Now Leaving Massachusetts – The Impact on Alimony

As a life-long Massachusetts resident, I find it hard to understand people who move to Massachusetts from warm climates. While my colleague, Jordan Bowne, recently suggested that fall is a great time to be in Massachusetts, we all know what comes after fall. Here are some words and phrases that come to mind when I think of winter in Massachusetts: snow, sleet, freezing rain, black ice, frozen pipes, ice dams, blizzard conditions, polar vortex, school cancellations, wind chills below zero, thundersnow… Should I go on? After spending hours digging out and then placing a beach chair on the side of the road as a “space-saver,” it might occur to some people that a beach chair could be put to better use in a warmer locale. If you were divorced in Massachusetts but have since moved to a place where your beach chair is only used at the beach, what state has jurisdiction to enforce or change the alimony provisions in your divorce agreement?

Modification: Alimony provisions that merge into a Judgment of Divorce can be changed upon a showing of a substantial and material change in circumstances. When that occurs, a party seeking to change the alimony terms needs to file a Complaint for Modification. A Massachusetts Probate and Family Court can modify an alimony award only when the court has personal jurisdiction over both parties at the time of the filing of the Complaint for Modification. If both parties have stayed in Massachusetts to brave another winter, then Massachusetts has jurisdiction. If the defendant moved out of Massachusetts, then it is necessary to look to the long-arm statute to determine if Massachusetts can exercise jurisdiction. Pursuant to M.G.L. c. 223A, sec. 3(h), a court may exercise personal jurisdiction over a person who was subject to the jurisdiction of the court when the original order entered, and the person seeking the modification resides in Massachusetts when the modification action is filed. So, if the defendant took his beach chair and left, but the plaintiff is holding on to her shovel, then Massachusetts has jurisdiction over an alimony modification matter. But, if both parties have traded in their four-wheel-drive vehicles and driven their convertibles to live in other states, then Massachusetts does not have jurisdiction. In such a case, the plaintiff will need to go to the state where the defendant now lives in order to seek a modification.

Contempt: If a party to a Massachusetts divorce has failed to comply with the alimony provisions of the divorce agreement, a Complaint for Contempt can be filed to enforce the terms of the agreement. Again, the Massachusetts Probate and Family Court can enforce an agreement for alimony only when the court has personal jurisdiction over both parties at the time of the filing of the Complaint for Contempt. If both parties continue to reside in Massachusetts (falsely believing that it will be a mild winter this year), then Massachusetts has jurisdiction to hear a contempt action. If the defendant grew tired of shoveling off her roof and moved out of state, pursuant to M.G.L. c. 223A, sec. 3(h), a court may exercise jurisdiction over that non-resident defendant regardless of where the moving party (the plaintiff) lives at the time the contempt action is commenced. In other words, while a plaintiff has to live in Massachusetts to file a modification action, that is not the case in a contempt action. A court in Massachusetts has jurisdiction to hear an alimony contempt action if the court had jurisdiction over both parties when the alimony order entered and notwithstanding the fact that both parties threw away their winter coats and moved away.

I’m dreaming of a white Christmas, but I also hear Key West is nice this time of year.

Until next time.