Alimony Modification and the Emancipation of a Child: Recent Case Law

A recent Massachusetts case addressed the issue of alimony modification where the event triggering a material change of circumstances was the emancipation of a child.

In Flor v. Flor, the parties’ divorce judgment had ordered the husband to pay child support to the wife until their child’s twenty-third birthday. Flor v. Flor, 92 Mass. App. Ct. 360 (2017). The divorce decree also included an express waiver of the wife’s right to seek past and present alimony, but an express reservation of her right to seek alimony in the future.

As the child’s twenty-third birthday approached, the wife brought an action for modification and sought an award of alimony from the husband. The trial judge sided with the wife, ordering the husband to pay $145 weekly payments in alimony. The judge found that the wife’s expenses increased since the divorce while the husband’s expenses decreased; that the wife had not held steady employment since the divorce; that the husband’s financial circumstances were far superior to the wife’s; and that the emancipation of the child, couples with the loss of child support payments, constituted a material change in circumstances.

The husband appealed, claiming that the trial judge abused his discretion. The husband argued two things regarding the lack of a material change in circumstances: “, (1) that any material changes in circumstances are wholly attributable to the wife’s own neglect, and (2) that the loss of child support cannot be viewed as a material change.” Id., at 363.

The Appeals Court sided with the wife, stating that the impact of the wife’s failure to work was too speculative to require the judge to have attributed income to the wife. The court held that the trial judge correctly applied the Massachusetts laws governing alimony modification. “The judge found that the wife’s expenses had increased, and that she was unable to cover those expenses, even with a minimum wage job, whereas the husband enjoyed increased assets, decreased expenses, and had the ability to support the wife,” the Court stated. “The judge thus concluded that the wife had carried her burden of demonstrating that a material change in circumstances existed.” Id., at 364.

The husband further argued that he had a reasonable expectation that his support obligations would terminate at his child’s emancipation, based on the separation agreement. The court disagreed. “[T]he express reservation of the wife’s right to seek alimony in the future renders any such expectation unreasonable on its face,” the Court said. “The agreement reflects a mutual understanding that should circumstances change, the wife would be able to seek spousal support.” Id., at 366.

If you need more information about the Massachusetts alimony law or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

The Health of the Parties in Modification of Alimony

After a judgment has been ordered by the court for alimony there are certain situations where either party may take action to modify the judgment.[1] For a party to be successful on a claim for alimony modification, the party must prove to the court that there has been a material change in circumstances that would render a change in alimony just.[2] A judge will then consider all relevant factors to decide if a modification of alimony is appropriate.[3] One of the many factors the court will consider when modifying an existing order is chronic illness or unusual health circumstances of either party.[4]

Since alimony is modifiable the court has discretion to change the amount being paid in situations where the health of a party affects his or her ability to earn an income. When the party receiving alimony payments suffers from a severe mental illness, courts have been inclined to award a more generous alimony amount than if the party were in good health.[5] The judge will consider how severe the mental illness is and how it affects the receiving party’s earning capacity and ability to secure and maintain employment.[6]

In one Massachusetts case, Vedensky v. Vedensky, because the husband’s severe mental illness prevented him from working at his former level, the wife was ordered to pay an amount that exceeded her expected alimony payment. Similarly, a more generous alimony payment has been awarded in situations where the receiving party’s ability to work was compromised due to a physical illness.[7]

Courts have also been known to decrease or eliminate alimony obligations if the party making the payments is experiencing health issues. Where the health of a paying party results in a significate financial hardship, courts have found this to be a material change in circumstances.[8] The court will consider how the parties health affects their ability to work and subsequently their inability to continue making the payments.[9] After evaluating the status of the party’s health coupled with other significant factors, the court may decrease the payments or terminate them altogether.[10] Ultimately, it is up to the courts discretion to determine if the health of either party results in a material change in circumstances that should result in a modification of alimony.

If you need more information about the Massachusetts alimony law or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Ann. Laws ch. 208, § 37 (discussing situations where a revision of judgement of alimony would occur).

[2] Bercume v. Bercume, 428 Mass. 635, 704 N.E.2d 177 (1999) citing Schuler v. Schuler, 382 Mass. 366, 416 N.E.2d 197 (1981) (laying out the standard for material change in circumstance).

[3] Id.

[4] Mass. Ann. Laws ch. 208, § 53

[5] Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 22 N.E.3d 951 (2014) (showing an example of a time the court did not abuse their discretion when modifying alimony due to mental illness)

[6] Moran v. Moran, 612 A.2d 26 (R.I. 1992) (showing a situation where a mental illness affected a parties ability to earn income.).

[7] Hogan v. Hogan, 822 A.2d 925 (R.I. 2003) (describing a situation where wife suffered from multiple sclerosis, compromising her ability to work).

[8] Parrett v. Parrett, Conn. Super. (Super. Ct. Oct. 14, 2009).

[9] ARTICLE: Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal Support, 46 Suffolk U. L. Rev. 13 citing Parrett v. Parrett, No. FA780159581S, 2009 Conn. Super. LEXIS 2855 (Super. Ct. Oct. 14, 2009) (After a 30 year alimony obligation, the obligor obligation to pay alimony ended due to hi a showing of his severe health problems).

[10] Id. at 7

The Respective Estates of the Parties: a Factor in Alimony

Suppose Grace and Will own a home and have pension plans. Now that they are divorcing, they want to know how a court would impose alimony payments. How do the respective estates of the parties factor into the court’s decision regarding alimony?

Alimony is court-ordered support from one spouse to another.[1] In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments. In Massachusetts, there are four types of alimony[2]: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

In Massachusetts, assets are divided on an equitable basis.[3] A judge’s decision as to what is equitable will not be reversed unless “plainly wrong and excessive.”[4] A court may assign all or any part of the estate of the other, including, but not limited to, retirement benefits, military retirement benefits, pension, profit-sharing, annuity, deferred compensation, and insurance.[5] The definition of estate is broadly defined.[6] As such, Massachusetts courts allow the division of premarital property and post-marital property on a case-by-case basis.[7]

A judge will review the following factors when deciding whether or not to award alimony or for how much the alimony award should be assigned: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage, and other factors the court considers relevant and material.[8]

For Grace and Will, a court will evaluate their income levels and the type of alimony that should be awarded (and if any should be awarded). If a judge determines that an alimony award is necessary, the court will factor the estates of the parties in the award on an equitable basis. Courts will also look to determine whether either of the parties wasted marital assets and will make an award based on equitable, not solely “equal” factors.

If you need more information about the Massachusetts alimony law or about family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.

 

 

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Adams v. Adams, 459 Mass. 361, 371 (2011) (citing to Bowring v. Reid, 399 Mass. 265, 267 (1987))

[4] Adams, 459 Mass. at 371 (citing to Redding v. Redding, 398 Mass. 102, 108 (1986))

[5] M.G.L. c. 208 § 34

[6] Rice v. Rice, 372 Mass. 398, 400 (1977) (holding that an estate is all property to which the party holds title, however acquired.)

[7] Moriarty v. Stone, 41 Mass. App. Ct. 151, 156 (1996) ; Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

[8] Alimony Award Process, https://www.mass.gov/service-details/how-the-court-decides-if-alimony-will-be-awarded-alimony; Mass. Gen. Laws ch. 208 § 34

Modification of Alimony Payments

Kelly and Alex were granted a divorce. The judge also entered a judgment for alimony payments, so that Kelly was ordered to pay Alex $800 per month, along with providing health insurance for Alex.

Kelly has not complied with the health insurance requirement, although she has paid the required monthly alimony amount. Kelly was recently laid off from her well-paying position and now makes about two-thirds of her previous salary. What are Kelly’s options for modifying her alimony payments, especially given that she hasn’t complied with part of the original order?

Alimony is court-ordered support from one spouse to another.[1] In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments. In Massachusetts, there are four types of alimony[2]: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

A judge may decide to change a general term alimony payment if there is a “material change of circumstances warranting modification.”[3] The modification may be permanent, indefinite, or for a finite duration.[4] In addition to needing a “material change of circumstances” Massachusetts Judges also require “clear and convincing evidence” of an extension of an existing alimony order.[5] Massachusetts courts will not order a modification of reimbursement alimony.[6] Additionally, courts will not modify or extend transitional alimony.[7] Depending upon the grounds for doing so, Massachusetts courts may deviate from the duration and amount limits for general term alimony and rehabilitative alimony.[8]

With regard to Kelly, it is important that she speak with her competent alimony law attorney, so that she can request that a modification be made to her alimony order. If she has an order for general term alimony, a judge may enter a modification, so long as she has a “material change in circumstances.” Kelly should not elect to change her payments without a judge’s permission, or else face issues with contempt. It is possible that Kelly will be forced to make additional payments to make up for the health insurance provisions that she owes to Alex.

If you have any questions about issues of divorce, alimony, or property division, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

 

 

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Mass. Gen. Laws. ch. 208 § 49(e)

[4] Id.

[5] Mass. Gen. Laws. ch. 208 § 49(f)(2)

[6] Mass. Gen. Laws. ch. 208 § 51(b)

[7] Mass. Gen. Laws. ch. 208 § 51(b)

[8] Mass. Gen. Laws. ch. 208 § 53

Alimony in Cases of Upward Mobility

In a situation where the spouses are accustomed to an upper-class lifestyle, may one spouse receive alimony based on her expectation that the other spouse’s income will be on an upward trajectory? It’s an interesting issue because there is admittedly some ambiguity in the statute, even after reformed in 2011. Here I, a divorce lawyer, dealing with these issues regularly, assess the SJC’s latest ruling on alimony. So the question is, may a receiving spouse assert that she should be entitled to a higher future alimony amount, as she expected her lifestyle to improve had the couple stayed married? This was the issue discussed and decided by the Massachusetts Supreme Judicial Court in a recent decision.

Young v. Young involved a couple married for nearly 24 years before cross-filing for divorce. Young v. Young, SJC-12240 (March 6, 2017. – September 25, 2017.) After finding that the husband worked as a “high level executive” and received various forms of compensation, and after considering the couple’s affluent lifestyle, the trial judge awarded the wife $48,950 per month in alimony payments. Because of the constantly shifting nature of the husband’s compensation, the judge awarded alimony in the form of 33% of the husband’s gross income to the wife, rather than as a fixed monthly amount.

The trial judge reasoned: “Because the parties lived with the expectation and reality that [the husband’s] bonus level is on an upward trajectory, and given the fact that their needs historically followed this upward trajectory, and due to the complex nature of [the husband’s] compensation over and above his base salary and bonus, it is reasonable and fair in the circumstances to use a percentage for the future alimony particularly given the constantly shifting nature of [the husband’s] compensation.” Young, at 6.

The husband, with lawyer, appealed. In reviewing the case, the Supreme Judicial Court made an important decision regarding the amount of alimony to be paid in cases where a couple’s standard of living entailed an upward trajectory. The court concluded that in cases where the supporting spouse has the ability to pay, the need for support of the recipient spouse was the amount required to enable the receiving spouse to maintain the standard of living he or she had at the time of the separation leading to the divorce, and not the amount required to enable her to maintain the standard of living the couple would have enjoyed in the future, had the couple not divorced.

“Even if the parties enjoyed an upwardly mobile lifestyle for the duration of their marriage, nothing in the language of the statute or our case law suggests that the recipient spouse is entitled, by way of alimony, to enjoy a lifestyle beyond what he or she experienced during the marriage,” the Court noted. Young, at 11.

Moreover, the Court stated that while percentage-based alimony amounts did not automatically run afoul of the law, in this particular case, the judge abused discretion. “Here, the percentage-based award ran afoul of the act and therefore was an abuse of discretion not because of its variable nature, but because it was intended to award the wife an amount of alimony that exceeds her need to maintain the lifestyle she enjoyed during the marriage,” the Court explained. When devising strategy, a lawyer must remember, “There may be cases in which a variable or contingent award is warranted, but such cases are the exception rather than the rule, and must be justified by the special circumstances of the case.”

If you have any questions about issues of divorce, alimony, or property division, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.

Alimony Payments: How Does Retirement Affect Them?

Sally and Bob were married for nearly thirty years, during most of which Sally worked as a doctor while Bob took care of the couple’s children. In 2002, they divorced, and the court ordered Sally to provide $500 per week to Bob. Sally has now reached “full retirement age” and wants to know whether the payments to Bob may end. What is the intersection of alimony payments and retirement?

The answer – as it is in many cases with the law – is: it depends. Specifically, the Court will look at whether any material change of circumstances has occurred.

One of the most financially challenging aspects of any divorce proceeding is the requirement that one spouse provide alimony payments to another spouse. Alimony is court-ordered support from one spouse to another.[1] In 2011, Massachusetts adopted the Alimony Reform Act. The Act, which took effect in March, 2012, governs the type, the amount, the duration, and the termination of alimony payments.

In Massachusetts, there are four types of alimony[2]: (1) General Term alimony (provides regular support for a length of time based on the length of the marriage); (2) Rehabilitative alimony (provides regular support until the ex-spouse is able to be self-sustaining); (3) Reimbursement alimony (provides regular or one-time support for a shorter marriage to make up for costs that the ex-spouse paid in supporting the other spouse); and (4) Transitional alimony (provides regular or one-time support).

Typically, General Term alimony payments are required for the length of time that the marriage lasts. They may end after a specific length of time established by a court. Alimony payments may end, also, when either spouse dies, when the spouse receiving the alimony remarries, or when the spouse paying the alimony reaches “full retirement age.” If the paying spouse continues to work past the retirement age, the paying spouse may not be required to continue to pay more alimony.

Judges may also choose to provide an extension of time for alimony payments, such as if there is a change in circumstances after the alimony payments and length of time were decided or there is clear and convincing evidence given for the need for an extension. This is where the issues of alimony payments and retirement intersect.

A potential issue arises when an ex-spouse reaches the full retirement age and wants to terminate his or her alimony payments to his or her ex-spouse and the judgment order for alimony was established prior to the passing and enforcement of the Alimony Reform Act.

Massachusetts courts have held that for some alimony orders entered before March 1, 2012, the orders must continue past the “full retirement age” unless the paying spouse establishes that a material change of circumstances warranting modification of the alimony order.[3] Courts held that the retirement provision in the Alimony Reform Act applies “prospectively,” and courts have looked toward the Legislature’s intent in deciding that the Alimony Reform Act does not apply retroactively to alimony orders entered before March, 2012.[4]

In the scenario above, for example, without a “material change of circumstances,” a Massachusetts court may hold that Sally is still required to make the $500 alimony payments to Bob.

If you have any questions about alimony or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Mass. Gen. Laws ch. 208 § 48

[2] Id.

[3] Chin v. Merriot, 470 Mass. 527, 528 (2015)

[4] Rodman v. Rodman, 470 Mass. 539, 545-546 (2015)