Laurie Israel

Can An Alimony Obligation be Modified under terms of The Massachusetts Alimony Reform Act of 2011?

April 7, 2015 by  
Filed under Divorce, Featured, Recent Articles

by Matthew Solomon, Esq.

When the Massachusetts legislature enacted the Alimony Reform Act of 2011 (the “Act”), attorneys and previously divorced individuals were left with uncertainty as to how this law would affect prior alimony agreements and judgments.  (For simplicity here, I’ll refer to both as “judgments”)

Just recently, in three separate cases (in each, a ex-spouse seeking retroactive application of the Act to end spousal support), the Supreme Judicial Court held that terms of the Act does not  apply retroactively to alimony judgments entered before the effective date of the Act — March 1, 2012. These three cases involved separation agreements that were incorporated into the judgment of divorce and were merged into it, which means the provisions of the agreement regarding alimony were potentially changeable by their terms under the jurisdiction of the Family and Probate Court.

In all of these cases the person paying alimony sought to terminate his alimony payment obligations based on the Act’s language that alimony “shall terminate upon the payor attaining the full retirement age.” G.L. c. 208, §49(f).   In one of the cases, the ex-husband also sought to terminate his alimony obligation based on the Act’s language that alimony, “shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse…” G.L. c. 208, §49(d). The SJC delivered a consistent and unambiguous conclusion in all three cases: the retirement and cohabitation provisions of the Act do not apply to divorces that were final before the effective date of the Act, even if the alimony provision was merged into the judgment

In Chin v Merriot SJC-11715 (Jan. 30, 2015), the ex-husband had already reached the age of retirement when his divorced was finalized 2011.   In addition to claiming termination due to his retirement, he raised the cohabitation provision under M.G.L. ch. 208, section 49(d) as a reason for termination of alimony.  The SJC held that both provisions were prospective only.  Since in his case, the alimony provision was merged into the judgment of divorce, the ex-husband could have shown a material change of circumstance warranting modification or termination of his alimony obligation, but did not meet that burden of proof.   This option under the pre-Act law of modification is still available for ex-spouses with merged alimony judgments, because the issue of alimony remains under the continuing jurisdiction of the Probate and Family Court.

In Doktor v Doktor, SJC-11727 (Jan. 30, 2015), the ex-husband reached retirement age after the 1992 divorce.  The alimony provision merged into the judgment.  The SCJ held that presumptive termination of alimony at full retirement age in the Alimony Reform Act is 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 should warrant modification of the alimony provision.  The court also said that permissible changes in pre-Act merged judgments due to difference in “durational limits” between a divorce judgment and the Act 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.

In Rodman v Rodman, SJC-11726 (Jan. 30, 2015), the alimony provision in the 2008 divorce also was in a separation agreement that merged into the judgment. The ex-husband argued (unsuccessfully) that that in such a case the Act applies, because a merged judgment is “prospective” in effect.  The Court held that the section 49(f) provision presumptively ending alimony at retirement age for social security is not applicable, and does not apply retroactively to both merged and surviving pre-Act separation agreements. The Court further explained that the only subset of divorce cases that went to judgment before the act went into effect that are modifiable pursuant to the terms of the Alimony Reform Act are those where the alimony order (1) merged into the underlying judgment, and (2) exceed the durational limits for support provided under the act.

The decisions in these three cases had been highly anticipated by family law lawyers. At this point, it seems that any party to a divorce that was final prior to March 1, 2012 seeking to terminate alimony payments under the new retirement and cohabitation provisions of the Alimony Reform Act should be advised that their chances of success are slim to none. However, a payor who believes there has been a material change in circumstances may still apply to the Court in the form of a modification action for a reduction or elimination of alimony payments, if the alimony provision has merged into the judgment, subject to the Family and Probate Court’s continuing jurisdiction.

By speaking so decidedly and unequivocally, the SJC has provided attorneys with a precise framework within which they can advise clients seeking to modify or terminate their alimony payments on the basis of retirement or co-habitation, and also to contest duration of alimony for pre-Act divorces where the alimony judgment merged.

Note that under Section 4 (c) of the Act, as in pre-Act law, no litigant may seek modification of an existing alimony judgment in which the parties have agreed is not modifiable, and which “survive” the judgment.  This puts divorced individuals who bargained and negotiated prior to new alimony provisions contacted within the Act in a permanently unfavorable position, compared with individuals who had negotiated merged pre-Act judgments, and those in post-Act divorces.