This was a divorce after an eleven year marriage. Upon divorce, the probate judge ordered husband to pay monthly alimony that was approximately forty-one percent of the difference in incomes, which exceeded the thirty to thirty-five percent range set forth in the Alimony Reform Act. The Appeals Court stated that although such a deviation is “reasonable and lawful” under the Act, 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 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. Second, the Appeals Court found the ‘self-modifying” order gave the Wife access to the Husband’s financial information but did not grant the same right to the Husband. The husband would not be privy to information regarding the wife’s income and whether a material change had occurred in her needs.
2008 divorce with merged alimony judgment predated the Alimony Reform Act. Ex-husband sought to terminate alimony as he had reached full retirement age as defined by M.G.L. ch. 208, section 48. Ex-husband argued that modification based on full retirement allowable in merged divorce judgment because a merged judgment is “prospective” in effect. Court held that section 49(f) is inapplicable, and does not apply retroactively to both merged and surviving pre-Act separation agreements
Ex-husband reached retirement age after 1992 divorce with merged alimony provision in separation agreement. He sought to eliminate alimony under G.L.G. ch. 208, section 49(f). Court held that presumptive termination of alimony at full retirement age in the Alimony Reform Act is was meant to be prospective and does not apply to cases that were concluded before the law went into effect. In this case, the ex-husband did not establish that there had been a material change in circumstances that would warrant modification of the alimony provision, which is the pre-Alimony Reform Act method of modifying alimony in a merged agreement. Changes due to difference in “durational limits” within the meaning of M.G.L. ch. 208, section 4(b) does not include an event such as remarriage, cohabitation, or reaching the age of retirement.
Ex-husband already had reached the age of retirement by 2011 divorce. He sought to terminate his alimony obligation under M.G.L. ch. 208, section 49(f). The alimony provision was merged into the judgment. In addition, he raised the cohabitation provision under M.G.L. ch. 208, section 49(d) as a reason for termination of alimony. Court held that both provisions were prospective only, and the ex-husband had not shown a material change of circumstance warranting modification or termination of his alimony obligation.
The Massachusetts SJC again weighed in on the removal issue in Smith v. McDonald, SJC -10670, December 14, 2010. In this case, a unmarried mother moved to Batavia, New York, 400 miles away from the father, with their 6 month old child. Since the child’s birth, the father had pursued a relationship with the child. He visited him, and voluntarily providing child support. The mother moved to be near her mother and step parent, and to provide a place where aless expensive cost of living would have made it easier to take of her son.