Massachusetts divorce lawyer Jason V. Owens reviews a new bill that seeks to make the Massachusetts Alimony Reform Act applicable to orders entered before March 1, 2012.
Last week, the Massachusetts legislature conducted a hearing on Bill H.4034, “An Act reforming alimony in the Commonwealth”, which is intended to remedy inconsistencies found in original the Massachusetts Alimony Reform Act that were identified by the Massachusetts Supreme Judaical Court (SJC) in three judicial opinions entered in March of last year. Our sources tell us that the hearing focused on correcting the problems in the Act‘s language that were identified by the SJC and resulted in the serious limitations on the retroactive application of the Act to alimony orders entered before March 1, 2012. In March of last year, the SJC held that provisions of the Act limiting “lifetime alimony” and alimony to ex-spouses who cohabitate with new romantic partners did not apply to divorce judgments entered prior to March 1, 2012, which was the original effective date of the Act.
There appeared to be a consensus at last week’s hearing that the legislature intended for the original Act to apply to all Massachusetts alimony orders – not just those entered after March 1, 2012 – and that the limitations on retroactivity identified by SJC should be corrected through a new bill. To that end, the proposed bill would alter the Alimony Reform Act by providing:
SECTION 1. Section 53 of chapter 208 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word “order”, in line 24, the following words:- ,except in cases where deviation applies pursuant to GL c.208 § 53(e).
SECTION 2. Chapter 124 of the Acts of 2011 is hereby amended by striking out section 4 and inserting in place thereof the following section:-
Section 4. (a) As used in this section the following terms shall, unless the context clearly requires otherwise, have the following meanings:-
“Alimony”, the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.
“Existing alimony judgment”, an order of a court to pay alimony entered by a court prior to March 1, 2012.
“General term alimony”, the periodic payment of support to a recipient spouse who is economically dependent.
“Payor” a spouse required by order of a court to pay alimony or general term alimony.
“Recipient”, a spouse receiving by order of a court alimony or general term alimony.
(b) Existing alimony judgments shall be general term alimony as that term is defined in section 48 of chapter 208 of the General Laws.
(c) Unless otherwise provided in this section, existing alimony judgments shall terminate pursuant to the terms of such existing alimony judgment or pursuant to an order of modification entered by a court.
(d) An existing alimony judgment which has exceeded the durational limits established by said subsection (b) of said section 49 of said chapter 208 may be modified upon the filing of a complaint for modification and the court shall order modification unless the court finds that deviation is necessary under section 53(e) of said chapter 208.
(e) A payor of alimony paying alimony pursuant to an existing alimony judgment may file a complaint for modification of the existing alimony judgment if the recipient is determined to be a cohabitating pursuant to subsection (d) of said section 49 of said chapter 208. A court considering a complaint for modification of an existing alimony judgment pursuant to this subsection shall consider the recipient’s cohabitation a material change in circumstances when ruling on the complaint for modification.
(f) A payor of alimony paying alimony pursuant to an existing alimony judgment may file a complaint for modification of the existing alimony judgment if the payor has reached full retirement age pursuant to subsection (f) of said section 49 of said chapter 208. A court considering a complaint for modification of an existing alimony judgment pursuant to this subsection shall consider the payor’s reaching full retirement age a material change in circumstances when ruling on the complaint for modification.
(g) No existing alimony judgment where the parties have agreed in writing that the existing alimony judgment is not modifiable shall be modified by a court without the consent of both parties.
The key provisions of the bill are Sections 2(d) and 2(e), which would apply the Act’s provisions affecting “lifetime alimony” and alimony for cohabitating spouses to all Massachusetts alimony orders, rather than only those orders entered after March 1, 2012.
There appears to be broad agreement that the legislature intended the original Act to apply to alimony orders entered before March 1, 2012, which is the precise issue the new bill addresses. Interestingly, the proposed bill sidesteps many of the SJC’s concerns about retroactivity by simply tweaking the definition of “material change in circumstances” under a Complaint for Modification. Without delving too deeply into complicated issues of statutory construction and retroactive application, I will only say that the proposed bill presents an elegantly simple solution to the complex problems identified by the SJC last year. It’s a shame the bill’s drafters didn’t think of it the first time around.
At first blush, one concern with the new bill’s language could be that Sections 2(d) and 2(e) appear to require a judge to end or reduce alimony in every case in which the payor reaches federal retirement age or the recipient is found to be cohabitating. However, the new bill leaves in place the current language of Ch. 208, s. 49, which provides Massachusetts Probate and Family Court judges with a degree of flexibility for special cases in which alimony should continue despite a payor reaching retirement age or recipient’s cohabitation. Contrary to some claims made on the internet, our experience has been that Massachusetts judges only exercise their discretion to deviate from the Act in extremely rare situations. At a recent judicial round table we attended, four of the five judges indicated that they had never deviated from the statute in the three-plus years since it was enacted.
UPDATE (4/9/2016): Finn & Eaton have posted the latest version of the new bill, known as Bill H.4110, An Act reforming alimony in the Commonwealth, which has been dubbed he “Alimony Re-Reform Act” (ARA) by its proponents. The bill has now moved to the House Steering, Policy and Scheduling Committee, which determines legislative priorities for the House. The next step could involve the bill being reported by the Committee and placed on the House calendar for a scheduled debate before the full House.
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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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