The Alimony Reform Act  has led many to seek changes to their alimony orders and agreements.  The change from "lifetime alimony" was a driving force behind the Act, after all.  However, that doesn't mean that everyone is entitled to a change under the Act. In Demarco v. Demarco , the Appeals Court looks at a case where two parties reached an Agreement based on an assumption that the husband was entitled to a change under the Act.  That assumption was incorrect according to the Supreme Judicial Court's ruling in Chin v. Merriot (and its two companion cases, Rodman & Doktor).   The recipient spouse in Demarco believed that this mistake required her case to be reopened, and the trial judge agreed.  Below is a recap of the timeline in this case: May, 2010  - The Demarco's get divorced, with an agreement that includes an alimony payment ( merged order ). Mar, 2012 - The Alimony Reform Act takes effect, and it includes a provision that alimony p...

The Alimony Reform Act  has led many to seek changes to their alimony orders and agreements.  The change from "lifetime alimony" was a driving force behind the Act, after all.  However, that doesn't mean that everyone is entitled to a change under the Act. In Demarco v. Demarco , the Appeals Court looks at a case where two parties reached an Agreement based on an assumption that the husband was entitled to a change under the Act.  That assumption was incorrect according to the Supreme Judicial Court's ruling in Chin v. Merriot (and its two companion cases, Rodman & Doktor).   The recipient spouse in Demarco believed that this mistake required her case to be reopened, and the trial judge agreed.  Below is a recap of the timeline in this case: May, 2010  - The Demarco's get divorced, with an agreement that includes an alimony payment ( merged order ). Mar, 2012 - The Alimony Reform Act takes effect, and it includes a provision that alimony ...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than  letting a Judge decide your fate . Part 4:  Parent Coordinator:  Do you want help resolving parenting disputes without returning to court? In Part 1 , we discussed how the Appeals Court in Ventrice overturned a lower court's order that required parties to engage in out-of-court mediation prior to filing any further action in the Probate and Family Court.   While Parent...

A number of recent appellate decisions in Massachusetts have addressed the boundaries of what Probate and Family Court trial judges have the power to do.  Agreements reached between the parties, however, can include provisions that the judges don't otherwise have the authority to order.   In this four part blog series we will explore some of the important areas that an Agreement can address but the trial court is limited in addressing.  These are just some of  the most recent examples, and not intended to be an exhaustive list of all the ways that Agreements are better than  letting a Judge decide your fate . Part 3: Survived Agreements:  Do you want to decide now that certain issues can never return to court? The issue of survived v. merged agreements can often be a confusing one, but it is actually relatively simple:  Merged agreements can be changed in the future by a Court, and survived agreements can NOT be changed in the future by a C...

This post written in collaboration with Jason V. Owens, Esq. of Stevenson & Lynch, P.C. The Appeals Court recently decided another alimony modification case, Lalchandani v. Roddy (AC 13-P-1988) , but don't get excited.  The case doesn't contain any revelations.  The issue presented in Lalchandani v. Roddy is whether a husband who has reached federal retirement age can seek to terminate his alimony obligation, despite a  survival clause prohibiting modification in a divorce agreement , where the parties subsequently agreed to reduce the husband's alimony after the divorce.  In this case, the flaw in the husband’s argument was easy to spot: the modification agreement that the parties entered after the divorce also contained a survival clause that prohibited any further reduction in the alimony unless husband becomes “totally disabled such that he is completely prevented from working”. Since, the Alimony Reform Act is quite clear that surviving alimony...

In Massachusetts, the court has the authority to order divorced parents to contribute something to their children’s college education expenses.  Usually the court won’t deal with this at trial unless the children are almost of age to attend college, but most agreements will address the issue in some way. When it comes to the payment of college education expenses, the specific language that your Separation Agreement contains is very important. Many agreements require parents to contribute in proportion to their incomes and abilities at the time the college bill becomes due. However, if your agreement states that you are to share equally, then that could require you to contribute one half of the cost. How educational costs are defined by the agreement could differ greatly and the specific language of your Separation Agreement will be key to determining exactly what you are required to pay. And if you are required to pay a specific amount and you don't you could be liable fo...

Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived.   Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.  When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment.  If merged this means that such orders can be modified if there is a material and significant change in circumstances.  Merging alimony orders is more typical because no one knows exactly what could change in the future. If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011.  We have explored this possibility at length in our previous post:   Modification under the Alimony Reform Act of 2011: Updated Flowchart . In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimon...

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied.  Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. In order ...

For an explanation of the difference between merger and survival of Separation Agreement provisions read our past post on this question. There are two types of provisions that cannot survive a Judgment of Divorce but must be merged. These are provisions relating to child custody/visitation and child support. The Court retains jurisdiction over provisions relating to child custody/visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although there is another method by which a parent can give up their parental rights permanently (through a Waiver of Parental Rights), there is not any way that a party can guarantee they will keep their rights forever. The right to be custodial parent will always be subject to your continued fitness to parent your children. Although typically paid to the custodial parent, child support is also for th...

One of the most important legal distinctions for clients to understand when signing a Divorce Agreement (also commonly called a Separation Agreement) is the difference between merger and survival . The distinction between these two designations could mean all the difference in whether an Agreement is fair and reasonable or not. It can affect whether or not you will have to return to court in the future, and could determine issues as important as whether or not alimony can be changed (increased, decreased, added, or eliminated) in the future. Unfortunately, most pro se parties who prepare Separation Agreements on their own do not understand what this language means. Oftentimes I have also found that parties who used a mediator, but did not review their Agreement with a lawyer, do not fully understand what they've agreed to when it comes to the merger/survival clause. This clause is so important that spending a few hundred dollars to at least review your proposed Agreement wi...