Are Self-Modifying Alimony Provisions Enforceable?
by Matthew Solomon, Esq.
A recent Massachusetts Appeals Court case, Hassey v Hassey, 85 Mass. App. Ct. 518 (2014) addressed whether a provision in an order providing for adjustments in alimony was effective. The Appeals Court found the one in the trial judge’s order in Hassey to be unenforceable.
Husband and wife were married for eleven years. Upon divorce, the probate judge ordered husband to pay monthly alimony and an “additional alimony equal to thirty percent of his gross income in excess of $250,000.00, from all sources…payable quarterly.” The husband was ordered to provide quarterly documentation of his income to the wife. Alimony was to continue until the first of four events: wife’s remarriage or cohabitation; wife’s death; husband’s death; or husband’s retirement as defined by the Alimony Reform Act.
The Appeals Court first looked at the amount of alimony ordered. (Note that this was not a consensual separation agreement entered into by the parties.)
In this case, the probate court failed to include in the findings of fact a consideration of the parties’ ability to maintain the marital lifestyle. This omission by the probate court gave the Appeals Court the opportunity to review the amount of the alimony award. The alimony order of the probate court was approximately forty-one percent of the difference in incomes, which exceeded the thirty to thirty-five percent range set forth in M.G.L. c. 208 §53(b). The Appeals Court stated that although such a deviation is “reasonable and lawful” under §53(b), the probate court made no “finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage.” Thus, the probate court’s ruling on general support alimony was vacated.
Next, the Appeals Court reviewed the “self-modifying” portion of the alimony order. The Appeals Court detailed two major issues with this part of the order. First, the “self-modifying” order was “not based on a judicial determination, supported by subsidiary findings of fact, of an increase in the wife’s need accompanied by the husband’s ability to provide for the same.” The Appeals Court focused on the fact that the way the modification was ordered, the burden to show a change in circumstances was improperly shifted to the husband. The wife had no “corresponding burden and will automatically realize the benefit of any increase to the husband’s income.” Second, the Appeals Court found the ‘self-modifying” order was “inequitable because it requires only the husband to disclose quarterly income to the wife, but imposes no reciprocal duty on the wife.” The husband would not be privy to information regarding the wife’s income and whether a material change had occurred in her needs.
A couple takeaways on this case: (1) drafting of “self-modifying” clauses should be done extremely carefully with as much explanatory language as possible; and (2) consider agreements to deviate from 53(b) alimony amounts. Another takeaway is that if a litigated case, careful reading of the findings of fact should be done to make sure that the lower court has addressed all the statutory factors in determining the initial alimony order.
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