Hi there,

Earlier in 2016 our Private Client group happily welcomed Ann “Hether” Hetherwick Cahill as an associate. Hether’s practice focuses on probate and family court litigation, including will contests, removal claims, trust disputes, equity actions, guardianship and conservatorship proceedings, and family law. We’re pleased to feature some of her thoughts on the recent developments with the Alimony Reform Act!

Best
Nancy

 

There has been a new development in the recent challenge to the Alimony Reform Act. As a backdrop, the landmark Alimony Reform Act (M.G.L. c. 208, sections 48-55), which went into effect on March 1, 2012, changed alimony awards by:

  1. Creating durational limits for payments.
  2. Terminating alimony when a payor reaches retirement age.
  3. Suspending, reducing or terminating an alimony obligation when a payee cohabitates. The Act allows for deviation from these timeframes based upon the circumstances of the case.

On January 20, 2015, the Supreme Judicial Court issued decisions in three cases (Chin v. Merriot, Rodman v. Rodman, and Doktor v. Doktor) interpreting the Act’s language to hold that the retirement and cohabitation provisions apply only prospectively to judgments entered after March 1, 2012 (the date on which the Act became effective).

Accordingly, for alimony orders entered before March 1, 2012, the alimony payor needs to prove that a material change of circumstance occurred (beyond the enactment of the Act itself) in order to bring an action to modify the alimony obligation. The only circumstance that the enactment of the Act itself constitutes a material change of circumstance, without needing to prove an additional material change in circumstance, is if the payor seeks to modify an existing alimony judgment that exceeds the “durational limits” contained in M.G.L. c. 208, section 49(b). Otherwise, for people divorcing after March 1, 2012, the Act automatically applies, providing guidelines and increased predictability for alimony awards.

Alimony payors were disappointed with the SJC’s interpretation of the Act because they wanted the retirement and cohabitation provisions to apply retroactively, so that the enactment of the Act itself would constitute a material change of circumstance necessary to obtain a modification or termination of alimony. Fast forward to 2016.

On February 19, 2016, Massachusetts Representative John V. Fernandes, Chair of the Judiciary Committee, filed Bill No. H4034 with the Massachusetts House of Representatives. The original text of Bill H4034 is available here. Bill H4034 sought to strike uncodified section 4 of the Act (that includes language that the Act “shall apply prospectively”) and, as part of the revised section, include explicit language that retirement and cohabitation shall be considered material changes in circumstances when ruling on a complaint for modification.

Bill H4034 has been on the fast-track, and a hearing occurred on March 7, 2016, with limited public notice. On March 21, 2016, the Joint Judiciary Committee of the House and Senate issued a new draft, now Bill H4110, which is available here, and reported it out favorably and referred it to the House Committee of Steering, Policy and Scheduling, a secondary committee, where it is currently being reviewed (along with 41 other pending bills).

The only minor difference between current Bill H4110 and prior Bill H4034 is the addition of proposed Section 56 of the Act: “No existing alimony judgment under sections 48 to 55, inclusive, of chapter 208 where the parties have agreed in writing that the existing alimony judgment is not modifiable shall be modified by a court without the consent of both parties.” This applies to alimony obligations deriving from agreements that survive the divorce judgment, and similar language is already contained in current uncodified section 4(c) of the Act. Importantly, besides this one additional section, current Bill H4110 and prior Bill H4034 are identical, meaning that current Bill H4110 still seeks to eliminate the “shall apply prospectively” language and make retirement and cohabitation material changes of circumstance warranting the termination of alimony.

If released from the House Committee of Steering, Policy and Scheduling, Bill H4110 would go next to the House floor for vote and, if successful, passage by the House. Thereafter, Bill H4110 would go to the Senate for review and voting. If the Senate amends the House version, the House and Senate would need to align the two versions. If they align or the Senate passes the House version, the bill would be up for enactment in both branches and, if passed, would go to Governor Baker for his signature.

If passed into law, the amended Act would allow a payor to terminate their alimony obligation upon attaining full retirement age without needing to show any material change of circumstance, regardless of when the parties entered into their divorce agreement. This means that a payor who divorced decades before the enactment of the Act and whose alimony order was indefinite could terminate their alimony obligation based solely upon the enactment of the amended Act. A payee would be deprived of anticipated income during the later part of their life, unless they are able to meet their burden to prove that a deviation is warranted. In some instances payees bargained away an increased share of the marital estate in reliance upon continued support, which could be taken away from them only because of the enactment of the amended Act. Moreover, the amended Act would invalidate the Supreme Judicial Court’s alimony decisions and call into question all of the divorce agreements entered since March 1, 2012.

The time is now to contact your representative in the House to urge them to vote against Bill H4110. If you do not know your House representative, you can find them here. Your representative may or may not realize that the Act is pending because it has not yet made it to the House floor, but you can let them know the status and your thoughts about Bill H4110. If you want to contact a member of the Steering, Policy and Scheduling Committee, the names and contact information for the members are available here. It is not too late to voice your objection to Bill H4110 and the proposed amendments to the Act.

Massachusetts Representative John V. Fernandes, who spearheaded the challenge to the Act, announced on April 14, 2016 that he will not seek reelection for a sixth term in the House. His impending departure as the Chair of the Judiciary Committee makes it all the more important to defeat the proposed amendments to the Act now during this legislative session.