On January 30, 2015, the SJC issued three decisions with significant impact on the right to seek modification of an alimony order issued prior to the enactment of Massachusetts’ Alimony Reform Act. The uncodified provisions of the alimony reform act are what the SJC has relied on in determining that only the durational limits on payment of alimony apply to alimony cases decided before March 1, 2012, while the retirement provisions and cohabitation provisions do not. Uncodified provisions of an act express the legislature’s view on some aspect of the act’s operation and are not the source of the substantive provisions of the law. Below are the details on the three cases.
Joe and Dorothy were divorced in 1992 after a marriage of more than 20 years. They signed an agreement in which Joe agreed to pay alimony to Dorothy of $200 per week until her death or remarriage. The alimony provisions of the agreement merged into the Judgment of Divorce, meaning the alimony was subject to a future modification based upon a material change in circumstances.
In 2013, Joe filed a Complaint for Modification of his alimony obligation due to the fact that he was beyond full retirement age (he was then 69 years old), he had in fact retired, and Dorothy was no longer in need of alimony. Joe asserted that the provisions of the new alimony law codified at M.G.L. c. 208, sec. 49(f) applied to him. Section 49(f) provides “general term alimony orders shall terminate upon a payor reaching full retirement age.”
The trial court dismissed Joe’s complaint after trial in light of its determination that the retirement provision of the alimony law do not apply to cases that were settled before the law went into effect. The trial court also determined that Dorothy was still in need of alimony. Joe appealed the trial court’s decision. The SJC agreed with the trial judge and held that the legislature intended the retirement provision to have prospective application only and thus the retirement provisions are not applicable to Joe’s request for modification.
In determining that the legislature intended for the retirement provisions to apply only prospectively and not retroactively, the SJC looked to the uncodified provisions of the alimony reform act. Section 4 of the uncodified provisions of the Alimony Reform Act provides that Section 49 of M.G.L. c. 208 “shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act.” Section 4(b) provides the only exception, which is that alimony judgments that exceed the durational limits shall be modified without any additional material change of circumstances. Section 5 of the uncodified law provides the dates when alimony payors may file their modification actions if the durational limits have been exceeded. Section 6 then provides,
“Notwithstanding clauses (1) to (4) of section 5 of this act, any payor who has reached full retirement age, as defined in section 48 of chapter 208 of the General Laws, or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013.”
The SJC ruled that sections 4, 5 and 6 must be read together, not separately. The words “any payor who has reached full retirement age” apply only to a payor who has reached the durational limit and also reached or will reach full retirement age. The determination that sections 4, 5, and 6 of the uncodified sections of the alimony reform act must be read together defeats the rights of any payor who was married longer than 20 years from obtaining a modification based solely upon reaching full retirement age. Additionally, the durational limits do not apply to a payor who was married longer than 20 years.
While the SJC has declared that this is what the legislature intended when enacting the Alimony Reform Act, one must wonder whether that was truly the intent.
George and Roberta Rodman were divorced in April 2008 after 39 years of marriage, at which time they signed an agreement calling for George to pay Roberta $1,539 per week in alimony until his death, her death, or Roberta’s remarriage. The agreement merged with the Judgment of Divorce, allowing for modification upon a material change of circumstances. In November 2013, at the age of 66, George brought a Complaint for Modification seeking to terminate his alimony obligation based upon his reaching full retirement age pursuant to the Alimony Reform Act. George sought a temporary order terminating his alimony obligation and the trial judge reported the following issue to the Appeals Court: Whether or not G.L. c. 208, sec. 49(f) is to be applied retroactively to judgments entered before March 1, 2012. George asked for direct review by the SJC.
As in Doktor, the SJC held that the Legislature intended that only a claim for modification based on durational limits may (but will not always) apply retroactively to existing alimony judgments. General Laws c. 208, sec. 49(f) (the retirement provision) does not apply retroactively to alimony orders in divorce judgments or separation agreements that entered before March 1, 2012. Therefore, George is not entitled to relief.
In August 2011, after 12 years of marriage, Chester and Edith were divorced. At the time of the divorce, Chester was 67 years old and Edith was 69 years old. Chester and Edith signed an Agreement obligating Chester to pay alimony of $650 per month until the death of either party or Edith’s remarriage. In March 2013, Chester filed a Complaint for Modification seeking to terminate his alimony obligation based upon (1) the fact that he was 68 and thus had reached full retirement age, and (2) the fact that Edith had been cohabiting with another person and maintaining a common household for more than three months. Chester argued that full retirement age is a basis for termination of alimony pursuant to M.G.L. c. 208, sec. 49(f) and cohabitation is a basis for suspension, reduction or termination of alimony pursuant to M.G.L. c. 208, sec. 49(d). Following a trial, the trial court judge determined that neither the retirement provisions nor the cohabitation provisions apply retroactively and Chester’s Complaint was dismissed. Chester appealed.
For the same reasons set forth in Doktor and Rodman, the SJC held that the retirement provisions apply prospectively, not retroactively, and thus Chester could not obtain a modification based solely upon reaching full retirement age. Chester was also already retired at the time of the divorce, so his retirement from employment was not a material change in circumstances.
As to cohabitation, M.G.L. c. 208, sec. 49(d) provides,
“General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.”
Again, looking to the uncodified provisions of the alimony reform act, the SJC held that the legislature’s intent as expressed in uncodified section 4(b) is unambiguous: G.L. c. 208, sec. 48 to 55 (which includes the cohabitation provision) “shall not be deemed a material change of circumstances that warrants modification of the amount of existing alimony judgments; provided, however, that existing alimony judgments that exceed the durational limit shall be deemed a material change of circumstances that warrant modification.”
The result is one that seems strikingly unfair and unreasonable – a payor who was divorced on March 1, 2012 may obtain a reduction, suspension or termination of his alimony obligation if the recipient shares a common household for more than three months, but a payor who was divorced one day earlier cannot obtain that same relief. While the SJC has made clear that this was the Legislature’s intention, the result seems to fly in the face of what the Alimony Reform Act was intended to accomplish.
While the cohabitation provisions do not apply to divorces that took place prior to March 2012, those payors whose spouse is living with someone can still seek a modification based upon a material change in circumstances. If the cohabitation results in a material change in the recipient’s need for alimony, the payor might be able to obtain a modification on that basis.