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Alimony Based On Current Income Not Future Income

December 4, 2017 By Stig Bolgen

On September 25, 2017 the Massachusetts Supreme Judicial Court (SJC) issued a decision in Young vs. Young, 478 Mass. 1 (2017) and the court held that “the need for support of the recipient spouse (here, the wife) under general term alimony is the amount required to maintain the standard of living she had at the time of the separation leading to the divorce, not the amount required to enable her to maintain the standard of living she would have had in the future if the couple had not divorced.” In Young the Probate and Family Court divorce judge had issued a temporary order that the husband should pay $48,950.00 per month in temporary alimony. After contested trial, the trial judge modified the alimony order to instead require that the husband, who had very high annual earnings through a complex compensation program, instead pay 33 % of his annual gross income as alimony – so the amount would change each year (likely increase) as the husband’s income changed. After trial the husband appealed the judge’s percentage based alimony order as inappropriate.

The SJC did not strike down the use of percentage based alimony orders in all divorce cases but that court did find that a percentage based alimony order was inappropriate in Young because the unique circumstances which justify a percentage based alimony award were not present in that case. Traditionally, the three legs of an alimony order are ability to pay, need of the recipient, and a lengthy marriage. In Young the SJC noted that the historical baseline for measuring need is the “marital lifestyle the parties enjoyed during the marriage, as established by the judge…”. Note however that a recipient spouse does not “have an absolute right to live a lifestyle to which he or she has been accustomed in a marriage to the detriment of the provider spouse.” When there are insufficient resources to keep both parties at their marital lifestyle a “fair balance of sacrifice” is appropriate and that typically means “the supporting spouse generally should not be required to pay more than thirty-five percent of the difference between the parties gross incomes.”

Percentage based alimony orders are disfavored by the SJC for at least 4 reasons: (1) They don’t allow the parties to obtain a “clean break” from each other; (2) They present the potential for “continued strife and uncertainty”; (3) They make enforcement of the alimony award more difficult; and, (4) They “may encourage income manipulation” between the employee and their employer to minimize the alimony obligation. Notwithstanding that the SJC disfavors percentage based alimony orders there will still be multiple situations where such orders are completely appropriate and the percentage based order will receive judicial approval. These circumstances include paying alimony (or child support) on a percentage basis for bonus income or stock option income received post-divorce on an “if, as, and when received,” basis. Another legitimate use for a percentage based alimony order is to avoid the need to return to court when a foreseeable change of circumstances can be anticipated at the time of the alimony judgment or when the underlying payment amount includes “cost-of-living” adjustments due to a high inflation rate economic circumstance.

How does Young impact the divorce mediation process? Divorce mediation takes place in the “shadow” of applicable divorce statutes and caselaw. This decision clarifies how standard of living circumstances should be evaluated when mediating parties contemplate an alimony payment amount. It also clarifies when percentage alimony orders are both necessary and appropriate i.e. to address variable bonus or stock option income post-divorce, etc. The parties in Young likely spent six figures in legal fees before the SJC weighed-in on their alimony dispute – as our legal system allows them to do. In divorce mediation alimony disputes can be resolved easily in a low-cost process with a fair outcome for both parties. How does that sound?

Filed Under: MA Divorce Law

MA Supreme Judicial Court Clarifies Alimony Law

January 20, 2017 By Stig Bolgen

The Massachusetts Supreme Judicial Court (SJC) recently clarified some provisions of the 2012 Massachusetts Alimony Reform Act (the “Act”) in a November 23, 2016 decision in the case Clifford E. George vs. Jacquelyn A. George (SJC-12059). Clifford and Jacquelyn were divorced in 2002 via a mutually agreed upon Separation Agreement after a 12-year marriage. The Separation Agreement provided that Clifford would pay Jacquelyn $1800/month as alimony. In 2013, Clifford filed a Complaint For Modification of the divorce judgment Separation Agreement which sought, among other things, to modify his alimony obligation based upon Section 49 (b) of the Act. Section 49(b) of the Act provides that general term alimony for marriages lasting more than 10 years but fewer than 15 years shall not continue for “longer than (seventy) percent of the number of months of the marriage,”. Massachusetts General Laws chapter 208, section 49 (b) (3) provides a process by which a judge can deviate from the alimony durational limit when doing so is “required in the interests of justice”. The Act also provided a phase-in schedule for when Complaints For Modification based on the new durational limits could be brought for alimony obligations that predated the effective date of the Act (March 1, 2012).

The George v. George modification action was heard by Judge Jeremy A. Stahlin at the Suffolk Probate and Family Court. Judge Stahlin denied Clifford’s Complaint For Modification because he found that deviation beyond the durational limits of the Act was warranted. Clifford appealed Judge Stahlin’s decision and the SJC took authority over the appeal.

The SJC affirmed Judge Stahlin’s denial of relief but on the grounds that Clifford’s complaint was filed prematurely (under the Act Complaints For modification of alimony based solely on the applicable durational time limits were to be filed no earlier than March 1, 2015). The SJC used the George case to set forth guidance on how the “interests of justice” standard contained in Section 49 (b) should be applied when determining whether deviation from the Act’s durational time limits is warranted.

The SJC concluded that when disputes of fact arise regarding an alimony payment termination date the trial court must make written findings based on evidence to determine whether the “interests of justice” require alimony payments to continue beyond the durational limits of the Act. The alimony recipient spouse bears the burden of proving by a “preponderance of the evidence” that deviation beyond the presumptive termination date is “required in the interests of justice”. The SJC further clarified that a judge should “evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce.” If factors relevant to the alimony termination date existed at the time of divorce, and those factors persist when a Complaint For Modification is filed, “a judge may properly consider them.” The decision contains an example of this principle, “if at the time of divorce a spouse was disabled and that disability was taken into consideration in setting the initial alimony award, and if that disability persists when the payor spouse files a complaint for modification, the judge may properly consider the impact the disability continues to have on the recipient spouse in determining whether deviation beyond the act’s durational limits is required in the interests of justice.”

The Alimony Bottom Line

The SJC’s decision in George v. George clarifies that divorce court judges will have the ability to deviate from statutory time limits for alimony payments, either at the time of the divorce or at the time the payor seeks to terminate the alimony payments, when the case facts suggest deviation is appropriate and necessary. Chronic illness or unusual or unexpected health circumstances of the alimony recipient are likely to be the most common factors that justify deviation from the time limits. The bottom line of the SJC’s George decision is that a Payor’s alimony termination date can be modified outside of the Act’s time limitations when the payor proves by a preponderance of the evidence that such modification is necessary.

Filed Under: MA Divorce Law

Probate Court Looking At Expansion of Dispute Resolution Options

September 9, 2016 By Stig Bolgen

The Massachusetts Probate and Family Court, which hears cases related to divorce and other family law matters, has proposed changes to its Standing Orders (rules) which would promote greater use of Alternative Dispute Resolution (ADR) case settlement techniques such as mediation, conciliation, dispute intervention, and settlement conferences. The proposed rules are in the public comment process and the public will now have until September 20, 2016 to comment on the possible rule changes.

One of the purposes of the proposed rule changes is to provide a “child-focused” process that is better adapted to cases which involve conflict between parents and care givers regarding children. The Preamble to the proposed rule changes states that a “consistent research finding is that children are harmed when they are exposed to conflict between their parents.” My own experience handling hundreds of divorce cases confirms what the research suggests – a high conflict divorce and parental separation process can have profoundly negative effects on children. The process of battling out a divorce via courtroom litigation correlates with negative effects to children because it is almost impossible for two parents to hotly litigate a divorce case without increasing their children’s exposure to negative conflict. The Preamble to the proposed rule change essentially acknowledges this when it states that the “importance of resolution without trial is reaffirmed.” The proposed rule changes are intended to reduce conflict between divorcing parents and they would apply to all divorce, paternity, and modification cases involving custody or child-related disputes or property division, debt allocation, or alimony disputes.

Proposed Standing Order Xa-16 would facilitate the early settlement of divorce or family law cases by establishing an “Early Case Settlement Process” having the following characteristics: (1) Limited discovery (the process of obtaining documents or information relevant to a case); (2) Limited Motions (a limit of 2 court appearances to obtain a temporary decision or relief from a judge while a case is pending); and, (3) Required participation in a “Settlement Conference” before the court will schedule a Pre-Trial Conference date or a contested trial date(s). The Early Case Settlement Process will be available in cases where both parties agree to utilize it . To participate in the Early Case Settlement Process both parties must make a written request to the court using a court supplied form and both parties must have already complied with certain specified discovery tasks. The discovery tasks which must be completed include the exchange of asset and liability documents, pension documents, deeds, loan applications, appraisals, credit card statements, Social Security statements, tax returns, paystubs, credit reports, and other specified documents.

Proposed Standing Order Xa-16 also includes a requirement for mandatory ADR screening in Hampden, Norfolk, Plymouth, and Worcester counties in all cases involving a contested custody dispute. The proposal defines “contested custody in divorce” as any case where the parties “are not in agreement as to all terms of a parenting plan including legal custody, residential and parenting schedule.” In these cases, the Court will refer the case to an approved provider of court-connected dispute resolution services (as defined by S.J.C. Rule 1:18) before a Settlement Conference or Pre-Trial Conference date is assigned by the Judge. This significant change in court procedures would essentially require that the parties to a child custody dispute participate in mediation/conciliation/dispute intervention before their court case could proceed into the more substantive parts of a litigated child custody case. This watershed change would not require that the case be resolved via ADR but it creates a process where the parties would have to attempt to resolve their child custody dispute via ADR before their contested custody court case could proceed.

In addition to the establishment of an “Early Case Settlement Process” option and required ADR screening for contested custody cases, the proposed rule changes would also require “Settlement Conferences” in all contested divorce and divorce modification cases involving disputes over child custody/parenting, property division, debt allocation, or alimony. The Settlement Conference would be required before the case could be assigned a contested trial date. The Settlement Conference would take place after the parties had completed their parent education course (if applicable) and after discovery had also been completed. Under current Probate and Family Court procedures, most divorce cases cannot obtain comprehensive settlement input from the assigned judge until the date of the Pre-Trial Conference. If the proposed rules are enacted, a divorce case would more or less get settlement assistance from the judge on two separate occasions prior to a contested trial date – at the Settlement Conference date and then again later at the Pre-Trial Conference date. As a practical matter, this change should increase the number of divorce cases that settle without contested trial because the parties will be exposed to substantial input from their judge on what the fair terms of settlement might be.

So what is the bottom line of these proposed changes ? The courts themselves appear to be acknowledging that divorce and family law type disputes are often poorly suited for resolution via the litigation process. Notwithstanding that mediation is growing more popular every day and is being embraced by Judges and court administrators – divorce cases involving physical abuse, significant financial fraud, or criminal type conduct will likely continue to be resolved primarily by the courts – and that is proper and appropriate. But for everybody else, and that is most divorce cases, mediation will be your lowest cost, lowest conflict, and most child friendly process for ending a marriage or addressing a family law issue.

Filed Under: Divorce Mediation

More Changes to MA Alimony Law Possible

May 25, 2016 By Stig Bolgen

On March 1, 2012 the Massachusetts alimony law landscape significantly changed when the Alimony Reform Act took effect. This wide-ranging piece of legislation brought clarification and guidance to most aspects of a Massachusetts divorce case that involved alimony. The legislation clarified how different forms of alimony should be categorized and how alimony payment amounts should typically be calculated based upon the incomes of the parties and the length of the marriage. In addition, the new/revised alimony statute contained guidance on when alimony should typically end (at the obligor’s normal Social Security retirement date) and what should happen if an alimony recipient commences cohabitation with another person post-divorce (the alimony order should be “suspended, reduced or terminated”).

Most attorneys who specialize in divorce and family law appreciated that the 2012 changes to Massachusetts divorce law brought some order to an aspect of divorce that was previously chaotic and driven in large part by the specific preferences of whatever judge had the case. However, the 2012 changes failed to clearly address the matter of whether the time limits on alimony and the cohabitation provisions applied retroactively to divorce cases that were finalized prior to the 2012 changes. The Supreme Judicial Court (SJC) addressed the issue of retroactive application of alimony time limits and the effect of cohabitation in three separate recent cases (Chin v Merriot, Rodman v. Rodman, and Doktor v. Doktor) which in aggregate stand for the principle that the time limits and cohabitation provisions of the new alimony statute apply prospectively and do not automatically apply to divorce judgments entered prior to the date the new law took effect.

Massachusetts House Bill 4034 (HB 4034) has been introduced to address the prior ambiguity regarding application of the new alimony law to cases that were tried or settled prior to the date the new alimony statute took effect. HB 4034 would more or less overturn the SJC’s decisions in Chin, Rodman, and Doktor and the proposed bill would provide that:

  • “An existing alimony judgment which has exceeded the durational time limits… may be modified upon the filing of a complaint for modification…”.
  • “A payor of alimony paying alimony pursuant to an existing alimony judgment may file a complaint for modification … if the recipient is determined to be cohabitating…”.
  •  “A payor of alimony… may file a complaint for modification of the existing alimony judgment if the payor has reached full retirement age…”.

Supporters of HB 4034 argue that the proposed legislation is necessary to give alimony obligors whose cases ended before 2012 the same predictability regarding their alimony termination date that obligors of post-2012 divorces presumably have. In addition, supporters seek to fix an arbitrary outcome whereby alimony obligors may have no remedy if their ex-spouse cohabitates and they divorced before March 1, 2012 but a similarly situated obligor does have the remedy of alimony termination or payment amount reduction when their ex-spouse cohabitates and their divorce took place after March 1, 2012.

Divorce mediation clients have an advantage over courtroom litigation clients because they have a unique opportunity to craft a comprehensive divorce agreement that addresses future oriented divorce details that might otherwise force ex-spouses back into court post-divorce. For example, when will the alimony end and what will happen to the alimony payment if the recipient cohabitates ? A comprehensive mediated divorce agreement that addresses foreseeable future outcomes can protect you against a post-divorce financial uncertainty that undermines the efforts of both parties to properly plan for their respective financial futures.

Filed Under: MA Divorce Law

Shared Physical Custody May Be Better For Children

August 6, 2015 By Stig Bolgen

Social scientists and individuals involved with the divorce process have often debated the pros and cons of shared or joint physical custody arrangements where children reside approximately equally with both parents. Conventional wisdom has suggested that frequent moves between parental households may be stressful for children. However, a study recently published in the Journal of Epidemiology and Community Health suggests that children raised in a shared physical custody environment typically report better psychosomatic health than children living mostly or only with one parent. The study, which relied upon data from a national classroom survey of all sixth and ninth grade students in Sweden, investigated the association between children’s psychosomatic problems and their living arrangements.

Several past studies have established that children with separated parents show “higher risks” for emotional problems and social maladjustment than children raised by cohabitating parents. Children whose parents do not reside together may experience more psychosomatic problems than children brought up in nuclear families. Notwithstanding this situation, children raised in a two-parent, but high conflict, nuclear family also experience higher rates of social or emotional problems. High conflict between cohabitating parents is also a negative for children.

In many western countries, including Sweden where this study took place, an increasing number of post-divorce families have joint or shared physical custody of their children. The study indicated that in Sweden about 30 – 40 percent of the children with separated parents were in a shared physical custody situation. The authors of this study suggest that children having everyday contact with both parents is more important, in terms of stress, than living in two different homes.

So what is the bottom line here? When parents can no longer reside together, a divorce with a shared physical custody outcome where the children spend substantial time in each parent’s household may be the best possible outcome when evaluated from the perspective of the children’s best interests and the children’s post-divorce mental and emotional health.

The divorce mediation process, with its emphasis on cooperation and collaboration, is the best method for getting to a mutually agreeable shared parenting arrangement that secures your children’s emotional health after the parents have split up. When parents cannot cooperate and a contested courtroom divorce process takes place, judges typically will not order shared physical custody. This is because the parents’ participation in a contested custody/parenting case suggests that those parents cannot communicate and cooperate as required to implement a shared physical custody outcome. If you bring your custody and parenting dispute to a judge, the likely outcome is no shared physical custody of the children.

See: “Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?” Bergstrom M, Fransson E, Modin B, et al. Journal of Epidemiology & Community Health 2015;69:769-774.

Filed Under: Divorce Mediation

Why You Shouldn’t Hire A Non-Lawyer Mediator

April 15, 2015 By Stig Bolgen

Two main types of professionals that offer divorce mediation services are family law lawyers and therapists/social workers. A skilled divorce mediator must be comfortable diffusing tense discussions and situations. Sometimes (but not always) trained therapists may have the edge over lawyers in familiarity with this skill. However, you are still better off hiring an experienced divorce lawyer to be your mediator.

Why?

Because divorce mediation is not counseling. Divorce mediation is essentially the negotiation of the dissolution of a marriage “in the shadow of the law.” If a therapist-divorce mediator has no idea what judges do in the particular court where your divorce will be on issues like alimony, child support and property division, he or she will be unable to be very helpful in giving the legal information so crucial to reaching a fair and reasonable result.

Why is a fair and reasonable result of mediation important?

Because, at your divorce hearing the judge will not approve any mediated separation agreement that the judge does not feel is fair and reasonable. Thus, a couple could spend many hours and alot of money on a mediated separation agreement that a judge in that court would never approve. An experienced divorce lawyer would know how to prevent this big problem.

The other big reason why hiring an attorney-mediator is the better choice is because the mediator also drafts the “separation agreement”. The separation agreement is a legal contract and it is very important to have it written correctly. If a non-lawyer drafts this contract, there will likely be mistakes and things that are unclear. Any problems with the agreement can become unfixable or very expensive to fix after the divorce judgment incorporates it.

In short, if you are looking for marriage counseling to save the marriage you should hire a therapist. If you are looking for help in getting divorced, the best choice is a lawyer-mediator.

Filed Under: Divorce Mediation

Divorce in Massachusetts

There are two ways to get divorced: the "easier" way and the hard way. The “easier” way to divorce is when the parties can get to a “separation agreement”. This is a document which deals with property division, alimony, child custody and child support. When a couple reaches agreement in mediation, a judge is involved only at the end of the process to make sure the agreement is fair and reasonable.
The hard way to get divorced is for each spouse to hire a divorce lawyer and spend thousands of dollars on legal fees for a contested divorce case. The divorce could take a year or more and the process can create unnecessary conflict. The parties could end up with an outcome decided by a judge and sometimes neither party likes that outcome.

Read More

Articles

  • Alimony Based On Current Income Not Future Income
  • MA Supreme Judicial Court Clarifies Alimony Law
  • Probate Court Looking At Expansion of Dispute Resolution Options
  • More Changes to MA Alimony Law Possible
  • Shared Physical Custody May Be Better For Children

Contact Us

Stig Bolgen, Esq.
Bolgen & Bolgen
110 Winn Street, Suite 204
Woburn, MA 01801
Phone: 781-938-5819
Fax: 781-938-5819
stigbolgen@bolgenlaw.com

Copyright © 2018 Bolgen & Bolgen. All rights reserved. These materials have been prepared by Bolgen & Bolgen for informational purposes only and are not legal advice. The material posted on this website is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel.