781.708.4445

wmlevine@levinedisputeresolution.com

Divorce Mediation Blog

This time it's a state case: merger and survival, with an alimony waiver twist McManus v. McManus

Wednesday, September 02, 2015

McManus follows on the heels of Judge William Young's federal trial court decision in Irish v. Irish, about which we recently wrote in "Making a federal case of surviving agreements", in the August 3, 2015 issue of Massachusetts Lawyers Weekly. This time, the Massachusetts Appeals Court confronted a separation agreement that unambiguously recited the parties determination that the parties' alimony exhibit survive incorporation in the divorce judgment.

The problem was that the parties' alimony exhibit stated expressly that both parties were waiving "past and present" alimony, but it did not state with particularity that they were waiving the right to seek alimony in the future. The wife later demanded alimony. The husband claimed that the silence, in the context of survival, established mutual intent to preclude future alimony; and he sought dismissal. The trial judge agreed and entered a defendant's summary judgment.

The Appeals Court did not agree, though. It concluded that silence was not golden for the husband, though it may not be ultimately for the wife either. The appellate court vacated the judgment and ordered the Probate and Family Court to hear "parol evidence", i.e., the parties' recitation of facts about what they intended at the time of the separation agreement. From there, the trial court must rule on the legal question of whether alimony is precluded by the contract, and if not, proceed to fact-finding in accordance with judgment modification standards.

This was a tough call. One logic says that the parties' selection of survival without any reservation of future alimony rights implies, as the trial court concluded, that their mutual intent was expressed as being preclusive. On the other hand, future alimony rights are so significant, and negotiations over them so frequently fraught, that if the husband had secured a preclusion, he would have been sure to include it in bright lights, in the parties' agreement.

Did the parties reach a sort of impasse at the time of divorce, such that the only way to reach a settlement was to finesse the issue by endorsing the agreement as written, and hope that the issue would never arise? Did the two sides differ about the meaning of the ultimate language? Is one side opportunistically side-stepping the parties' known divorce consensus?

Whatever the cause, the current mess is arguably the result of imperfect "boilerplate"; and perhaps both sides are paying the price. Often, this kind of an appellate outcome will facilitate settlement before formal remand proceedings, sometimes with help of the trial judge, or even in mediation. Both parties have distinct interests in resolution without trial, and avoidance of another appeal, later. Both sides have real risks; and both have the ability to compromise, and mitigate those risks.

Perhaps, cooler heads will prevail.

As we have addressed previously, "boilerplate" matters.



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



Delivered by FeedBurner

other articles


recent posts


tags

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