781.708.4445

wmlevine@levinedisputeresolution.com

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.

 

Massachusetts Alimony: Watching the Pot - Part 1

Wednesday, April 10, 2013

The number one preoccupation among Massachusetts divorce lawyers this year is trying to figure out how the appellate courts will construe many of the complex and interactive features of the year old comprehensive alimony “reform” statute. They hope that once this appellate pot boils, “guidance” will flow that will, in turn, give lawyers some sounder basis for predicting how trial judges’ discretion will be bounded and exercised in the future.

There are many uncertainties in the statutes, such as:

  1. How should judges apply their deviation authority to avoid alimony termination when very long marriages bump up against payors’ retirement age in an economic environment where people are working long past “retirement age”?
  2. Where judges perceive that new alimony cut-offs are unfair, how freely should they approach unequal property allocations as a form of compensation?
  3. Should judges “count” the time of temporary alimony orders towards calculated durational limits?
  4. Are judges expected to calculate alimony or child support first?

Will the cases come down in a trickle or a rush? Will the Supreme Judicial Court pre-empt the Appeals Court? Will the decisions be narrowly crafted, allowing for slow and thoughtful development; or will we see broader and a more rambling style of statutory construction? Will the “unreported”, or so-called “128” decisions of the Appeals Court have any coherence at all?

This important and fraught process will only start this year. Will it help or hurt? In our next two blog entries, we will think about this from two perspectives: that of a divorce mediator, and as a divorce arbitrator.


 



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



Delivered by FeedBurner

other articles


recent posts


tags

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