Kimberley Keyes reviews a recent Appeals Court decision granting alimony to a former wife six years after her divorce, following the termination of child support.
Can the emancipation of a child and the resulting termination of child support trigger a material change in circumstances sufficient to justify an alimony award? A recently published decision from the Massachusetts Appeals Court suggests that it can.
In Flor v. Flor, the Appeals Court held that because the parties had expressly reserved the right to revisit future alimony in their separation agreement at the time of divorce, the former wife could seek alimony after child support ended following the emancipation of the parties’ children. The Court found that the decrease in the former wife’s income that resulted from the loss of child support constituted a “material change in circumstances” that warranted a modification in the judgement of divorce.
The resulting judgment of modification in Flor required the former husband to begin paying alimony to the former wife more than six years after the divorce. Moreover, because the parties were divorced before 2012, the former husband was subject to a so-called “lifetime alimony” order, meaning his alimony obligation to the former wife will be indefinite in nature.
The decision was consistent with an unpublished Appeals Court that we blogged about last year. In her blog on that case, Attorney Levy wrote:
This case serves as an example of what can occur years after a divorce. Children becoming emancipating or the enactment of the Alimony Reform Act does not bar litigants from returning to the court to revisit support issues. Where the courts continue to debate which areas of the Alimony Reform Act will apply prospectively, and which will apply retrospectively, I anticipate that the issue of when alimony should begin (or end) will continue to be a pressing concern.
Table of Contents for this Blog
- Wife Reserved General Right to Seek Future Alimony in Separation Agreement
- Termination of Child Support Paves Way for New Alimony Order
- Reserving the Right to Revisit Alimony Acknowledges that Emancipation Changes the Financial Circumstances of the Parent Receiving Child Support
- Change in Circumstances Should Include Reference to Parties’ Income and Expenses
- Recent Alimony Blogs by Lynch & Owens
The parties were married in 1984 and had one child, a daughter, born in 1993. The husband was the primary breadwinner during the marriage, while the wife was the primary homemaker and caregiver to the child. By the time the parties divorced in 2008, the wife had not worked outside the home in eight years. By the time she filed her complaint for modification seeking alimony in 2016, the now former wife had not worked outside the home in 15 years.
The Probate and Family Court issued a Judgment of Divorce Nisi in 2008, incorporating a separation agreement of the parties. The agreement provided that the husband would pay child support to the wife until their daughter was emancipated, which would occur at the latest when she turned 23. The agreement further provided that the wife waived any claims to past and present alimony, but did not waive “her rights to future alimony and/or support.”
In 2015, as their daughter’s 23rd birthday was approaching, the wife filed a complaint for modification of the divorce judgment. The husband moved for summary judgment, which the court denied because there was a genuine issue of material fact as to whether a material change in circumstances had occurred (the standard for granting a modification of a divorce judgment). The case ultimately proceeded to trial in the Berkshire Probate and Family Court, where it was heard by Hon. Richard A. Simons, who entered his decision in the spring of 2015.
The wife was 56 and the husband was 59 at the time of trial. The judge found that after the divorce, the wife made a conscious choice not to work outside the home; made “minimal efforts” to find employment, that she was “ambivalent” about finding a job, and that her lack of motivation was the only thing keeping her from working “in some capacity.” As a result, the trial judge attributed income to the wife based on a full-time minimum wage job. Even still, he found that she would be unable to meet her then-current needs without alimony from the husband, who had the ability to pay.
The judge ruled that the child’s imminent emancipation and simultaneous termination of child support from the husband “constituted a material change in circumstances that authorized him to consider whether an order for general term alimony was appropriate.” The judge concluded that an alimony award was appropriate, based largely on his findings “that the husband’s expenses had decreased, the wife’s expenses had increased, and the husband’s total financial circumstances were far superior to the wife’s.” The court ordered the husband to pay $145 per week in general term alimony to the wife for an indefinite period of time.
Reserving the Right to Revisit Alimony Acknowledges that Emancipation Changes the Financial Circumstances of the Parent Receiving Child Support
On appeal, the husband argued:
[T]he emancipation of the couple’s only child could not serve as the basis for a determination that there had been a material change in circumstances because that event was anticipated by the parties when they entered their separation agreement. In particular, the husband maintain[ed] that Downey v. Downey, 55 Mass. App. Ct. 812 (2002), holds that a party in the position of the wife has the right to raise the issue of alimony at the time of a child’s emancipation only when that party explicitly reserved such a right in the separation agreement.
The court in Flor rejected that argument, pointing out:
[I]n Downey, we recognized that a general reservation of the right to revisit alimony, as in this case, ‘constitutes a tacit acknowledgement that the real financial circumstances of the wife could well change upon the child’s emancipation.’ This view is in keeping with the general rule that ‘[c]hanged circumstances are those that occur subsequent to the judgment of divorce or subsequent to a prior modification.’ (Internal citations omitted.)
Thus, the Court found that it was enough that the wife did not waive future alimony in the separation agreement. In other words, it wasn’t necessary for the agreement to explicitly state that the wife could receive alimony after child support ended. By simply leaving the option of future alimony open in the separation agreement, the wife did enough to reserve the right to seek alimony after child support ended.
It is important to note that the Court did not endorse a bright line rule in which child support ending automatically results in a new alimony order. In a footnote, the Court made clear that it was the financial impact of child support ending – not the emancipation itself – that provided grounds for a new alimony order:
Contrary to the husband’s claim, this is not a case in which the judge made an order for alimony based simply on the fact that there was a cessation of child support. Here, the judge’s subsidiary findings that led to his conclusion that a material change in circumstances had occurred do not even mention the cessation of child support. Instead, they describe the changes in income, expenses, assets, and liabilities of each of the parties. The decision is not based solely on the emancipation of the child, but also on the factors that are appropriate to consider in making an award of general term alimony.
The holding suggests that if a party has reserved the right to seek alimony in the future, then the loss of child support that arises out of the emancipation of the children is valid grounds for seeking an alimony award on modification. However, the decision includes cautionary language suggesting that the party seeking alimony should argue the change in circumstances broadly rather than pointing to emancipation alone. In other words, the loss of child support should be placed in in the context of the parties’ changed income and expenses at the time of the modification.
We have blogged in the past about the end of child support being grounds for triggering alimony. Also, a recent SJC case suggesting that the “need” of a party seeking alimony on modification should be limited to lifestyle actually enjoyed during the marriage now seems even more relevant for cases when the Court is entering the first alimony order many years after the divorce. Check out Attorney Owens’ blog on how the Flor decision resulted in a “lifetime alimony” order for the former husband more than six years after the divorce was finalized.
About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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