When Can a Judge Extend Alimony Beyond Federal Retirement Age Under the Alimony Reform Act?

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When Can a Judge Extend Alimony Beyond Federal Retirement Age Under the Alimony Reform Act?

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Massachusetts divorce attorney Jason V. Owens reviews deviations from the federal retirement age “cap” under the Alimony Reform Act.

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Attorney Jason V. Owens

This blog has paid a great deal of attention to the unequal treatment received by Massachusetts alimony payors who were divorced before 2012 versus those divorced after 2012 under the Massachusetts Alimony Reform Act (ARA). Today, we will cover a (seemingly) simpler topic: for post-2012 divorces, when can a judge deviate from the presumption under the ARA that alimony will terminate when an alimony payor reaches federal retirement age, as provided in G. L. c. 208, § 49(f).

As is often the case with statutory analysis, the answer is a bit more complicated than first meets the eye.

Alimony Reform Act: Alimony Presumed to Terminate When Payor Reaches Federal Retirement Age

The ARA’s retirement provision seems quite straight-forward on its face. It provides:

Once issued, general term alimony orders shall terminate upon the payor attaining the full retirement age. The payor’s ability to work beyond the full retirement age shall not be a reason to extend alimony, provided that:

(1) When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown; provided, however, that in granting deviation, the court shall enter written findings of the reasons for deviation.

(2) The court may grant a recipient an extension of an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of:

(i) a material change of circumstance that occurred after entry of the alimony judgment; and

(ii) reasons for the extension that are supported by clear and convincing evidence.

In short, a judge entering an initial alimony order may extend the termination date beyond the payor’s retirement age “for good cause shown”, but the judge must “enter written findings of the reasons for deviation”, and the “payor’s ability to work beyond the full retirement age shall not be a reason to extend alimony”. Notably, § 49(f) provides a significantly higher burden for alimony recipients who are seeking to extend an existing alimony order through a Complaint for Modification. Here, the statute makes quite clear that in most cases, alimony automatically ends when the payor reaches federal retirement age. Thus, the burden falls solely on the recipient to file a Complaint for Modification seeking an extension beyond the payor’s retirement age, and in order to grant the extension, they must provide “reasons for the extension that are supported by clear and convincing evidence.”

So what constitutes good cause shown? This is where it gets more complicated.

Does G. L. c. 208, § 53 Apply to the ARA’s Retirement Provision? Maybe.

A different part of the statute, G. L. c. 208, § 53(e), includes language that seems like it may affect any deviations from the the retirement provision of § 49(f). The second section, § 53(e), provides as follows:

In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include:

(1) advanced age; chronic illness; or unusual health circumstances of either party;

(2) tax considerations applicable to the parties;

(3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;

(4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;

(5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce;

(6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;

(7) a party’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor;

(8) a party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance or employment opportunity; and

(9) upon written findings, any other factor that the court deems relevant and material.

It is not absolutely clear from the statute (or for that matter the courts) whether the list of factors set forth in § 53(e) applies to deviations from the retirement age provisions of § 49(f). Language in § 53(b) suggests that perhaps the list of factors above only applies to the amount of alimony, where it provides:

Except for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued.

Although the appellate case law is thin, one unpublished Appeals Court opinion, Green v. Green (2017), suggests that judges should consider the list of factors set forth in § 53(e), where the Appeals Court noted in that case:

[T]o the extent that G. L. c. 208, § 49(f) (creating a presumption that alimony shall terminate when the payor reaches full retirement age [as the husband has]) has application in this case, the judge here implicitly found that there was good cause to deviate from that presumption, see G. L. c. 208, § 49(f)(1), and her factual findings show that she considered the relevant statutory grounds for deviation, including the wife’s age, poor health, and lack of employment opportunity. See G. L. c. 208, § 53(e). We conclude that the judge acted well within her discretion in awarding alimony to the wife even though the husband had already reached full retirement age, and we see no error in the amount of alimony awarded for the period until the husband’s retirement.

Although only an unpublished opinion, Green certainly suggests that a judge wanting to extend alimony beyond the ARA’s retirement limits should consider the factors set forth in § 53(e). However, this view of Green is slightly undermined by a Supreme Judicial Court decision, Zaleski v. Zaleski (2014), in which the SJC seemed to hold that the terms of § 53(e) constitute “mandatory factors when determining the appropriate form of alimony”, while (perhaps) suggesting that a deviation from general term alimony under § 49 “can be extended for ‘good cause’ if there has been a material change in circumstances and the reasons are supported by ‘clear and convincing evidence.’”

Zaleski makes clear that a judge deviating from the retirement cap under under § 49(f) must enter written findings of fact. What the decision seems to avoid, however, is a definitive answer to whether deviating from the retirement cap requires a judge to consider each and every factor listed in § 53(e). The importance of Zaleski’s failure to explicitly link deviations under § 49(f) with the mandatory factors listed in § 53(e) should not be exaggerated, however. All we know is that the SJC’s framework in Zaleski at least leaves open the possibility that a judge could deviate from the retirement limits of § 49 (f) without considering all of the factors listed in § 53(e).

Hassey v. Hassey: Written Findings Required For Deviation from Retirement Limit

In Hassey v. Hassey (2014), a published opinion of the Appeals Court, the Court described the need for a judge to enter written findings in support of a deviation from all presumptions under the ARA, including the retirement age cap:

[Section] 49(f) provides by default that a general term alimony order terminates “upon the payor attaining the full retirement age.” In turn, “[f]ull retirement age” is generally defined to mean “the payor’s normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program” (Social Security). G. L. c. 208, § 48. Deviation from the § 49(f) default duration at the time of the issuance of the general term alimony order requires a showing of good cause and specific written findings by the judge. G. L. c. 208, § 49(f)(1). A later extension of the duration of an existing alimony order requires good cause shown and written findings of a material change in circumstances and of reasons for the extension supported by clear and convincing evidence. G. L. c. 208, § 49(f)(2).

It should be noted that although the judge in Green v. Green (2013) did not enter findings in support of a deviation, the Appeals Court makes clear in a footnote that written findings are ordinarily required:

Although the judge did not enter written findings of her reasons for deviating — as required by G. L. c. 208, §§ 49(f)(1) and 53(e) — the parties have waived any argument that this was error. See Correia v. Correia, 70 Mass. App. Ct. 811, 816 (2007) (issues not raised below are generally deemed waived on appeal).

The need for findings was highlighted in another unpublished case, Herbert-Sullivan v. Sullivan (2016), where the Appeals Court held:

Although the judge is entitled to deviate … she must make “written findings that deviation is necessary” if she does so. Moreover, deviation “must be based on one or more of the first eight factors listed in § 53(e) or, `upon written findings, any other factor that the court deems relevant and material.'” Here, the judge made no findings to explain her rationale in deviating from the [statute] and, accordingly, we vacate the alimony award and remand for reconsideration and such findings as are necessary. (Internal citations omitted.)

Even if § 53(e) Not Mandatory for Retirement Deviation, Factors Still Worth Considering

Taken together, these cases make several points worth noting:

  1. Judges Must Enter Written Findings for Deviations Under the ARAHassey, Green and Herbert-Sullivan make clear that a judge who seeks to deviate from the presumptive alimony limits set forth in the ARA must enter written findings of fact explaining the “good cause shown” for the deviation.
  2. The Factors Set Forth in § 53(e) Are Relevant to Any Deviations Under the ARAGreen strongly suggests that a judge, in making his or her findings in support of a deviation from the retirement limits of the ARA under § 49(f), should consider the eight factors set out in § 53(e), which include the age, medical health and financial state of the parties.
  3. But the § 53(e) Factors May Not Be Required for Retirement Deviations. The SJC’s decision in Zaleski falls just short of absolutely requiring a consideration of the § 53(e) factors when deviating from the retirement cap under § 49(f), but it is not clear how much attorneys and judges should read into this omission.
  4. Deviation Findings Always Stronger if § 53(e) Factors Considered. Moreover, it should be noted that even if a consideration of the § 53(e) factors is required for retirement deviations under § 49(f), attorneys must remember that § 53(e)(9) still includes a “catch-all” provision that suggests that a judge could justify a deviation from the retirement cap based on “any other factor that the court deems relevant and material”.

In the end, the takeaway from all of these cases is this: a judge who makes careful findings supporting his or her deviation from the retirement age limit under § 49(f) of the ARA is likely to survive an appeal. As part of those findings, however, a wise judge will show that he or she considered all of the factors set forth in § 53(e). It goes without saying that it is incumbent on attorneys who are seeking a deviation under the ARA to provide judges with the basic evidence the judge needs to enter these findings.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

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By | 2017-06-30T17:35:55+00:00 June 26th, 2017|Categories: Alimony, Divorce, Family Law, Updates|Tags: , , , |Comments Off on When Can a Judge Extend Alimony Beyond Federal Retirement Age Under the Alimony Reform Act?

About the Author:

Jason V. Owens is a Partner and Senior Counsel at Lynch & Owens, and is a frequent contributor to the Lynch & Owens Blog on subjects including Massachusetts divorce, child custody and support, domestic violence, equity and estates litigation, and complex financial probate and family litigation. Attorney Owens can be reached by phone at (781) 741-5000 or email [email protected], or visit his bio page under https://lynchowens.com/attorneys/.