, the judge observed that:

    It does not make sense that the husband is penalized because of a modification judgment which entered almost two years prior to the enactment of the alimony reform act. To require the husband to show a change of circumstances independent of the statute would render the language of G.L.208, [s.] 49(d), which requires that the court terminate, modify or suspend alimony upon cohabitation of the recipient spouse, meaningless in many cases. (Italics added.)

Certainly, a clear statement from a thoughtful judge; but one with which Ms. Schwartz deeply disagrees, one assumes. We expect that an appeal will follow on this delicate point of policy and statutory interpretation. Just one of many appellate cases to come from the alimony reform statute: the gift that keeps on giving.

 

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.

 

Post- Divorce Health Insurance: A Recent Decision and the Need for Reform

Wednesday, April 02, 2014

Previously, we wondered why the legislature tied a trial judge's mandatory inquiry into available health insurance at a reasonable cost to the provision of alimony in M.G.L., chapter 208, section 34. Particularly in view of the individual mandates of MA and now federal law, this seems anachronistic, at best, and begging for reform.

In the recent case of Young v. Young (12-P-1573), a Memorandum and Order Pursuant to Rule 1:28 (a so-called "unreported" decision) the Appeals Court, upheld a Probate Court judgment in which one appellate issue was the husband's complaint that the court had ordered him to provide health insurance for the wife when he was not ordered to pay alimony.

The case did not specify why no alimony issued, but we surmise from the facts reported that this was a forty year marriage and that wife was not yet retired, that either the Husband had passed the statutory retirement age and/or that neither party had "need" for spousal support. The judge did conclude, however, that the health insurance order was justified by the wife's expectation of losing work coverage at retirement and the fact that eventually, both parties will receive low cost health benefits attendant to the onset of the husband's military retirement pay.

Putting aside that these reasons seem to be a non-sequitor (What does the wife's anticipated loss of coverage have to do with coverage now? If she has coverage now, why does she need the husband's? What does post-retirement military health benefits have to do with either?), clearly this trial judge did not feel inhibited from awarding health insurance coverage to a non-alimony recipient.

Under the right circumstances, of course, this is a perfectly sensible result, which raises this question: is it time to look at post-divorce health insurance coverage anew? Since Massachusetts stepped out in front of all other states with its spousal continuation laws, and then with health exchanges and individual mandate, should it not be the first to look at this incredibly important subject comprehensively?

At a minimum, we think that the legislature ought to look at the discrepancies between M.G.L., chapter 208, section 34 and the Alimony Reform Act (can a payor's cost reduce alimony or not?), close the self-insurance loophole for employer-provided coverage (why should large companies with the capacity to absorb employee medical cost risks be exempt from covering ex-spouses where insurance companies are not), clarify portability of post-divorce spousal coverage (discretionary for subsequent employers now) and provide guidance as to what level of coverage and cost can or should be mandated. Importantly, this topic should be covered in one, comprehensive chapter or section of its own. The stakes are way too critical to the security of MA residents to be left to grasping at disparate authorities and guessing at outcomes.

As divorce mediators and family law arbitrators, we feel the need for clarity, consistency and a reflection of broad societal change in this vitally important area.

 

Impact of Cohabitation Under Alimony Reform Act

Wednesday, May 02, 2012

By Maureen McBrien

A marked change to the statutes that govern divorce in Massachusetts is the provision in the new Alimony Reform Act of 2011 that went into effect on March 1 of this year. The provision provides that an alimony recipient’s cohabitation with another person constitutes grounds for a termination, suspension or reduction in the payor’s alimony obligation.

What does that mean for the numerous alimony recipients who have been cohabiting for months, if not years, prior to the new law and for those who are contemplating cohabitation in the future?

This article will attempt to explain the nuances of the Alimony Reform Act of 2011 as it pertains to particular situations that involve an alimony recipient who has been cohabitating — or will be in the future.

Under the prior law, an alimony order was typically entered and continued indefinitely until — whichever occurred sooner — the death of either party, the remarriage of the recipient, or by order of the court upon a judgment following the filing of a complaint for modification alleging a material change in circumstances since the prior order issued.

What frustrated many payors was the continued obligation to pay alimony notwithstanding the recipient’s cohabitation with a romantic partner in a relationship akin to a marriage.

In some instances, recipients purposefully avoided marriage solely so they could continue receiving alimony. That prompted the movement to include a cohabitation provision in the new act to avoid such gamesmanship.

What is cohabitation?

Under the act, alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.” G.L.c. 208, §49(d).

The act enumerates several factors to determine whether a recipient spouse maintains a common household with another person. While not explicitly so stating, the enumerated factors are reflective of a romantic relationship akin to a marriage, as opposed to simply sharing a primary residence with, for example, a sibling, roommate, nanny or temporary boarders.

The act will fuel the private investigation business, as investigators search for evidence as to whether alimony recipients are in fact cohabitating as defined in the act.

Financial contribution of cohabitating partner

Although alimony is still premised on the need of the recipient and the payor’s ability to pay, the act makes no explicit reference to the financial contribution of the recipient’s cohabitating partner.

While in most circumstances a cohabitating partner’s financial contribution would reduce an alimony recipient’s need for financial support from a prior spouse, in some circumstances the cohabitating partner could be a financial drain on the alimony recipient.

But under the act, financial inquiries are irrelevant, at least at the outset, and the only emphasis is on whether a recipient is cohabitating.

The theory behind that juxtaposition is that ex-spouses should not be obligated to support prior spouses who are in a committed relationship akin to a marriage. Once such a relationship exists, it is incumbent on the couple to support themselves, independent of an ex-spouse.

The reality, however, is that such financial independence will not be achieved by some cohabitating recipients simply by virtue of their cohabitation arrangement.

Nevertheless, the alimony payor may be entitled, at the very least, to a reduction in his alimony obligation in such a circumstance. Under what circumstances does cohabitation warrant a suspension, reduction or termination in alimony?

Once it is determined that an alimony recipient does qualify as one who is cohabitating under the act, the inquiry in a complaint for modification by the payor is whether such fact entitles the payor to a suspension, reduction or termination in alimony.

That is when finances will come into consideration, since even though the act is silent in that regard with respect to cohabitating recipients, the court will obviously need to look at finances to determine whether a reduction as opposed to a termination is warranted.

If the relationship is long-lasting and the cohabitating partner is, in fact, contributing financially and has some savings and/or assets, a termination likely would be warranted.

But if the cohabitating partner is unemployed or disabled, the payor may be entitled to a reduction only.

That inquiry would seemingly expose the cohabitating partner to discovery in the context of a litigated modification action, to determine what his or her income, assets and liabilities are. This may create a double standard as the act is clear that spouses of payors are insulated from such discovery when the tables are turned and the recipient files a complaint for modification seeking an increase or continuation in alimony.

An alimony recipient must accurately disclose on his or her financial statement exactly what expenses are paid for by a cohabitating partner to the household. Such a disclosure might suffice in lieu of extensive discovery in this regard, other than perhaps sending out a few subpoenas to banking institutions to verify the representations.

When is a modification warranted on cohabitation grounds?

Family lawyers in Massachusetts are being flooded with calls from alimony payors elated at the word of alimony reform in the commonwealth. They want to know what they can do to obtain relief and when.

The answer is complex and factually driven, and for purposes of this article will only focus on the issue of cohabitation. The act provides that alimony “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient has maintained a common household … with another person for a continuous period of at least three months.”

The words “upon the cohabitation” suggest problems for payors in situations in which alimony recipients have already been cohabitating prior to the passage of the act, as the language is suggestive of future cohabitation.

If the recipients are already in a long-term cohabitating relationship, then what is the material and substantial change in circumstances warranting a modification of alimony, other than the passage of the act? There may be none.

With respect to relying simply on the passage of the act itself and its suggestion that alimony payors are entitled to a suspension, reduction or termination of alimony when the recipient is cohabitating, Section 4(b) of the act makes clear that Section 49, which governs cohabitation, shall not be deemed a material change of circumstances that warrants modification of the amount of existing alimony judgments.

Therefore, in instances in which a recipient was already cohabitating as of March 1, when the act went into effect, there is no change in circumstances for the alimony payor upon which to obtain relief.

The payor would need other more traditional reasons to warrant a modification, such as a reduction in income since the date the alimony issued or was last modified. And, in any event, an alimony payor’s relief may only be temporary, as the act provides for a reinstatement of alimony in instances in which the cohabitating relationship no longer exists. See G.L.c. 208, §49(d)(2). Since the act is prospective in its application per Section 4(a), the cohabitation inquiry for payors regarding their recipient ex-spouse began on March 1, 2012, and can only be satisfied if the cohabitating relationship still exists upon the expiration of 90 days, or by the end of May.

If the recipient is in a cohabitating relationship that began prior to March 1, and cohabitation is the only grounds upon which the payor seeks relief, then arguably there is no change in circumstances independent of the act (which cannot in and of itself constitute a change in circumstances of existing alimony judgments, except as to situations in which payors are paying beyond the new duration limits imposed by the act). See G.L.c. 208, §49(b).

Recipients under previously existing alimony orders who begin cohabitating for a period of 90 days or more post-March 1, however, will be subjected to a suspension, reduction or termination in their alimony obligation upon the filing of a complaint for modification by the payor, since such situation arose after the implementation of the act and thus constitutes a change in circumstances from the prior judgment independent of the passage of the act itself.

New alimony orders issued post-March 1 will be subject to modification if, as and when a recipient begins cohabitating, per the new law.

Conclusion

Under the act, cohabitation is clear grounds for modification of new orders and of existing orders when the cohabitation relationship began post-March 1.

In all other circumstances, the fact of cohabitation exposes the recipient to a potential reduction or termination, but it is not at all certain and is highly dependent on what other grounds for modification may exist.

Maureen McBrien practices family law at Todd & Weld in Boston and is an adjunct professor at Suffolk University Law School. She is currently co-authoring the Fourth Edition of “Massachusetts Practice, Family Law and Practice” with Charles P. Kindregan Jr. She can be contacted at mmcbrien@toddweld.com.

Previously published in April 30, 2012 edition of Massachusetts Lawyers Weekly. Posted with permission of the author.

 



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