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


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