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NO COUNTRY FOR OLD MEN: PRE-ARA ALIMONY PAYORS CAN’T STOP PAYING AT RETIREMENT AGE JUST BECAUSE THE LAW CHANGED Chin v. Merriot, Rodman v. Rodman & Doktor v. Doktor Part 4 (Why is everyone so surprised?)

Wednesday, March 18, 2015

We return to the Supreme Judicial Court’s January 2015 alimony trifecta, because of comments that we have received since our 3 previous blog entries about these cases. Divorce lawyers are positively buzzing about the SJC’s rulings. We were critical of the cohabitation decision (Part 2) and fairly horrified by the downstream potential for wiping merger and survival distinctions from our practice (Part 3); but we were quite measured in our comment regarding the central question common to the cases: retirement age termination (Part 1).

Part of the reason was that the SJC had to make an important fairness decision about the retirement age question. One constituency (payors), or the other (payees), was going to pay the price for this binary outcome. Whether an SJC policy decision to protect pre-ARA recipients drove the court’s statutory construction, or if it emerged as its product, is a cart-and-horse question. We understood the fairness impact that resulted. They had to pick one.

What puzzles us now is why professionals in the field are shocked, as many are, by the retirement age decisions. Putting aside speculation about judicial motivations, we have to ask the question: if the legislature clearly and unequivocally intended that the retirement age termination provisions absolutely benefit pre-ARA alimony payors, it did not did not say so. In viewing the oral arguments (as we did), and in reading the statutory language, the only clear thing was that the payors’ advocates had to piece together disparate provisions in interpretive contexts, so as to construct and answer to their liking. They simply did not have the material to say:

    Here is the definitive dispositive language, Your Honors: “All alimony judgments, regardless of the date of their entry, shall be subject to M.G.L., ch. 208, §49(f). There is no contradictory language.”

If making retirement age termination universal were a signature legislative priority, the statute did not do a very good job of reflecting it. By giving the SJC two nuanced avenues from which to choose, and by making the point debatable, the legislature lost. This could have happened for any number of reasons, including:

  1. It was not a clear legislative priority (cue the protests of many of those involved with creating and shepherding the draft statute through the legislative process);
  2. The political process on Beacon Hill was just so fraught that in and among the various political pulls and tugs vagueness trumped specificity to get the deal done (wouldn’t be the first time);
  3. The bill was so sweeping in its reform scope that something was bound to go wrong in drafting (see, King v. Burwell and the unfolding fiasco about Medicaid subsidies on “state” health insurance exchanges);
  4. All of the above; or
  5. None of the above.

Whatever the reason, it happened. Be disappointed if you will; but don’t be surprised.

 

NO COUNTRY FOR OLD MEN: PRE-ARA ALIMONY PAYORS CAN’T STOP PAYING AT RETIREMENT AGE JUST BECAUSE THE LAW CHANGED Chin v. Merriot, Rodman v. Rodman & Doktor v. Doktor Part 2 (Cohabitation)

Wednesday, February 11, 2015

In our last entry, we reviewed the common central holding of this trio of cases; namely, that with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years, alimony payors under judgments that preceded the Alimony Reform Act (eff. 3.1.12) (ARA) cannot benefit from the presumptive retirement age termination provisions of the statute. Today, we look at what seems a particularly unfair precedent on cohabitation that Chin v. Merriot sets.

While many believe that these cases were decided wrongly on the retirement age question, as a matter of statutory construction, there was an unspoken principle that may have understandably influenced the Supreme Judicial Court’s (SJC) rulings. Specifically, countless pre-ARA alimony recipients negotiated property and support deals in a legal environment where alimony payors had no expectation of any pre-ordained termination of alimony short of death or, presumptively, the ex-spouse’s remarriage. Most payors could not afford to pay a premium great enough to achieve an automatic retirement, or retirement age, termination; therefore, payees lacked the “opportunity” to demand one, such as a higher alimony sum, or more property. The prospect of having have these alimony recipients made vulnerable to a presumptive retirement age cut-off that did not exist at the time of their divorces created the aura of potential, and in many cases, substantial inequity. Had they known, one might have worried, the payees might have negotiated differently; and they may have lived and planned differently in the period between divorce and the legislature’s alimony overhaul.

In Chin v. Merriot, though, the SJC went a step further in response to the Husband’s claim of relief due to the Wife’s cohabitation. The same huge class of alimony recipients, who rightfully did not anticipate a presumptive retirement age termination, also did not expect that the status of cohabitation with another person would require a court to reduce, suspend or stop alimony, when they made their deals. Since all of that changed with the ARA, one might be tempted to say that the same putative inequities existed that would justify pulling cohabitation within the sweep of the SJC’s retirement age rulings; but one would be wrong.

There is a huge difference.

First, every alimony recipient has been on notice since 1990’s Freedman v. Freedman that at least to the extent that a cohabiting relationship was found to reduce need for alimony, relief was available to the alimony payor. M.G.L., ch. 208, §49(d) codified the remedy, made it more explicit and did not stress the requirement of showing need reduction. But, the mere fact that the statutory relief can range from a $1 reduction to outright termination shows the needs question to be a live one under ARA, just as it was before. Every alimony recipient for the last quarter century has been fairly chargeable with the knowledge that cohabiting can jeopardize alimony – very unlike mere retirement age. Second, and more compellingly, since the legislature passed the ARA in 2011, and certainly since its effective date on March 1, 2012, everyone who has paid attention to alimony matters at all, has been on notice that the court must now do something, if a common household is properly pleaded and proved. No one cohabiting in 2015 could justifiably plead unfair surprise.

So, it follows that the prejudice to alimony recipients on the cohabitation question is not remotely the same as to those of those for whom retirement age termination was really an abstraction. Certainly, those who commence cohabitation after March 1, 2012, are fully on notice of their vulnerability should they choose to pursue a common household.

We wonder if the SJC considered these differences in deciding Chin v. Merriot, but felt no alternative to sweeping cohabitation in with retirement age so as to justify their reading of uncodified §4 of the ARA as trumping M.G.L., ch. § 49(f). Whatever the court’s reasoning, pre-ARA payors take the hits uniformly. On retirement age, we can see it; but on cohabitation – at least post-ARA cohabitation – clearly not.

It is very – very – hard to believe that this furthers the legislature’s intent.

We will conclude our discussion of these cases the next time, with another aspect of the Rodman v. Rodman decision that should really keep alimony payors – and their lawyers --- up at night.

 

NO COUNTRY FOR OLD MEN: PRE-ARA ALIMONY PAYORS CAN’T STOP PAYING AT RETIREMENT AGE JUST BECAUSE THE LAW CHANGED Chin v. Merriot, Rodman v. Rodman & Doktor v. Doktor Part 1

Wednesday, February 04, 2015

O.K., let’s get the sexist title out of the way. Alimony law is gender blind on paper, but in the pre-Alimony Reform Act (ARA) (eff. 3.1.12) era, most alimony payors were (and are) men. To be fair and accurate, the Chin, Rodman and Doktor cases are equally bad news for pre-ARA alimony payors who are women. It’s only a blog title.

Now, for the cases.

In one remarkable morning last year, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments on three cases that all turned on a single question: do alimony payors whose divorce judgments entered before ARA’s effective date have the benefit of substantive termination and modification rights changes that the new law has wrought? The answers, delivered three times over, also on the same day, is “no”, with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years.

Put more positively, an alimony payor whose divorce judgment preceded March 1, 2012 can seek a termination of alimony by reason of the ARA durational limit having been reached (50% of up to 5 year marriages, 60% of 5+ to 10 year marriages, 70% of 10+ to 15 year marriages and 80% of 15+ to 20 year marriages), without proving any other change of circumstances. But, we already knew that. Everyone else is left to the pre-ARA uncertainties and heavy burdens of prior decisional law, most notably including Pierce v. Pierce.

The three cases were variations on a theme: a payor asking to stop general term alimony payments because M.G.L., c. 208, § 49(f) says that such payments shall terminate at the payor’s attainment of social security retirement age. In Chin, the husband had reached that age before his divorce, while the Rodman and Doktor payors attained retirement age after divorce. Mr. Chin argued that M.G.L., chapter 208, section 49(f) trumps the “uncodified” section 4 of ARA (which provides that, excepting durational limits for >20-year marriages, ARA is not itself a material change of circumstances). Mr. Chin also argued that cohabitation modification rights (another “shall” in the statute) should apply retroactively. Mr. Rodman asserted that a merged alimony agreement merits different treatment than those cases with surviving agreements. Mr. Doktor claimed that his former wife no longer had the financial need for alimony.

All three of the plaintiffs failed. The SJC concluded that a comprehensive view of the ARA statute yields a clear legislative determination that uncodified sections 4-6 override the more payor-friendly substantive sections of M.G.L., c. 208, § 49-55 with the sole exception of general term durational limits. Agree or disagree, it is a clear rule. It is most certainly bad news for pre-ARA payors; and it protects their former spouses from having the rug pulled out from under support deals made when automatic retirement age termination was not obtainable in court, and rarely even negotiable, under then prevailing law. The SJC had a binary decision to make; and its reading of legislative intent promotes the payees’ interests over the payors’.

In our next entry, we will look at what seems a particularly unfair precedent on cohabitation that Chin v. Merriot sets, that is quite different than the retirement age question; and an aspect of Rodman v. Rodman that should really cost alimony payors some sleep.

 



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