Massachusetts divorce lawyer Jason V. Owens discusses whether the termination of child support following a divorce is grounds for an increase in alimony.
UPDATED 2/22/17 – Following a divorce, can a former spouse seek an alimony order after child support has terminated? The answer: it depends on several factors. Assuming the parties resolved their divorce through a separation agreement, the first question is whether the agreement left open the possibility of a future request for alimony. The next question is whether the spouse seeking alimony is still eligible for alimony under the Massachusetts Alimony Reform Act at the time that child support terminates. The third question is whether the financial and life circumstances of the parties support the entry of an alimony order at the time of the request. Finally, one must consider strategic and procedural issues, that may weigh on a judge’s decision, such as how much time has passed since the parties were divorced, and how long a former spouse might be entitled to alimony should an order enter.
What Does the Separation Agreement Say about Future Alimony?
Whenever Massachusetts spouses enter a divorce agreement, there can be tension between the immediate rights of the parties versus the uncertain, often hypothetical rights and obligations each party might face in the future. Guaranteeing uncertain future rights often comes at the expense of locking in immediate, clearly ascertained benefits that are available at the time of the agreement. Accordingly, a divorce attorney must help the client decide whether protecting uncertain, future rights is worth sacrificing clear, immediate benefits that are available in the present. This is never more true than in cases in when all parties understand that child support will terminate well in advance of the theoretical termination of alimony at a later date.
The first and most question important question one must answer about a Separation Agreement in the context post-judgment alimony is whether the agreement merged or survived with respect to future alimony. In her blog on merging and surviving provisions, Attorney Payne wrote:
The real difference between merger and survival is the modifiability of the provision in question. As a practical matter, the issue of merger vs. survival typically centers on alimony provisions. As stated above, provisions affecting the final division of assets typically survive, meaning they are not modifiable, while provisions affecting the custody and support of children are typically merged, meaning they are modifiable. Alimony is the wild card, where a Separation Agreement must explicitly state whether the issue of future alimony merges or survives. In many agreements in which a party accepts an “alimony buyout” – that is a lump sum payment exchange for waiving future alimony – the parties elect to make the alimony waiver permanent and irrevocable, by inserting language about the waiver surviving the judgment of divorce. In most cases in which the parties agree that alimony will be paid, the parties agree that alimony will merge, meaning the amount, duration and availability of future alimony may be subject to a future Complaint for Modification filed by either party. (Emphasis added).
If the agreement includes a surviving waiver of alimony, neither party may seek a post-judgment award of alimony through a Complaint for Modification. If the alimony waiver merged with the judgment of divorce, then it is modifiable. For merging agreements, the next question is whether the agreement provided any language pertaining to future alimony beyond a simple waiver. Unsurprisingly, a request for post-judgment alimony can be greatly affected by language in a separation agreement that tends to favor or disfavor future alimony. If, for example, the agreement specifically identifies one party’s eligibility for post-judgment alimony, then that party can argue that the parties contemplated a future alimony order in the agreement. Conversely, if an agreement provides that the parties earned approximately the same respective incomes during the marriage, thereby obviating the need for alimony, then a former spouse may have a more difficult time obtaining post-judgment alimony in the future.
Massachusetts Case Law on the Commencement of Alimony after the Termination of Child Support
A recent unpublished opinion of the Appeals Court, Baldinelli v. Mayer (2015) sheds a little light on this uncertain topic. In Baldinelli, the parties were divorced in 2008 following a 25-year marriage. Their Separation Agreement provided that husband would pay significant child support to wife – along with a modest alimony order of $69 per week. In 2013, the wife “sought an increase in the husband’s alimony obligation on the grounds that the child support payments had ceased as a result of the children’s emancipation …” After a trial, the probate and family court judge increased husband’s alimony obligation from $69 per week to $350 per week. Husband appealed the decision.
The Appeals Court in Baldinelli examined the parties’ Separation Agreement carefully. Under the Agreement, alimony was modifiable; however, the Agreement did not specify what might justify a future increase in alimony. On appeal, husband argued that the children’s emancipation was easily anticipated at the time of the divorce. As such, husband argued, the occurrence of this predictable event was not the kind of “change in circumstances” that warranted a future increase in alimony.
The Appeals Court disagreed, addressing husband’s argument as follows:
The husband makes a related claim that modification of alimony was not warranted because the termination of child support payments was foreseeable. The judge did not base her decision on this factor alone. Rather, she considered the wife’s efforts to become self-supporting, the extraordinary and unexpected expenses that she had incurred, and the substantial efforts she had made to cut discretionary expenses, as well as the reduction in life-style occasioned by the loss of the child support payments. See Downey v. Downey, 55 Mass. App. Ct. 812, 816-818 (2002). The fact that the separation agreement specifically permitted modification of alimony suggests that the parties foresaw the interrelated nature of child support and alimony, and intended to permit precisely this type of modification where warranted. (Emphasis added.)
The last sentence is bold because it represents an important principle. It suggests that a divorce agreement that includes a clear declaration that future alimony is modifiable in the future can sufficiently a party’s right to seek a future alimony when child support terminates following the emancipation of the children. More generally, the opinion suggests that the termination of child support may constitute a “substantial change in circumstances” that warrants an increase in alimony. However, the opinion also illustrates the difficulties of seeking alimony after child support ends. The Court suggests that termination of child support, alone, may not be enough to warrant alimony; the wife in Baldinelli was also required to detail her job seeking efforts, attempts to decrease spending, and life style reductions arising out of the lost child support. Moreover, the fact that a trial and appeal was required at all illustrates the risks inherent in ambiguously worded provisions.
Had the wife bargained for an automatic increase in alimony at the time of the divorce, perhaps the modification would been unnecessary. However, striking such a bargain would have almost certainly required the wife to sacrifice some of the immediate benefits she received under the Agreement, such a generous child support order, in exchange for alimony benefits that would not have vested for years. In many cases, it is more logical for a party to maximize his or her present rights, while leaving less certain future rights undefined. As Baldinelli illustrates, pursuing such future rights remains possible, even when ambiguities exist, but obtaining the rights in question may require substantial litigation when the parties return to court.
The Baldinelli decision was based on an earlier Appeals Court decision, Downey v. Downey (2002). In Downey, the Court allowed a former wife’s request for alimony following the termination of child support, identifying the loss of child support as a valid and specific basis for seeking alimony after the divorce:
In issuing the modification judgment, the judge set forth a rationale which, in summary form, indicated (a) that she had given due consideration to the parties’ agreements (and the wife’s retention of the right to seek alimony upon emancipation of the youngest child); (b) that even in the absence of the 1991 agreement, the loss of child support income to the wife in the amount of $14,300 a year constituted a change in circumstances sufficient to warrant consideration of her claim; (c) that although the wife’s income had increased since the divorce, it had never been sufficient to allow her to provide adequately for her own needs; (d) that the wife should not be required to deplete her own assets in order to maintain herself; and (e) that the wife required alimony in the amount of $275 a week to meet her needs and the husband had the ability to make that payment. (Emphasis added.)
Is the Spouse Still Eligible for Alimony Under the Alimony Reform Act at the time of the Modification?
In 2011, Massachusetts enacted the Alimony Reform Act. Among its features were limits on the duration of alimony based on the length of the parties’ marriage. For example, under the Act, alimony is payable for 6 years following a 10 year marriage. Following a shorter marriage, alimony has a shorter duration. Following a longer marriage, the duration is longer. It is important to understand: the durational limit on alimony generally begins running on the date of the Judgment of Divorce, even if a spouse is receiving only child support (and not alimony) at the time of the Judgment.
Attorney Levy recently covered this issue in her blog, When Does the Clock Start Running for Durational Alimony in Massachusetts? In her blog, she wrote:
Back in 2014, the Holmes decision resolved an important question about durational alimony in Massachusetts. Under the ARA, the “length of the marriage” is defined as the date of the legal marriage to the date of service of a complaint for divorce. Notably, the ARA does not measure the length of the marriage based on the date of the marriage until the date of the divorce. Because of this, questions arose about when the clock should start ticking on durational alimony. Should the durational clock start when the complaint for divorce is served? Should it start upon the entry of a temporary order for alimony? What about future alimony ordered through a Complaint for Modification? Should the alimony clock start ticking at the judgment of divorce or some other date?
With this in mind, a party seeking an alimony order following the termination of child support should first check if he or she remains eligible for alimony based on the length of the marriage and the date of divorce. In addition to the durational limits on alimony, partes should be aware that the ARA generally provides for the termination of alimony when a payor reaches federal retirement age, and the reduction or termination of alimony if a recipient begins cohabitating with a new romantic partner. Thus, a party seeking an award of post-judgment of alimony should also consider whether the payor is approaching federal retirement age or if the party has begun cohabitating with a new partner since the divorce was finalized.
Is Rehabilitative Alimony an Option?
Even if durational alimony has expired when child support ends, the ARA seems to provide room for a former spouse to seek up to five years of rehabilitative alimony following the end of child support, where the ARA provides:
If a court orders alimony concurrent with or subsequent to a child support order, the combined duration of alimony and child support shall not exceed the longer of: (i) the alimony or child support duration available at the time of divorce; or (ii) rehabilitative alimony beginning upon the termination of child support.
Under the ARA, rehabilitative alimony is defined as “the periodic payment of support to a recipient spouse who is expected to become economically self-sufficient by a predicted time, such as, without limitation, reemployment; completion of job training; or receipt of a sum due from the payor spouse under a judgment.” There appears to be little case law testing how and when a court might order rehabilitative alimony following the emancipation of the children; however, the statute plainly envisions cases involving “rehabilitative alimony beginning upon the termination of child support”, regardless of the durational limits.
Child Support vs. Alimony in Massachusetts
In Massachusetts, child support for adult children can continue until the 23rd birthday of children enrolled in a post-secondary educational program. (Notably, a child’s attendance at college can affect weekly child support even before the child is emancipated, where a party’s obligation to pay for college can affect his or her rights and obligations regarding weekly child support.)
Child support and alimony are calculated differently. Under the ARA, our alimony order is “capped” at the 30-35% of the difference between the parties’ gross incomes. As such, if a husband earns $120,000 per year and wife earns $65,000 per year, the maximum alimony payable to wife under the ARA would be $19,250 per year ($370/week), taxable to wife as income. In contrast, the Massachusetts Child Support Guidelines would be more generous, paying wife annual child support of $26,624 ($512/week), tax-free to wife.
In the short term, child support is clearly the choice superior for the hypothetical wife in the example above. But what happens when the children are emancipated and child support ends? Would alimony automatically begin? In most cases, the answer is no. Wife would need file a complaint for modification and ask the court to enter an alimony order at that time. Will her future request for alimony be approved? Cases like Baldinelli suggest that the termination of child support can be a reason for alimony to start, but that the individual facts of the case matter.
Lost in the Snow: When Does the Clock Start Ticking on Durational Alimony?
Attorney Levy recently completed a blog, When Does the Clock Start Running for Durational Alimony in Massachusetts? In the blog, Attorney Levy writes the folloing about a recent SJC case, Snow v. Snow (2017):
In Holmes, the Court held definitively that the ARA’s durational clock starts ticking on the date that the judgment of divorce enters. Period. For practitioners, the Holmes decision was pleasingly clear. Even though the “length of the marriage” is defined as the date of marriage to the date of service of the complaint for divorce, the time limit for receiving durational alimony starts running only upon the final judgment of divorce. …
In Snow, the SJC appeared to walk back the Holmes rule, holding that the durational clock on the former Wife’s alimony should start ticking after the judgment of divorce, starting on the date that Hon. David J. Dacyczyn of the Berkshire Probate and Family Court allowed the former Wife’s Complaint for Modification seeking post-divorce alimony.
Snow introduces uncertainty into cases in which a probate and family court judge (or separation agreement) failed to consider alimony at the time of the divorce. However, most separation agreements will probably provide sufficient clarity on alimony to prevent a party from filing a post-judgment complaint for alimony (following the Snow rule), rather than a complaint for modification (following the Holmes rule). For divorces that ended after a trial, or upon one party’s failure to attend a hearing, the Snow decision may be a source of greater anxiety.
In short, the SJC held in Snow that the durational limits for alimony may not begin at the judgment of divorce if the judgment or agreement did not consider alimony at the time of judgment. Most divorce agreements consider alimony adequately enough to anchor the start of durational alimony at the judgment of divorce. However, for agreements and judgments that do not contemplate alimony, Snow provides another potential avenue for a former spouse to seek alimony following the termination of child support.
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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.