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Friday, January 30, 2015

Lifetime Alimony is Back (for some)! - Chin v. Merriot

Three months ago we told you about three very important pending cases that were argued before the Massachusetts Supreme Judicial Court, all three having to do with the issue of alimony modification. Today, the SJC released their decision on these three cases (Chin v. Merriot, Rodman v. Rodman, and Doktor v. Doktor) and in doing so they have created two clearly separate classes of alimony cases: those cases that were decided prior to March 1, 2012 and those that were decided after March 1, 2012.

On March 1, 2012, the Alimony Reform Act took effect, and it included limits on the amount and duration of alimony orders going forward.  It was the law before the Act, and still is, after the Act, that alimony orders which are merged into the Judgment are modifiable if there has been a material and significant change in circumstances.  The Act also provides that the duration of old orders can be modified based solely on the "durational limits" in the new Act, even if there hasn't been a change in circumstances.

The question that the SJC faced in these three cases is whether the duration of alimony could be modified on pre-Act cases for any limitation in section 49 of the statute, or only based on the specific duration limits that apply to marriages that were less than 20 years in length: section 49(b) only.  This is a significant issue because for post-Act cases alimony can be terminated upon reaching full Social Security retirement age, or if the recipient shares a common household with someone new.   If these provisions don't apply to pre-Act cases then "lifetime alimony" will continue for any pre-Act alimony payors and recipients who were married for more than 20 years.

The SJC in Chin v. Merriot determined that "both the retirement provision and the cohabitation provision apply prospectively" only.  The Court bases its decision on principles of statutory construction which require that each word be given its plain meaning unless otherwise defined.  The Act in Section 4 makes an exception for retroactive application only for "existing alimony judgments that exceed the durational limits under [G. L. c. 208, § 49,]."  But the Act fails to define "durational limits" beyond its plain meaning, which according to the SJC in both Chin and Rodman, means that the prospective exception can only be referring to section 49(b).

Prior to these decisions, the prevailing belief, which the Act was criticized for (including in this WCVB news report), was that all the duration provisions in section 49 applied retroactively, including the retirement and cohabitation provisions.  Some believed this was unfair to recipients who depended on these funds, but many believed the Act allowed for this modification because of the language in section 6 of the act which allows modification to be sought on or after March 1, 2013 by "...any payor who has reached full retirement age, as defined in [G. L. c. 208, § 48,] or who will reach full retirement age on or before March 1, 2015."  This section seems superfluous if retirement is not including as a "durational limit."

While this is not addressed in Chin, this argument was raised in the oral argument in Doktor v. Doktor and the SJC explains in Doktor that Section 6 has to be read in conjunction with Section 5 and therefore:
"Read together, uncodified §§ 5 and 6 establish that, where a payor who had been married to a recipient for fewer than twenty years seeks to modify an alimony obligation based on the durational limits of G. L. c. 208, § 49, and the payor also will "reach full retirement age on or before March 1, 2015," the payor may file a complaint for modification on or after March 1, 2013, '[n]otwithstanding clauses (1) to (4) of [§] 5'."  
Essentially the SJC has decided that Section 6 is just a very narrow exception to the filing dates in Section 5.   While I personally believe that it is very unlikely that this was the intention of the legislature or drafters, the reality remains that there was an ambiguity left in the Act which left room for this interpretation.  If  Section 4 referred directly to the portions of section 49 by letter, there would be no ambiguity.  However, it did not and unless the legislature makes a change, now that the high court has ruled there is no longer an ambiguity on how the Act will be applied.

If you settled your case or it went to Judgment prior to March 1, 2012 and your marriage was longer than 20 years, then the same standard does not apply to your case as applies to people divorcing now.  Some will think that's fair and others won't, but the bottom line is that for some "lifetime alimony" remains the law... but only for some.


14 comments:

  1. Time to flesh out how much money the judges and courts expect to get now in those Part IV-D matching funds now that they can milk the alimony cow for life. (Check out OCSE Form 34, OCSE 42 Chapter 7, Subchapter 4, Part D, section 659 that make amounts awarded for alimony eligible for a 66% kickback to state (unrestricted as per section 658) from the federal gov. RICO anyone?

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    1. The IV-D Agency in MA is the Child Support Enforcement Division of DOR and they do not collect alimony orders, so I don't believe these changes to the alimony law affect the federal funding in any way.

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    2. in Section 659, alimony is listed as countable to those matching federal funds.
      If you have insight into the paper trail from court order to federal funding, please share. Some of us would like to view the paper trail.

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    3. All child support orders, whether collected through DOR or not, are reported to DOR and they keep track of how many child support orders there are. I'm not sure how that is tied to federal funding, but the information is collected. The same is not true for alimony orders in Massachusetts. Regardless of what Section 659 says, no-one is reporting alimony orders to DOR, and since they are not included in any reporting there is no possible connection.

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    4. Form 34 from the OCSE is how the reporting to the federal government is done. It is completed by the Part IV-D Agency director and approving state official. The form does not appear to be completed by the DOR.

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    5. MGL Chapter 119A Section 1 states that "The department of revenue shall be the single state agency within the commonwealth that is designated the IV-D agency pursuant to Title IV, Part D of the Social Security Act and hereinafter in this chapter shall be referred to as the IV-D agency." DOR is the IV-D Agency in MA.

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    6. Thanks for the info.
      How would I get a copy of a completed form 34?

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    7. This is outside my area of expertise, but if it's not published somewhere on the federal site (http://www.acf.hhs.gov/programs/css) then you could obtain it using a FOIA request.

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    8. So glad Mr. Anonymous above refers to my x as a cow.
      Believe me, I deserve every penny of my alimony. His children turned out great... BECAUSE OF ME. You are the reason women deserve alimony. Im pretty sure.

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  2. I believe the SJC got it wrong. Are they are essentially saying that the only way someone can get relief under an existing alimony order (prior to March 1, 2012) is if it ONLY exceeds the durational limits outlined in the new act?

    This is clearly wrong, and was not the intention of the alimony
    task force or the legislature, and is not the only way an existing award can
    terminate.

    They also failed to address what "as otherwise provided for in this act" represents.
    One of the PROVISIONS of the act was calling ALL EXISTING AWARDS
    PRIOR TO THE ACT "GENERAL TERM ALIMONY". That provision, allows
    the General Law that was changed by the act to be applied "today" or
    "prospectively" to those orders.

    The question of fairness is irrelevant. The questions is, what does it say and is it Legal?

    But it also begs the question, why are they getting it wrong?
    What did the legislature have to write to make it clearer?
    Is the SJC saying that all of this language about prospective application and otherwise provided for in this act means nothing?

    If that was the case, the language could or should have been: All existing
    awards will stand as written and will end upon the terms therein, or may terminate
    if they exceed the durational limits set forth in this act upon a request for
    modification without a need of a change in material circumstances. (or words to
    that effect)

    If the law were to be retroactive, (which it is not) it would be causing an impact to an existing order BEFORE the act took effect. It clearly is not doing that.

    For example, as in my case, my order stated it “shall not end upon remarriage”. This order was issued in Feb of 09. My ex got remarried in Aug 2010. The law goes in to effect in 2012. If I tried claiming my ex was not entitled to the alimony she received between 8/2010 and 3/1/2012 would be an example of RETROACTIVE application. During that time, the old law was legal, and the order was legal.

    However, moving forward or prospectively, my alimony, by operation of law, should have ended on March 1, 2012. To further this point, there is no check box on the alimony modification form to select she is remarried, because the law states it SHALL end upon remarriage.

    * I did not have a surviving agreement; my stip was based on temporary orders, and did not include death or remarriage. The judge added that verbiage to my divorce decree.
    I’ve tried to make my case to my judge, but he is ignoring the fact that my alimony is now

    “General Term”, he actually stated in his decision:

    “Although the Divorce Judgment predates the Alimony Reform Act, the alimony entered in the Judgment is most similar to reimbursement alimony. It was not intended to be modifiable and was for a fixed amount for a fixed period of time.”

    This is a clear error of law, but without appealing it I cannot do anything to get out of it.

    There is no standard of similarity in the law by which he can make that statement, the law does not provide for it. Further, even if my judge had a time machine and traveled into the future, found out there was going to be a new classification of alimony called “reimbursement alimony”, and stated that in my divorce decree in 2009, by operation of law, it STILL became “General Term Alimony” when the act took effect.

    By the way, the new law and new judgments are already "prospective" by their
    nature, so that word cannot apply to new cases after the act. It is specifically applying to existing cases before the act took effect.

    Applying the general law prospectively (now) to an existing order of “General Term Alimony”, would end or possibly end it if the requirements are met. (Cohabitation, retirement, material change of circumstance, death, remarriage, no surviving agreement, etc.)

    Sincerely,
    The Disappointed.

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    1. Just to clarify something, the limitation on modifications pursuant to the Act were limited by the court to the durational limits in section 49(b). However, that does not mean that is the only way alimony orders can be modified. Both duration and amount can be modified upon a showing of a material and significant change in circumstances (so long as the order merged and didn't survive), as was always true, even before the Act.

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  3. I live in VA and was wondering if anything like this has been done or proposed. I'm stuck with a life time alimony payment and my ex is not the least bit interested in working. In fact she love rubbing my nose in the fact that I have to pay alimony and life insurance. She lied on her support agreement by hiding assets that my attorney never knew about and now won't bring up in court.

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    1. I'm not aware of a similar movement in VA. You might want to contact massalimonyreform.org for more information about the movement in MA and whether they are aware of any other state's looking into similar reforms.

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