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:
- 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);
- 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);
- 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);
- All of the above; or
- None of the above.
Whatever the reason, it happened. Be disappointed if you will; but don’t be surprised.