Divorce Mediation Blog

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.


The Governor’s Council is the Problem

Tuesday, December 03, 2013

[NOTE: This piece ran as a letter to the editor of Massachusetts Lawyers Weekly in its December 2, 2013 edition, under MLW’s chosen title “Council Embarrasses Self By Humiliating Nominees”. We re-produce it here in its original form, and with our given title.]

By William M. Levine and E. Chouteau Levine

We read the lead story in the Metro section of the November 21, 2013 Boston Globe, titled "Ethnic tensions flare at judicial meeting", by Michael Levinson, of the Globe Staff, with distress and embarrassment. As practicing family law attorneys in Massachusetts for 44 years combined, one of us as a Probate and Family Court judge for 10, and the last two years solely as a mediators, masters and arbitrators, we have both watched and participated, sometimes in horror, as the Governor’s Council humiliated nominees to the bench. Most often, this rite of passage resulted in confirmation of the governor’s designates: an irritating personal experience for the successful nominees; but one consigned the memory drawer of unpleasantness, dubbed the price of service. On some occasions, the nominations failed, with embarrassed candidates resuming professional lives, disrupted, and in some cases in tatters, because of this demanding, interminable and quite public process.

These lawyers, approved and otherwise, had all been vetted previously by a non-partisan process endorsed and utilized by both major political parties, of several decades’ standing. The Judicial Nominating Committees reviewed, interviewed and debated each of them, informed by enormous paper applications, professional and personal references, member-driven due diligence and state police investigation. They were all reviewed and interviewed by the Governor’s counsel, and reviewed and interviewed again (admittedly, an often pro forma step) by the governor him or herself. Then came the dreaded trip to the Governor’s Council, a constitutional body of politicians elected in 8 districts statewide, after down ballot and mostly unnoticed campaigns.

We have attended many of these hearings. Mostly, we went as supporters of a qualified nominees, in hopes that it “wouldn’t be so bad” for them, and providing requested backing as observers. One of us was the subject of such a hearing, who survived the process intact. Subsequently, when “word” filtered to her from a sitting counselor that she should not appear before this body again (for nomination to another seat) because of a mildly controversial trial decision that she had entered, memories of the first experience revived, and the message was heard. We asked each other then, and ask it now here (as lawyers ask each other all the time): why would anyone subject himself or herself to this process?

Now, for the Globe story. Joseph S. Berman, of whom we knew nothing before last week, offered himself for service to the Commonwealth as a justice of the Superior Court. For today, he embodies the old saw from Claire Booth Luce: "No good deed goes unpunished." The nomination, according to the paper, is dead, despite Governor Patrick's tactical delay to avoid a losing vote. We have all lived this movie before, most memorably for our end of the bar and bench early in this decade, when the Governor’s Council internally, then publicly (Howie Carr? Really.) trashed a highly experienced and respected lawyer who had the misfortune to win nomination as a justice of the Probate and Family Court. First, he was nominated, then skewered by the Governor's Council and finally abandoned by the administration.

Today's version of that earlier travesty is reportedly based on three things: 1) that Mr. Berman has been a prominent part of the Anti-Defamation League; 2) he has contributed money, some would say a lot of money, to Democrat political candidates in the state, and 3) this lawyer once represented a Guantánamo defendant. Now, there may be other reasons that were not reported in the Globe piece, and we have long since earned a healthy skepticism for news reporting, but the story is so unsurprising and so consistent with the history of this blighted body, that it rings true.

Does the Governor’s Council truly believe that these are disqualifying biographical facts when addressing the capacity of a lawyer to discharge the sober responsibilities of the civil and criminal docket of the Superior Court? In a world where ethnic tensions threaten survival of nations and peoples, is it this body's job to fan those flames here, on the matter of fitness to serve as a trial justice? This has nothing to do with whether or not it was fair, smart or appropriate for the ADL to mince words on the Armenian genocide (we believe it was not). In a society where the United States Supreme Court has equated campaign contributions to free speech, is at the Governor’s Council’s job to punish it? And, in a constitutional system where every criminal defendant is entitled to representation, no matter how odious the accused or the crime charged, is it this body’s duty to condemn a man for following the example that we now celebrate in John Adams’ principled defense of British soldiers after the Boston massacre? Do we not want judges with courage?

Once again, it appears, the politics of the petty trumps the public good. The Governor’s Council has debased the judicial confirmation process for far too long. It is unfit to serve its constitutional duty. Massachusetts is the envy of lawyers and judges across the nation because of our ability, more than most, to insulate our judges from political crosswinds. An elected judiciary that looks over its shoulder when making controversial decisions, or to practicing lawyers for campaign contributions, is the bad alternative. “Life” tenure results in a few long-term mistakes, but it is, by and large, the best system going. But, its success depends on a highly motivated few who are willing to run the gauntlet of an unconscionably long vetting process, the financial challenge of trying to earn a living when people know about a pending judicial application and the risk, in the end, of public humiliation and rejection for reasons with no justified rhyme or reason from minor politicians.

William M. Levine and Hon. E. Chouteau Levine (Ret.) are private dispute resolution service providers in Westwood and Northampton, MA. Judge Levine was Circuit Justice of the Probate and Family Court from 2001-2011.


2013 Child Support Guidelines Preview Part 3a: Whose Income Is It, Anyway (Revisted)

Wednesday, August 14, 2013

Could it be that the Probate Court reads our blog?

Just kidding. But a Lawyers Weekly announcement today that there is a new NEW Child Support Guidelines Worksheet discloses a section 3 innovation that now automatically calculates the “excess income” of the parties over $250,000.00 per year. Not only that, it calculates the parties’ respective shares of the excess. It is a subject that we explored in some depth in our July 24, 2013 entry.

It is a convenient short cut for practitioners, clients, courts and divorce mediators, but it also emphasizes that “discretionary” pool of income not absorbed by the presumptive mandatory minimum periodic payment of child support. Could this encourage extension of the mandatory minimums? Maybe.

But it will certainly draw attention to percentages that all Child Support Guidelines users will at least consider in addressing ancillary expenses.


Post-Divorce Health Coverage: Whatever happened to the Qualified Medical Child Support Order?

Wednesday, May 15, 2013

Post-Divorce Health Coverage: Whatever happened to the Qualified Medical Child Support Order?

In a recent case, the parties were having problems with the flow of medical benefits, paper, information and cash. As they discussed remedies, it occurred to me "What about a "QMSCO"? I hesitated to raise it, concerned that the lawyers involved just might not have ever heard of one. I was fairly certain neither had ever used one of these obscure federal instruments. I was right on the second point.

The Qualified Medical Child Support Order was created by Congress in a 1993 amendment to ERISA. It established the obligation of employment based retirement plans to extend medical insurance coverage to dependent children of participant employees as a matter of federal law. While this basic policy was not new to Massachusetts, some of the structural aspects of the law were new here.

For example, with a QMSCO in place a medical insurance carrier can be required to recognize the rights of an alternate payee. In other words, if a state divorce judgment requires that coverage extend to children after divorce, it shall be so as a matter of federal law, too. Then, to the extent that the state judgment vests responsibility children in a non-employee spouse, that spouse may then stand in for the employee as the beneficiary for logistical purposes. That is, the custodial parent becomes the recipient of claim forms, notice of benefit changes, application for benefits for a child and the recipient of any insurance reimbursements.

The effect of a QMSCO is to cut out the employee as conduit of paperwork and cash if the parties agree and/or the state court so orders. Efficiency and reduced need for interaction between ex-spouses seems the result. Gone, too, are the frustrations of medical carriers who refuse to speak with inquiring parents, saying that they will only speak to the employee.

We can count the number of QMSCO's that we have seen as lawyers, judge and divorce mediators on one of our hands. We wonder why?


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