Reforming (alimony) reform – A Chance to Reconsider Applying Effective Dates Retroactively in the event of Retirement and Cohabitation

May 10, 2016 by  
Filed under Matthew Solomon

by Matthew Solomon, Esq.

In 2011, the Massachusetts legislature passed the Alimony Reform Act (“ARA”). The ARA brought about a number of standards to the then existing alimony system in Massachusetts, which had been decided case-by-case by lower court judges. Because there was a lack of standards, the cases could not be relied upon by attorneys as precedent and divorcing couples often found the courts’ decisions to be inequitable or excessive.

Among other things, the legislature revised the ways which alimony can be terminated by inserting a durational limit formula and by including attaining full retirement age for social security, cohabitation for a period of three months. . The inclusion of retirement and cohabitation language in the ARA was extremely significant in that it provided clear standards that would be applied by courts to alimony obligations, and thus allowed divorcing couples a chance to come to terms short of litigation. The hope was that the ARA could help remedy some of the confusion and issues involved with these types of alimony orders.

The ARA, as with any law, is subject to the interpretation of the courts. In other words, the language of the ARA means very little until it is actually applied to a real case with real-life facts, and a court issues a ruling applying the new law based on the facts of the case.

In January 2015, the Supreme Judicial Court (SJC) issued three decisions that laid out a consistent interpretation of the ARA that surprised and confused lawyers, mediators, and even the authors of the ARA itself. In the three cases Doktor v Doktor, Chin v Merriot, Rodman v Rodman, the SJC stated unequivocally that the retirement provision of the ARA was only to be applied to cases where the judgment from the court occurred after the date that the ARA went into effect (March 12, 2012). It its ruling, the SJC relied heavily on the effective date sections of the ARA, which seem fairly clear about what cases are subject to the new act. About three months after the SJC decisions, the Appeals Court weighed in with its own opinion of the forward-looking nature of the ARA when it noted in a footnote in an unpublished opinion that the durational limits were the only exception to prospective application of the ARA (See, Cole v Cole, No. 14-P-466). See House Bill 3617 ARA, section 49 and 4(b), which provides that a pre-existing alimony order that exceeds the durational limits of Chapter 208, section 49 shall be deemed a material change of circumstance that warrants modification of the duration (not the amount) of a preexisting alimony judgment.

The overall reaction from the legal community to the three SJC rulings was generally one of disbelief and frustration. The feeling was it was patently imbalanced and inequitable that a person whose judgment of divorce was finalized one day before the passing of the ARA would not be eligible for the same alimony and modifications as a person whose divorce judgment was finalized one day later. There was also opposition to the SJC’s reading of the intent of the ARA. Several people noted that the SJC’s decisions contradicted the objective of the ARA and what the ARA was drafted to achieve. As a practical matter for attorneys, the three SJC rulings directly impacted the likelihood of success of pending alimony modification cases and the manner in which advice was given the clients with potential alimony modification suits. In fact, some attorneys have put alimony cases in limbo, waiting to see if there is any change in the law or even a ruling from a court that over-turns or modifies the SJC decisions.

Just recently there has been some significant movement with regard to challenging the SJC’s interpretation of the ARA. On February 19, 2016, House Bill No. 4034i* was filed to, in the words of Steve Hitner of the Alimony Task Reform, “fix the misinterpretation of the Alimony Reform Act of 2011 by the SJC.” (See massalimonyreform.org). The Bill is specifically designed to clarify the intention of the ARA with regard to retirement and cohabitation so that any case that brought on these issues will be modifiable regardless of the date of the divorce judgment. Stay tuned for more updates.

*As of the writing of this article Bill No. 4034 was amended by House Bill No. 4110, dated March 21, 2016. On April 19, 2016 the House ordered a third reading of the Bill. On May 10, 2016 the Bill was sent to be placed on the House Calendar.

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