Massachusetts divorce attorney Kimberley Keyes analyzes another SJC decision focused on the “retroactive” application of the Alimony Reform Act to pre-2012 divorce cases.
When it comes to divorce and family law in Massachusetts, the Alimony Reform Act of 2011 (ARA) is the biggest change in recent memory. The law altered how alimony was treated in our state by restricting the duration of alimony based on several factors. The rollout of the ARA has been controversial, however, with recent court decisions restricting how parts of the ARA affect alimony orders that entered by courts prior to the ARA’s effective date on March 1, 2012.
In two recent decisions affecting the ARA, the Massachusetts Supreme Judicial Court (SJC) held that provisions of the ARA that impose durational limits on alimony for marriages of less than 20 years are constitutional, even when applied “retroactively”1We have placed “retroactive” in quotes because it really isn’t fair to call the ARA a “retroactive” statute. In Massachusetts, a party paying or receiving alimony has always had the right to file a Complaint for Modification to increase, decrease or terminate alimony based on a material change in circumstances. In Massachusetts, a Complaint for Modification is a new case based on new facts. In this context, ARA did not “retroactively” change the alimony law in Massachusetts. Instead, the ARA merely tweaked the definition of what constitutes a material change in circumstances for a party seeking to change alimony through a Complaint for Modification. Prior to the ARA, the definition of what constituted a material change in circumstances was constantly changing, as appellate decisions defined and revised the factual scenarios that would justify a change. to alimony orders from before the ARA’s effective date on March 1, 2012. The 2017 decisions answer some questions about how the ARA limits alimony pre-2012 divorces for marriages of less than 20 years. However, many questions remain unanswered about how retirement and cohabitation provisions of the ARA will affect pre-2012 divorces moving forward.
Table of Contents for this Blog
- The Alimony Reform Act: A Basic Primer from 2011 through 2014
- The SJC’s 2015 Decision Trifecta: Splitting the ARA Baby on Retroactivity
- Applying Laws Retroactively: A Constitutional Question
- The Retroactive Application of the Alimony Reform Act
- Van Arsdale and Popp: Testing the Constitutionality of the ARA under Landsgraf
- Current Status of the Alimony Reform Act’s Retroactive Application
The ARA was originally conceived as a response to the phenomenon of so-called “lifetime alimony,” whereby Massachusetts alimony payors were forced to pay alimony to former spouses for years after reaching federal retirement age, in some cases until the day the payor actually died. The ARA sought to address lifetime alimony by limiting how long alimony orders can last in Massachusetts. The crucial – and controversial – parts of the ARA were provisions that presumptively reduced or terminated alimony payments in three situations, as follows:
- Alimony is reduced or terminated if the alimony recipient begins cohabitating with a new romantic partner.2MGL Ch. 208, s. 19(d) defines cohabitation as “recipient spouse has maintained a common household … with another person for a continuous period of at least 3 months. …. Persons are deemed to maintain a common household when they share a primary residence together with or without others”, as further defined six factors set forth in the statute.
- Alimony is terminated if the alimony payor reaches retirement age.
- For marriages of less than 20 years, alimony terminates after a predetermined number of payments based on the length of the marriage (i.e. longer marriages result in a longer term of alimony, shorter marriages result in shorter alimony).
The law passed in 2011 and first went into effect on March 1, 2012. One of the biggest issues that cropped up after its passage was how the Act impacted alimony orders from older divorces – i.e. divorce cases from before the Act’s effective date in 2012. Could former spouses paying alimony from a pre-2012 divorce rely on the ARA to reduce or terminate their alimony obligations through a Complaint for Modification? Or would the Act only limit alimony in new divorce cases that were finalized after the 2012 effective date?
In legal terms, the question was: would the ARA limits on alimony apply retroactively to pre-2012 divorces, or would the ARA’s terms by strictly prospective, affecting only alimony orders entered after the ARA became law? For nearly three years, the answer was clear: the ARA imposed limits on all alimony orders, including those entered before 2012.
Then everything changed in 2015.
As we have covered extensively on this blog, in 2015, the Supreme Judicial Court (SJC) held that the portions of the ARA calling for the reduction or termination of alimony when (a.) an alimony payor reaches federal retirement age or (b.) an alimony recipient cohabitates with a new romantic partner do not apply to pre-2012 divorces. This holding kicked off a fierce – and still continuing – battle that includes the so-called Alimony Re-Reform Act (ARRA), a proposed bill now pending before the state legislature. At bottom, the 2015 decisions meant two of the provisions at the core of the ARA – the retirement and cohabitation provisions – could no longer be used to reduce or eliminate alimony orders from pre-2012 divorces.
However, the SJC’s 2015 decisions did not prevent every part of the ARA from applying retroactively to pre-2012 divorces. The SJC held that provisions of the ARA that limit the duration of alimony for divorces of less than 20 years do apply to pre-2012 divorces.
To summarize, the state of the law after the SJC’s 2015 rulings is as follows:
- For divorces entered after March 1, 2012, all provisions of the ARA apply.
- For divorces entered before March 1, 2012, featuring marriages of less than 20 years, the ARA’s durational limits on alimony based on the length of the marriage do apply.
- For divorces entered before March 1, 2012, featuring long-term marriages of more than 20 years, the ARA provisions calling for the termination of alimony when the payor reaches federal retirement age do not apply.
- For divorces entered before March 1, 2012, featuring marriages of any length, the ARA provisions calling for alimony to be reduced or eliminated when the recipient cohabitates with a new partner do not apply.
In legal terms, the issue of retroactivity – i.e. whether a law applies to events that arose the law was on the books – presents theoretical challenges as old as our legal system.
Applying a law retroactively can be unfair because it forces people to abide by rules they had no way of knowing about before the law took effect. In the context of the ARA, divorcing spouses who entered a final divorce agreement before the ARA became law had no way of knowing that how and when alimony could be terminated would be affected by a future law. Had they known the ARA was coming, they might argue, they would have bargained for a different divorce agreement. Indeed, pre-ARA, Massachusetts law was murky at best when it came to the termination of alimony. Judges effectively decided every alimony modification on a case-by-case basis, with few clear guideposts under the law. In some cases, a judge might find that a payor’s advanced age and reduced ability to work justified an end to alimony. In other cases, judges found that alimony should continue as long as the paying party could still work, which meant alimony could extend well past federal retirement age. In still other cases, judges held that alimony should continue even after the payor was elderly, retired and no longer able to work at all. Every case was different. Arguably, applying the ARA to older divorce agreements – which were reached at a time when there were no fixed limits on alimony – could turn a fair divorce agreement into an unconscionable one.
On the other hand, refusing to apply a law retroactively can create unfair and arbitrary conditions by creating two sets of rules for similarly situated people. For example, is it really fair for one group of alimony payors to see their alimony terminated when they reach retirement age, while an identical group of payors (who differ only by the year they were divorced) operate by a totally different set of rules? Similarly, why should one group of alimony recipients keep receiving alimony for many years longer than another group, when the only difference was the year they were divorced? When a law is not applied retroactively, two cases that are exactly alike can have drastically different results simply because one was arose out events occurring before the law’s effective date.
When it comes to the ARA, the argument in favor of retroactive application includes two additional elements. First, even if parties entering pre-2012 divorce agreements weren’t sure exactly how and when their alimony would end, the parties knew (or should have known) that alimony has always been modifiable under Massachusetts law, and that factors like a paying party’s retirement or a recipient’s cohabitation with a new spouse were often grounds for terminating alimony under the legal standard in effect before the ARA. Second, where the ARA permits judges to deviate from the Act’s termination rules – allowing alimony to continue past the payor’s retirement age when the facts justify a deviation or despite a recipient’s cohabitation – proponents argue that applying the ARA to pre-2012 divorces is not so problematic. After all, the ARA provides judges with broad discretion to extend alimony beyond the Act’s limits.
The framers of the U.S. Constitution were worried about the government enacting criminal laws and then applying the new laws retroactively to target specific people and send them to jail. As a result, the Constitution prohibits ex post facto laws. Since then, the Supreme Court has had a long list of cases that deal with the retroactive application of both criminal laws as well as civil laws. Out of these cases has come the idea that laws are only considered unconstitutionally retroactive if the law “attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Products (1994).
In the Massachusetts alimony context, the constitutional question posed is this: If the ARA merely codified and formalized the same grounds for terminating alimony that judges had used before ARA, and where judges acting under the ARA always have the discretion to deviate from the Act’s rules, would the retroactive application of the ARA to pre-2012 divorce cases really amount to attaching “new legal consequences to events completed before its enactment”?
Despite the general skepticism about applying laws retroactively, following the passage of the ARA, alimony payors with pre-2012 orders immediately began filing requests with family court judges in Massachusetts to modify or terminate their payments under the Act. Without considering whether the Act was unconstitutionally retroactive, the vast majority of Massachusetts Probate and Family Court judges approved the requests. As a result, hundreds if not thousands of alimony orders were terminated under the Act. The assumption was: the Act applies to all alimony orders, regardless of when the divorce was finalized. This assumption continued for nearly three years.
This practice came to a halt on January 30, 2015, when the Massachusetts Supreme Judicial Court issued three rulings dealing with the retroactive application of the Alimony Reform Act – Chin v. Merriot, Doktor v. Doktor, and Rodman v. Rodman. As we have detailed in many of our blog posts, these rulings allowed lifetime alimony to survive by holding that the ARA could not be used to change alimony orders based on payor retirement age or recipient cohabitation for pre-2012 divorce cases.
The three rulings threw Massachusetts alimony practice into disarray by reversing several years of shared understanding about how the ARA should work. The decisions also included a strange twist – although the retirement age and cohabitation clauses could not be applied retroactively, the ARA’s durational clause (affecting marriages of less than 20 years) could be applied to all alimony orders, including pre-2012 divorce orders.
A close read of the three 2015 decisions reveals that the SJC did not strike down the retroactive application of the retirement and cohabitation provisions of the Act based on the U.S. Supreme Court’s Landgraf decision, which prohibits retroactivity for statutes that attach “new legal consequences to events completed before [their] enactment.” Instead, the basis of the SJC’s 2015 decisions was far more mundane: the state legislature had simply failed to include specific language in the ARA to make retirement and cohabitation provisions retroactive. In contrast, the ARA provisions limiting the duration of alimony for marriages of less than 20 years did include retroactive language. Thus, it was a simple drafting error that doomed the retirement and cohabitation provisions – not a grand constitutional argument about these provisions creating new “legal obligations” under the Supreme Court’s Landgraf decision.
In 2016, two cases came before the SJC to ask the question that the Court did not reach back in 2015: is it constitutional to apply any part of the ARA retroactively, where the ARA arguably “attaches new legal consequences to events completed before its enactment” when the Act is applied to pre-2012 divorces?
On May 31, 2017, the SJC held that the retroactive provisions of the ARA are constitutional, where those provisions do not attach “new legal consequences to events completed before [the Act’s enactment.” The main case, Van Arsdale v. Van Arsdale (2017), dealt with an 18-year marriage that ended in a divorce in 1997. Under the parties’ separation agreement, the husband’s alimony payments would continue until either party’s death or the wife’s remarriage. However, following the passage of the ARA, the husband requested a modification of his alimony payments – he wanted them terminated under the Act’s durational limits or, in the alternative, under the Act’s retirement clause because he had retired from full-time employment. The divorce judge, Hon. Mary Ann Sahagian (ret.) of the Essex Probate and Family Court, sided with the husband, and the wife appealed.
The SJC, citing the U.S. Supreme Court in Landgraf, examined whether the ARA created any “new legal consequences” when applied to pre-2012 divorce agreements. If it the ARA created no new legal consequences, then the law would be constitutional. If, however, the Court held that applying the ARA the couple’s agreement created “legal consequences” for the wife that were not present at the time the parties were divorced, then applying any part of the ARA – not just the retirement and cohabitation provisions – would be deemed unconstitutional.
The SJC held that retroactively applying the ARA was constitutional where the ARA’s “durational limits merely create a presumption of termination,” and the recipient of the alimony payments still had “an opportunity to show that the durational limits should not apply.”
According to the court’s logic, because the termination of alimony was only presumptive – and the wife had the chance to convince Judge Sahagian to continue alimony if deviating from the ARA was “required in the interests of justice” – then the ARA did not rise to the level of imposing a new “legal consequence” on the wife compared to the time of the divorce.
The SJC also found no abuse of discretion by the family-court judge in declining to deviate from the durational limits. The court reached a similar conclusion on the same issue in another case issued on the same date, Popp v. Popp (2017). The Popp decision relied directly on the rationale set out in Van Arsdale.
In the end, the Van Arsdale case untangled only part of the confusion surrounding the ARA’s application to pre-2012 divorces. Under the decision, the ARA’s provisions limiting the duration of alimony for divorces less than 20 years continues to apply to pre-2012 divorces. Further, if the legislature were to fix its drafting error and make the retirement and cohabitation provisions of the ARA retroactive, Van Arsdale suggests such changes would be constitutional. But this only matters if the state legislature fixes the drafting error identified by the SJC in its 2015 decisions. Will that happen? Maybe.
As we have covered extensively on this blog, battle lines have been drawn on the so-called Alimony Re-Reform Act in the state senate. If passed, the new bill that would apply all of the ARA’s provisions – including the retirement and cohabitation provisions – to pre-2012 divorces. Whether this new bill will pass the Massachusetts House and Senate before the current legislative session ends on July 31, 2017 remains an open question.
What seems clear in the wake of Van Arsdale is that the 2017 bill, if passed, would withstand constitutional scrutiny under the same theory articulated by the SJC in Van Arsdale. Like the durational provisions examined in Van Arsdale, both the retirement and cohabitation provisions are merely presumptive. In other words, a judge is not required to modify or terminate alimony based on retirement or cohabitation under the Act. Indeed, Massachusetts judges retain discretion under the ARA to deviate from virtually every provision found in the Act if the facts of the case suggest that a deviation is “required in the interests of justice.” The decision in Van Arsdale suggests that the retroactive application of every provision under the ARA would be constitutional, since judges are never required to modify a pre-2012 alimony judgment in any case.
Of course, surviving constitutional scrutiny is a very different challenge from achieving the passage of a new bill in the legislature. Alimony reform advocates are no doubt pleased by the Van Arsdale decision, but where much of the ARA remains inapplicable for pre-2012 divorces due to the drafting errors in the original bill, the Van Arsdale decision also carries a certain bitter irony. The fact that the retirement and cohabitation provisions could be applied retroactively – if the legislature would only fix the errors – is likely to remind reformers how their true goal remains just beyond their grasp.
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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|1.||↑||We have placed “retroactive” in quotes because it really isn’t fair to call the ARA a “retroactive” statute. In Massachusetts, a party paying or receiving alimony has always had the right to file a Complaint for Modification to increase, decrease or terminate alimony based on a material change in circumstances. In Massachusetts, a Complaint for Modification is a new case based on new facts. In this context, ARA did not “retroactively” change the alimony law in Massachusetts. Instead, the ARA merely tweaked the definition of what constitutes a material change in circumstances for a party seeking to change alimony through a Complaint for Modification. Prior to the ARA, the definition of what constituted a material change in circumstances was constantly changing, as appellate decisions defined and revised the factual scenarios that would justify a change.|
|2.||↑||MGL Ch. 208, s. 19(d) defines cohabitation as “recipient spouse has maintained a common household … with another person for a continuous period of at least 3 months. …. Persons are deemed to maintain a common household when they share a primary residence together with or without others”, as further defined six factors set forth in the statute.|