Massachusetts divorce attorney Jason V. Owens flags an Appeals Court case while noting a recent increase in wives paying alimony to husbands in MA divorces.
The recent unpublished Appeals Court decision in Cournoyer v. Cournoyer (2017) focused on a former husband who received more than $100,000 per year in alimony from his former wife following an 18-year marriage. The specific issues in the case, which we will discuss further below, focused on whether the former husband should be required to repay the wife for $88,592.96 in alimony that the husband received after the date the wife’s alimony was terminated by the court. Beyond the specific legal issues addressed in the case, the Cournoyer case illustrates that Massachusetts courts do sometimes order higher-earning wives to pay alimony to lower-earning husbands following a divorce.
Few would dispute that Massachusetts is a progressive state. Massachusetts was essentially the birthplace of same-sex marriage in the United States, and the state can boast of numerous feminist icons, ranging from Katharine Lee Bates, who wrote America the Beautiful, to Elizabeth Warren. As women have advanced in the workplace across America, Massachusetts has often taken the lead in women’s causes.
Greater equality for women has sometimes come with a price, however. In Massachusetts Probate & Family Courts, Massachusetts women have seen long-held assumptions about mothers having primary physical custody of children erode in recent years. As more and more Massachusetts mothers have entered the workforce, the division of child-rearing labor between mothers and fathers has likewise grown more equal. The result is that more fathers are being granted shared physical custody – or even primary physical custody – of children than at any time in recent memory.
Another area of change over the last decade has been a drastic increase in cases in which a female spouse out-earns her male counterparts. The increased compensation of Massachusetts wives has led to an increasingly common phenomenon: women paying alimony to their former husbands following a divorce. Do Massachusetts courts ever order wives to pay alimony to their husbands? The answer is yes, and such orders are becoming more common all the time.
Table of Contents for this Blog
- Cournoyer: When a Court Retroactively Reduces Alimony, an Alimony Recipient Sometimes Needs to Return the Money
- Former Husband Entitled to Alimony Beyond Durational Limits of Alimony Reform Act Due to Poor Health?
- Retroactive Alimony Repayments: Too Big to Fail?
- Alimony Payments by Women: the Wave of the Future?
Cournoyer: When a Court Retroactively Reduces Alimony, an Alimony Recipient Sometimes Needs to Return the Money
In Cournoyer, the parties were divorced in 2001 following an 18-year marriage. At the time of the divorce, the wife was ordered to pay the husband $85,000 per year in alimony, as well as additional alimony equal to 33% of the wife’s annual income above $250,000. In the years that followed the divorce, the parties returned to court several times before settling into a final order that provided the husband would receive $100,000 per year in alimony, plus 33% of the wife’s annual income between $300,000 and $600,000. Thus, if the wife earned $601,000 in a given year, the husband would receive $200,000 in alimony, and the wife would retain $401,000 of her earnings for herself.
In 2013, the wife filed a complaint for modification seeking to terminate her alimony obligation due to her reduced income. In 2015, the wife amended her complaint for modification because the newly enacted Massachusetts Alimony Reform Act (ARA) provided that the duration of alimony after an 18-year marriage should not exceed (roughly) 14 years. Having paid alimony to the former husband over 14 years, since 2001, the ARA suggested that the wife’s alimony obligation should be over.
The parties’ trial took place in the Middlesex Probate and Family Court and was presided over by Hon. Patricia A. Gorman. After trial, Judge Gorman entered a Judgment of Modification which terminated the wife’s alimony obligation as of December 31, 2016. Notably, by entering the termination date entered by the judge actually exceeded the durational limits provided under the ARA. The reason the judge cited for the additional period of alimony? The husband’s poor health.
In addition to terminating alimony as of December 31, 2016, the judge retroactively reduced the wife’s alimony obligation $5,564.80 per month, all the way back to 2013, when the wife filed her Complaint for Modification. The result of this portion of the judgment was that the husband had been overpaid alimony in the amount of $88,592.96 by the former wife. Instead of waiving the overpayment – which was within the court’s discretion – the judge ordered the husband to grant the former wife a mortgage on his home to secure the repayment of the $88,592.96.
The former husband appealed, challenging both the termination of alimony and the order for him to repay the $88,592.96.
Former Husband Entitled to Alimony Beyond Durational Limits of Alimony Reform Act Due to Poor Health?
As we have discussed in many previous blogs, the ARA limits the duration of alimony for Massachusetts marriages of less than 20 years. In Cournoyer, the husband did not contest that the ARA durational limits suggested that alimony should terminate. However, the husband argued that the durational limits should not apply to him due to his poor health. The Appeals Court summarized the husband’s statutory argument as follows:
[T]he [ARA] imposed presumptive durational limits based, in part, on the length of the marriage. Notwithstanding these limits, upon written findings, a judge may find that deviation from the durational limits is required in the interests of justice. G. L. c. 208, § 49(b). Among the potential grounds for deviation, as set forth in G. L. c. 208, § 53 (e) … is the “chronic illness; or unusual health circumstances of either party.”
Ordinarily, a party in the husband’s shoes would need to convince the Appeals Court that the judge failed to extend alimony beyond the ARA’s durational limits because he was chronically ill. However, in an odd twist, Judge Gorman had specifically acknowledged the husband’s chronic illness in her findings. Indeed, as the Appeals Court pointed out, the judge had cited the husband’s illness as grounds for her modest extension of alimony beyond the ARA’s limits to December 31, 2016:
That is precisely what the judge relied upon in extending the durational limit beyond the presumptive termination date. Notably, neither party contests the fact that deviation was appropriate. Rather, Paul contends that the date selected by the judge for termination was arbitrary and not supported by any clear rationale. We agree.
In short, the Appeals Court held that the judge could not have it both ways. Having cited the husband’s chronic illness in her findings to support the extension of alimony beyond the durational limits of the ARA, the Appeals Court held that it was arbitrary for the judge to randomly select the last day of the calendar year to end alimony. If the husband’s chronic illness justified an extension of alimony beyond the ARA’s limits, the Court held, the judge erred by randomly ending alimony on December 31, 2016 without consideration for the same chronic illness.
In the end, the Appeals Court left in place the lower court’s alimony order of $5,564.80 per month – which, it should be noted, was substantially less than the prior order, which provided the husband with a minimum of $100,000 in alimony per year – but vacated the termination date of December 31, 2016.
Perhaps unsurprisingly, after vacating the alimony termination date, the Appeals Court turned a skeptical eye towards the $88,592.96 mortgage that the judge imposed on the husband as security for the overpayment of alimony while the wife’s modification was pending. Because the Appeals Court did not disturb the judge’s new alimony order of $5,564.80 per month, the question was whether the judge abused her discretion in making the $5,564.80 per month order retroactive, back to the original date of filing of the wife’s 2013 Complaint for Modification.
In short, the Appeals Court felt the retroactive order was unfair:
In determining that a retroactive reduction in alimony was appropriate, the judge required Paul to mortgage his assets to ensure that Christine is repaid in excess of eighty-eight thousand dollars. This aspect of the judgment recognized both the illiquid nature of Paul’s assets and his minimal income derived primarily from Social Security disability. “The judge must consider all the statutory factors and reach a fair balance of sacrifice” in establishing alimony. Pierce v. Pierce, 455 Mass. 286, 296 (2009). Based on the vast disparity in the financial positions between Paul and Christine, it was an abuse of discretion to enter a retroactive alimony award and require security for the repayment.
Notably, the Appeals Court’s analysis of this portion of the judgment is somewhat thin. The Appeals Court is ordinarily quite careful about declaring that a lower court judge abused her discretion. There is no question that Probate and Family Court judges have broad discretion in Massachusetts to adjust alimony retroactively. See Binder v. Binder, 7 Mass. App. Ct. 751, 760 (1979) (“A Probate Court has the power to reduce the alimony provisions of its divorce judgment retroactively, as well as prospectively…”). Here, the Appeals Court held that the judge abused her discretion with the retroactive award, but provided few details to support its reasoning.
Women have been outperforming American men in college graduation rates since 1978. By 2014, women accounted for a whopping 55% of all undergraduates enrolled in college. Women also tend to earn higher grades and drop out of college less frequently. According to the Boston Globe, Massachusetts tracks the national trend:
At schools in Massachusetts, as well as the New England region as a whole, the female-male student ratio in the fall of 2014 mirrored the national breakdown: 55 percent to 45 percent.
Despite their superior performance in college, women’s pay continues to lag behind that of men, even when they have equal or better levels of education. When considering these statistics, however, it is important to note that women constituted just 10% of enrollees in professional degree programs as recently as the 1960’s. For baby boomers born in the 1940’s, male educational achievement far certainly outstripped that of women. As baby boomers reach retirement age, however, it is reasonable to expect that woman’s incomes will continue to grow relative to men’s.
In the alimony context, it is important to note that the average pay received by men and women is relatively meaningless. Alimony is all about high earners – not average earners – and there is simply no question that the developments of the last thirty years have created great opportunities for high achieving women to cash in on their educational and professional prowess. Even if just one in four highly paid executives is a woman, the reality is that these select few are likely to face alimony exposure in a divorce if they substantially out-earn their spouse. And with more and more men taking on a greater parenting role, many of the classic arguments in support of alimony – i.e. the spouse sacrificed work opportunities to care for the children, etc. – are increasingly applicable to men.
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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