Interpreting the Alimony Reform Act: Surprising Developments

Alimony Reform ActSince the enactment of the Alimony Reform Act in 2011, there have been many cases which have presented questions regarding the interpretation of the statute. One frequent issue has been whether the Alimony Reform Act was intended to apply to cases which went to judgment before the Act went into effect.   Two specific issues have now been addressed.  Does the Alimony Reform Act apply to someone who was divorced in 2009 and who is seeking a modification of his/her alimony obligation on the basis of their attaining full Social Security Retirement age or due to the payee “cohabitating” as the term is defined in the law?  Following three decisions issued by the Massachusetts Supreme Judicial Court on January 30, 2015, the answer to both questions is no.

In Chin v. Merriot, Doktor v. Doktor and Rodman v. Rodman, the Supreme Judicial Court found that the Alimony Reform Act was intended to apply prospectively, rather than retroactively, except for one subset of divorce cases which went to Judgment before the act went into effect; specifically, those where the alimony orders (1) merged with the underlying Judgment of Divorce and (2) exceed the durational limits for support provided under the act (duration is based on the length of the marriage, calculated on the time between the date of marriage and the date of service on the underlying Complaint for Divorce).

For all other cases which went to judgment before the Alimony Reform Act went into effect, and where a litigant seeks modification of their prior alimony order, the Court will continue to apply the material change in circumstances standard to determine if the requested relief is warranted.  This standard has been that which was in place prior to the enactment of the Alimony Reform Act.  Using the same example as provided above, if you were divorced in 2009, ordered to pay alimony to your ex-spouse and are now seeking to modify your alimony order as a result of your reaching full Social Security retirement age, you will need to demonstrate a material change in circumstances warranting the reduction or elimination of your obligation.  Under the Alimony Reform Act, your right to relief would be automatic.  Under the old standard, you will need to demonstrate to the Court that there is need for a change, for example, as a result of your reduced income, planning for the future on a reduced income, etc.  The relief would not be presumed.  The same holds true for reducing, suspending or terminating alimony based on the payee’s cohabitation.

Please note, as has always been the case, that where an alimony provision in a Separation Agreement survives the Judgment of Divorce, the obligation is not modifiable except upon the showing of counterveiling equities (an exceedingly difficult standard to meet).  The new case law and the Alimony Reform Act do not change this.

This development is somewhat surprising given that much of the impetus behind Alimony Reform was to give relief to those individuals already paying alimony.  While not ideal, these cases do not say that those prior cases/litigants won’t be entitled to relief, just that the old standard will be applied and relief is not presumed.

If you have questions on how the Alimony Reform Act applies to your case, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.

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Vacating the Marital Home During the Divorce

divorce.pngIt can be surprising for a divorce client to learn that both spouses in a divorce may reside in the marital home while the action is pending.  Many people mistakenly believe that once a divorce complaint is filed, one spouse must leave the home as a matter of course.  To the contrary, for one spouse to force the other to vacate the marital home through an order of the Court, they must meet a high standard.

Understandably, it is difficult for two spouses to live together amicably during a divorce.  Many times it is a financial necessity that each knows they must endure.  Other times, spouses will refuse to move out due to their belief that it could put them at a disadvantage in the divorce. Whatever the reason may be, divorcing spouses need to understand that they cannot force their spouse out of the home because of simple annoyance or aggravation.  Living in an unpleasant situation with daily tension will likely not be enough to convince a Court that you should have sole and exclusive use of your home during the divorce.

The best route for one spouse to vacate the marital home would be to do so by agreement. If it is financially feasible, two reasonable parties should determine who will leave and who will stay. The parties should take into account who will be able to afford the home on their own during and after the divorce, and more importantly, how it affects the children, if any are involved.  In most situations, it is in the child’s best interest to stay in the home, or at the very least in the same school district.

Still, some parties simply cannot agree on who should move out. If this is the case, a court will only order one spouse to vacate if, pursuant to M.G.L. ch. 208 § 34B, “the court finds, after a hearing, that the health, safety or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such an order.”  Furthermore, the Court only has the power to order the spouse to vacate for a period of time not to exceed 90 days.  This time can be extended upon further motion.

It is important that a spouse who wishes to file a motion to vacate the marital home understand the complexities involved in such a motion. The moving party must be able to show with specificity how their health or safety (or that of the children) is endangered or how it is substantially impaired.  The ways in which someone’s health, safety or welfare can be impaired is fact specific and is different in every case. It is extremely important to present and prepare this motion and an affidavit properly so that it does not get rejected by the court when, in fact, it should have been allowed.

If you are considering a divorce action and this issue will present itself, you should seek the advice of an experienced family attorney.  Divorce matters can be complex and overwhelming.   This is just one of the many complicated issues that the parties will encounter upon terminating their marriage. Contacting an experienced family attorney is always the best first step.

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Divorce and the Holidays

divorceThe holidays are here-and while it is typically a time of year that we all look forward to and enjoy celebrating with friends and family, it can also feel like a lonely season if you have gone (or are going) through a divorce.

While it is not easy to cope with the aftermath of a divorce, especially if children are involved, there are small steps that you can take to make this time of year as enjoyable as possible.

The following are a few things to keep in mind this holiday season if you are separated or divorced and have children:

  • Don’t set your expectations too high. If those expectations aren’t met, it will only lead to extreme disappointment. Set realistic expectations for yourself and how you will approach the holidays and time spent with your children.
  • If possible, speak with your ex-spouse and come to an agreement on how each of you will spend time with the children.
  • Understand that things aren’t going to be exactly like they were before the divorce. While tradition can be important to parents and children, now is the time to start new traditions. This will create a bit of a “normal” routine for you and the kids to look forward to each year.
  • Keep yourself busy and pre-occupied. Attend work holiday parties, friends’ holiday open houses; catch up with old friends, etc.

Although it may not feel like it now, there is a light at the end of the tunnel. If you are newly divorced, take it one day at a time and continue to stay involved in your children’s lives if you are allowed to do so. The kids may be having a difficult time, especially with the holidays in full swing, but like mentioned before, start new traditions for everyone to look forward to. Each year will get easier.

Divorce matters can be complex and overwhelming. Contacting an experienced family attorney is always the best first step. Please feel free to contact us at: (978) 681-5454 or Click Here to request a consultation.

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