Wednesday, April 2, 2014

Temporary Alimony is Distinct from General Term Alimony - According to SJC

In September of 2011, the Alimony Reform Act was signed into law in Massachusetts, and it took effect on March 1, 2012.  We've previously summarized the many changes that this Act brought to Massachusetts Alimony Law: The New Massachusetts Alimony Law in a Nutshell. 

As with many new laws, though, it raised as many questions as it answered.   Now that this law has been around for two years we are starting to receive answers to some of those questions from the Appeals Court and SJC.

One of these questions was whether temporary alimony orders count against the duration of general term alimony orders which begin only after a final Judgment.  The new alimony law contains duration limits in M.G.L. c. 208 § 49, which create a presumption that alimony ends at a certain time based on the length of the marriage.  For example a marriage of between 15 and 20 years, could have alimony as long as 80% of the length of the marriage.  For a marriage of 15 years this would mean alimony could last up to 12 years.  Beyond that, the court would have to make a written finding "that deviation beyond the time limits of this section are required in the interests of justice."

In many cases, however, alimony doesn't typically begin after a Judgment but instead usually begins at the Temporary Order stage of litigation.  Most cases take six to twelve months to resolve by agreement, and even longer when litigated to trial.  It is not unusual for a case to take two years from the date of filing before a trial is held, if the parties are not able to settle the matter.  If temporary alimony doesn't count against the duration of general term alimony, then the length of time a case is pending could add years to the ultimate length of time alimony is paid.

Should temporary alimony be included in the duration limits for general term alimony?

Today, the SJC answered this question in a decision on the Holmes v. Holmes case (SJC-11538, 2014, available here).   The SJC answered definitively:
"We conclude that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony."
But also gave trial judges a way out:
"We also conclude that, where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony."
In the Holmes case, the trial judge had not subtracted the two years and three months that temporary alimony had been paid by the husband to the wife from the twelve year duration that she was ordering the husband to continue paying.  The husband appealed and the SJC agreed with the trial judge.

In the SJC's discussion they point out that trial judges are not required by the statute to order alimony for the maximum duration and can, without a finding, use their discretion to limit alimony for a shorter period of time.  However, a written finding is required to exceed the maximum duration.  The SJC also points out that the Alimony Reform Act does not amend the temporary alimony statute: M.G.L. c. 208 § 17.  The SJC weighed all of this to show that the intention of the legislature was not to include temporary alimony in the duration limits of general term alimony.

The husband's best policy argument was that the trial judge's interpretation would encourage recipients of temporary alimony to delay the divorce process.  The SJC believed that a "a spouse who acts in this way does so at his or her peril because, as noted earlier, a judge in her discretion may order that general term alimony terminate before the presumptive maximum duration."  While this doesn't necessarily address the husband's practical concern it does encourage practitioners to point out to judges that the maximum duration is not necessarily the appropriate duration.

Footnote Tidbit (if there's anything I learned in law school, it's that appeals courts love to put important information in the footnotes):

Footnote 9 addresses the fact that this decision was made in a post-divorce Modification Judgment, and not in the original Judgment.  The wife argued that the duration limits didn't apply to her case in which the divorce was decided prior to the Reform Act because the husband would not have been allowed to request that the court amend the duration until after September 1, 2015 (pursuant to a stepped filing provision in the Act).

The SJC points out, however, that the husband didn't file the first Complaint for Modification, but only responded to the wife's request to increase support.  Since the modification wasn't "'solely because' the husband sought to limit the duration of alimony", the judge could address the duration issue before September 1, 2014.    This would seem to open the door for payors (of 15 to 20 year marriages) to try and limit duration prior to September 1, 2015 if they also make a claim that the amount of alimony should change due to a change in circumstances.  It should also be a warning to recipients filing a Modification that opens that door.

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