Battle Lines Drawn on Alimony Reform in MA State Senate
Massachusetts divorce lawyer Jason V. Owens reviews the current debate over alimony reform in the Massachusetts state senate and the SJC.
Attorney Jason V. Owens
When we last checked on the progress of H 871 (“An Act Reforming Alimony in the Commonwealth”), the bill had secured 38 co-sponsors in the house and senate, and was proceeding towards debate in legislative committees. Since our February update, the bill has received yet another new number, H 740, and has advanced to the Joint Committee on the Judiciary. Notably, the Committee is chaired by Rep. James M. Cantwell (D-Plymouth), who originally presented the bill with Rep. Mike Connolly (D-Middlesex).
Like its predecessors, H 740 would amend the Alimony Reform Act (ARA) of Massachusetts, passed in 2011, by retroactively applying those “ARA provisions calling for the reduction or termination of alimony when a payor reaches retirement age, or a recipient cohabitates with a new partner, applicable to all Massachusetts alimony orders, including those entered before 2012.” Because the bill would directly modify the ARA, supporters have dubbed the bill the Alimony Re-Reform Act (ARRA).
Proposed Bill Would Make Retirement and Cohabitation Provisions of ARA Retroactive to Pre-2012 Alimony Orders
When the ARA was originally rolled out in 2012, Probate and Family Court judges across Massachusetts applied the Act’s modification provisions retroactively, meaning that even alimony orders entered before 2012 were subject to reduction or termination if the payor reached retirement age or the recipient cohabitated with a new romantic partner. However, in 2015, the Massachusetts Supreme Judicial Court (SJC) held that the retirement and cohabitation provisions of the ARA could not be applied retroactively. In other words, the SJC held that if the parties were divorced before the ARA’s effective date in 2012, then the payor reaching retirement or the recipient’s cohabitation could not be grounds for reducing or terminating alimony for these parties.
In its 2015 opinions, SJC cited flaws in the wording of the retirement and cohabitation provisions of the Act, holding that these provisions could not apply to pre-2012 orders. However, the SJC held that other parts of the Act could be applied retroactively, such as the durational limits on alimony for marriages of less than 20 years. The result has been a mish-mash of different results for similar parties in alimony modification cases. For example, under current law, if parties were divorced before 2012, but were only married 19 years, then the ARA’s durational limits on alimony for marriages of less than 20 years apply, meaning the obligor could file a complaint for modification seeking to terminate alimony under the ARA after 15 years of alimony. However, if the same parties were married 20 years (instead of 19 years), then the obligor would not be able to modify alimony upon reaching federal retirement age (or if the recipient cohabitated) under the ARA. For parties divorced after 2012, all of the ARA’s provisions apply, creating a third set of rules in alimony modification cases.
Although the SJC decisions were controversial, critics have also set their sights on the Massachusetts legislature. In its 2015 decisions, SJC largely acknowledged that the legislature may have meant for the retirement and cohabitation provisions to be retroactive, but that the wording of the retirement and cohabitation provisions needed corrections to fix sloppy drafting. Instead of making the changes suggested by the SJC, the legislature has allowed the issue to founder for two years, leaving the flawed language in place despite the SJC’s guidance. The result has been different sets of rules applying to similar parties in alimony modification cases in Massachusetts.
Opposition to New Bill from Senator Cynthia S. Creem
With 38 co-sponsors, the bill to revise the ARA’s language is presently working its way through the Massachusetts legislature. An opponent of the bill Sen. Cynthia S. Creem (D-Middlesex and Norfolk), sits on the Joint Committee on the Judiciary, where the bill is presently under review. Creem, who voted for the original ARA back in 2011, has recently made headlines for her opposition to the new bill in a recent story by WBGH:
When you ask people why, one person comes up repeatedly — state Sen. Cynthia Creem.
Back in 2011, when Creem co-chaired the Legislature’s Judiciary Committee, she called the Alimony Reform Act a “good plan.” But today, she says she always had concerns about its scope.
“To go back and change things, without giving you an opportunity to open up the whole case, is not fair,” Creem says.
“I never was never sure that it was a retroactive bill, even though I voted on it, because I never felt that was necessarily constitutional.”
In a recent email to supporters, Stephen K. Hitner of Mass Alimony Reform criticized Creem’s about face, writing:
As to be expected, Senator Creem has a different perspective on whether or not the Alimony Reform Act of 2011 applies to all modifiable pre-2012 divorces. She states in her interview that she did not fully understand what she was voting for, and what she praised when the Act went up for a Senate Vote.
Certainly, Creem’s position — that she voted for a bill she never understood nor felt was “necessarily constitutional” — seems problematic from a basic legislative perspective.
Reform Opposition’s Argument: a Deal is a Deal
The main argument advanced by Cream and other adversaries of the new bill is that pre-2012 divorce agreements should be exempted from the ARA, because former spouses entered such agreements without knowing that the ARA would limit alimony in the future. Roberta Rodman, a plaintiff in one of the 2015 SJC decisions, presented the argument to WBGH as follows:
“My divorce was several years before this act went into effect, and I feel I should not be penalized for something new,” she says. “Had I known when I got divorced and I was doing this agreement, had I known what was coming ahead of me, I would have asked for different things.”
Rodman’s argument is based on the theory that a spouse who made an agreement prior to 2012 relied on the current state of the law at the time, and that he or she would have “made a different deal” if they had known alimony would be limited. Notably, the SJC decision ruling in favor of Rodman focused far more closely on the flaws in the Act’s statutory language than the argument Rodman now makes, which is based on common law concepts of reliance on contracts.
Alimony Law Prior to the ARA: Far from Certain, Constantly Changing
Critics have identified two weaknesses in Rodman’s reliance argument. First, every pre-2012 alimony order affected by the SJC decisions was modifiable at the time it was entered, by agreement of the parties or pursuant to Massachusetts law. In other words, Rodman knew that the alimony order could be modified by a material change in circumstances at the time she entered the agreement. Prior to the ARA, an alimony payor could file a complaint for modification and argue that advancing age, health problems, family changes and/or lack of available employment were grounds for modifying alimony. In other words, any alimony recipient in Rodman’s position would be well aware that his or her alimony order could be modified based the advancing age of the alimony payor. Rodman’s claim — that she “would have asked for different things” — if she knew the ARA were coming seems to ignore the fact that Rodman was well aware that her former husband’s advancing age would probably form the basis for the reduction or termination of alimony, regardless of the ARA.
The second criticism of Rodman’s argument is slightly more technical. Prior to the ARA’s passage, Massachusetts law already provided that an alimony order like Rodman’s could be modified if the payor showed “a material change of circumstances since the entry of the earlier judgment” had occurred. The changes justifying modification under the pre-ARA law included changes in the age, health, occupation and employability of the paying party. Indeed, the most common grounds for terminating alimony before the ARA was simply that the payor grew too old to work and earn the income necessary to keep paying alimony.
More importantly for this discussion, before the ARA there was no statutory definition for what constituted a “a material change of circumstances” that would warrant a change in alimony. The definition consisted solely of judge made law, which was constantly adjusted as new decisions by the SJC and Appeals Court were announced, changing the legal standard as they arrived. For example, in Pierce v. Pierce (2009), the SJC held:
A support provider’s retirement from employment is a career change that, depending on the support provider’s age, health, and occupation, may constitute a voluntary, good faith career change that will justify a probate judge’s decision to rely on the support provider’s actual, rather than potential, income in deciding whether (and by how much) to modify an alimony judgment.
The Pierce decision, and opinions like it, instantly changed the basis for modifying the alimony orders for spouses like Rodman. If the Pierce ruling was advantageous, Rodman’s former husband could have used the decision to immediately file a Complaint for Modification that relied on the Pierce holding to seek a modification. The fact that the Rodman alimony agreement was entered before Pierce became law would be no defense. Indeed, attorneys for former spouses like Rodman were duty bound to tell their clients that the grounds for modification of alimony in Massachusetts were a constantly shifting slope, with new decisions — like Pierce — constantly coming down and changing the legal standard for modification. The one thing that former spouses like Rodman could rely on before the ARA was that the law surrounding modification could change at any time, based on SJC and Appeals Court decisions, and that a reduction or termination in alimony could be the result at any time.
The legal standards for the modification of alimony in Massachusetts were constantly changing prior to the ARA, as judge-made law periodically tweaked the law in one direction and the next. Against this backdrop, Rodman’s claim that the pre-ARA offered a certain or reliable basis for her to receive future alimony continuously, despite her former husband’s advancing age, rings hollow. It is difficult to reconcile this position with a decision like Pierce, in which the Court held, “[v]oluntary retirement at a customary age is simply one factor, albeit an important one, to be considered by the judge in deciding whether to modify the alimony obligation set forth in a divorce judgment.”
Under the ARA, a payor reaching federal retirement age does not require the termination of alimony. Indeed, the statute specifically provides that a judge may extend alimony despite the payor reaching retirement age for good cause show. This begs the question: is the law regarding retirement under the ARA really so do different from the law articulated in Pierce, where the Court described “voluntary retirement at a customary age” as an “important” factor in a judge’s decision to terminate alimony? The ARA emphasizes retirement age as a factor in terminating alimony, but does not require it. How different is this, really, from the decision the Court articulates in Pierce?
Senators Touring State Appear Next in Western Mass
With the new bill pending, members of the public have been meeting with Massachusetts State Senators since January. The last of these Town Hall Forums is scheduled to take place on March 28, 2017 at UMass Amherst. Attendees will include Senator Don Humason, Senator Adam Hinds, Senator Eric Lesser, Senator Jim Welch, and Senate President Stan Rosenberg. Alimony reform is almost certain to be a topic of conversation.
SJC to Hear Three New Cases on Alimony Reform Act
In other news, the SJC is hearing three new cases affecting the Alimony Reform Act (ARA) in the coming days. The cases are:
Van Arsdale v Van Arsdale — This case focuses on whether the provisions of the ARA making durational alimony limits retroactive to divorce judgments from 2012 and earlier is constitutional. The question here concerns whether the retroactive application of the ARA’s durational limits attaches “new legal consequences to events that occurred before” the ARA’s enactment. In plain English, the question is whether divorcing spouses who entered a Separation Agreement prior to the ARA were provided sufficient notice that future alimony could be modified in a manner similar to what the ARA provides. To the extent that the ARA only affects merged alimony provisions — i.e. provisions that the parties knew would be subject to future modification — the Wife in Van Arsdale may struggle to prove that lacked notice of a future termination of alimony under the ARA. Although the ARA tweaked the grounds for termination, the parties were certainly aware that alimony could (and would) be terminated upon a material and substantial change in circumstances.
Popp v Popp — This case also challenges the retroactive application of the durational limits on constitutional grounds. In Popp, the Husband argues that the retroactive application of the durational limits is constitutional because the durational limits are merely presumptive, such that judges are not required to follow the durational limits if a party presents good cause for a deviation. In short, the Husband is arguing that Massachusetts judges are not required to follow the durational limits under the ARA, and because judges have the option of deviation, the ARA has altered the substantive rights of the Wife.
Young v Young — In Young, the Husband appeals a probate and family court judgement granting the wife alimony that fluctuates, up and down, based on the Husband’s annual bonus. In Hassey v. Hassey (2014), the Appeals Court reserved a judgment containing a similar self-modifying alimony order. Where the SJC is the highest court in the land, of course, it is not obligated to following the Appeals Court’s ruling in Hassey. (In any event, the Hassey decision expressed strong disapproval of self-modifying alimony orders, but did not prohibit them in every instance as a matter of law.) Unlike Van Arsdale and Popp, which challenge the fundamental constitutionality of the ARA, Young appears to be a far narrower case that focuses on when courts may enter variable or self-adjusting alimony orders when the obligor’s income arises out of bonuses, commission or equity compensation, such as stock options or RSUs.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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