durational limitsThe Supreme Judicial Court’s recent decision of George v. George provides guidance in applying the durational limits contained in the Alimony Reform Act.

The Alimony Reform Act, which went into effect in March 2012, provides that all alimony awards that predate the Act are deemed “general term alimony.” Under G.L. c. 208, §49(b), general term alimony awards end on a date certain based upon the length of the marriage, except upon a written finding by the court that deviation beyond the time limits is required “in the interests of justice.”  Many alimony  payors who file complaints to terminate alimony based on the durational limit are met with the defense that it is in the interests of justice for alimony to continue beyond the durational limits. In the November 28, 2016 decision of George v. George, the Supreme Judicial Court (SJC) sets forth guidelines for how a judge of the Probate and Family Court should apply the “interests of justice” standard.

The recipient spouse has the burden of proof.

First, the recipient spouse bears the burden of proving by a preponderance of the evidence that deviation beyond the standard termination is required in the interests of justice. Second, the Judge must evaluate the present circumstances of the parties, not the situation as it existed at the time of the divorce. In the George matter, the trial Judge denied husband’s request to terminated alimony by granting a deviation from the durational limit on the basis that had the wife known her alimony would terminate under a durational limit, she would have bargained for a different division of the marital property at the time of the divorce. This logic would prevent nearly all payor spouses with alimony obligations predating the Act from ever gaining the benefit of the durational limits. The SJC articulates in the George decision that such logic is in direct contravention of the Legislature’s intent that durational limits apply to preexisting alimony awards.

Under what circumstances would a deviation from standard durational limits be considered?

The statutory factors to be considered in deviating from the durational limits are those set forth in G.L. c. 208, §53(e):

  1. Advanced age, chronic illness, or unusual health circumstances of either party.
  2. Tax considerations applicable to the parties.
  3. Whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse.
  4. Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance.
  5. Sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties’ divorce.
  6. Significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage.
  7. A party’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor.
  8. A party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance or employment opportunity.
  9. Upon written findings, any other factor that the court deems relevant and material.

What we still don’t know is, what other factors are relevant and material in the interests of justice?  Apparently, we will have to wait for the next decision from the SJC to get the answer to that question.

Until next time,
Robin