Skip to main content

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.


Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day