In many cases involving alimony, the court orders a party to pay alimony at the time of divorce. In some cases, a court may modify alimony after the divorce — either increase, decrease, or altogether terminate alimony. To prevail on an alimony modification, the plaintiff must show there has been a material change in circumstances since the last related judgment in the case. If a court grants an alimony modification after a divorce, when does the clock begin to tick on the durational limit for alimony? Does it begin at the time of the original divorce judgment? Or, on the date of the modification judgment providing for alimony?
The Massachusetts Appeals Court decided this issue in the recent case of Clemence v. Sklenak.
In 2017, the husband and wife divorced after thirteen years of marriage. The divorce judgment incorporated the parties’ separation agreement. In the separation agreement, the husband waived past, present, and future alimony. The agreement further provided that the husband’s waiver represented an agreement that he would receive a larger portion than the wife of the equity in the marital home and additional real property. The “condition” for the husband’s waiver of alimony was the sale of the marital home to an unrelated party for $725,000. Should that sale fall through, the parties would list the property for sale and divide the proceeds equally. Then, the husband would have the right to file a complaint for modification seeking alimony.
Complaint for Modification
The parties could not sell the marital home as planned. In turn, the husband filed a complaint for modification, seeking alimony. After a trial, the modification judge entered a modification judgment. Through the modification judgment, the court ordered the wife to pay $200 per week in general term alimony. Alimony would continue unless a court otherwise modified, terminated, or suspended it; until the first to occur of the death of either party; the husband’s remarriage; the husband’s cohabitation; or, until October 8, 2026. This date is approximately ninety-eight months from the date of the modification judgment.
The wife appealed.
Massachusetts Appeals Court
In her appeal, the wife claimed the modification judge erred in holding that the durational period for alimony began at the time of the modification judgment. She argued that this was an error because the divorce judgment addressed alimony first. Therefore, the durational limit should have commenced at the time of the divorce. The Massachusetts Appeals Court sided with the wife on this issue.
Appeals Court Reasoning
“[W]here the separation agreement was incorporated and merged into the divorce judgment, and contained express waivers of past and present alimony, and the reservation of the right to seek future alimony, the divorce judgment was the initial alimony award, and any subsequent request for alimony should be treated as a complaint for modification,” the court held. In this case, the parties’ agreement to waive alimony was essentially the equivalent of a “zero alimony award” for purposes of the durational limits, the court noted.
Moreover, further evidence that the parties’ divorce agreement acted as a general “zero alimony award” was the condition the parties set regarding the sale of the marital home. In essence, this condition was “the functional equivalent of a stipulation to a material and substantial change in circumstances,” the court stated. Had the marital home sold according to the conditions, the parties agreed there would be no alimony since the husband would have received a greater share of the sale proceeds.
“Embedded in this agreement is the implicit conclusion that if the sale did not occur as contemplated, the husband would likely have been entitled to alimony based on the disparity in the parties’ incomes, the husband’s need, and the wife’s ability to pay alimony,” the court explained. “When the sale fell through, the husband did not receive a disproportionate share of the proceeds and, therefore, he was entitled to request a modification of the alimony provisions set forth in the agreement.”
The Appeal Court affirmed the order of alimony. However, the court struck out and replaced the alimony termination date. The Appeals Court held the durational limit for alimony began at the time of the divorce judgment.
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