781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 2

Tuesday, November 07, 2017

“What are they, anyway?”

We introduce the subject that the Supreme Judicial Court (SJC) addressed in Young v. Young by examining the kinds of orders from which the case arose: variable or self-adjusting support orders. Here, we address the basics.

What are self-adjusting support orders? They are alimony orders expressed by a formula rather than a sum. The payor computes alimony periodically by applying a percentage to his or her defined income. Sometimes, different (usually declining) percentages apply to different tiers of income, and increasingly, thanks to M.G.L., ch, 208, § 53(b) (of the Alimony Reform Act (ARA) of 2011, eff. 3.1.12) the percentage(s) may apply to the parties’ income differential.

Think: Client A pays Client B 32.5% of the difference between the two parties’ gross pre-tax employment income each year, as received, and subject to a periodic true up after sharing of agreed income verification.

Who makes self-adjusting orders? Most often, self-adjusting alimony orders are a creature of agreement. A judge then approves and incorporates the agreement in its judgment, making the self-adjusting features court orders. For reasons discussed in previous and subsequent blog entries, judges rarely initiate such orders, being limited to doing so only in “special circumstances”, which Massachusetts caselaw has thus far identified only two: where an alimony recipient lives on another continent during high inflation times, which may justify an automatic cost-of-living provision; and one in which the payor was ill at the time of divorce, with resulting depressed earnings, but the court expected return of his historic income when his health recovered. We will discuss this standard more fully in a later blog entry.

Who uses self-adjusting orders? Most parties adopt this approach because the alimony payor’s income is subject to significant fluctuation, sometimes on the upside (think: bonuses or commissions) and sometimes up or down (think: profits). It protects the payor from having to pay alimony on income that he or she does not actually receive (downside risk protection), and the recipient is compensated by sharing when income is higher (upside benefit sharing). It echoes the way an intact couple live, economically.

Why don’t courts initiate many self-adjusting orders? The general answer is that self-adjusting orders “feel” like a violation of “due process” rights because they change the amount of support without the right to a court hearing for the purpose of showing current facts and circumstances that might mitigate against the change. The more precise reason is that case law discourages it. Young v. Young will likely reinforce the reticence of cautious judges; but we will suggest later that this ought not necessarily be the case.

In the next blog entry, we will begin to discuss the analysis that the SJC used in Young, and the standards suggested by it and earlier law.



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



Delivered by FeedBurner

other articles


recent posts


tags

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