Retroactive application of new alimony rules

House 740, a bill before the Judiciary Committee, would reopen for dispute financial arrangements in many older divorces. Proponents of House 740 seek to apply the legislature’s 2011 Alimony Reform to end or reduce their alimony payments. Opponents rely on those payments. I’ve heard from many on both sides of the question.

The specific policy issue raised by House 740 is whether the retirement and cohabitation provisions of 2011 Alimony Reform should apply retroactively. The 2011 Alimony Reform did include language speaking to the question of retroactivity and that language has been the subject of litigation. In Chin vs. Merriot, 470 Mass 527 (2015), the Supreme Judicial Court concluded that the language applies the retirement and cohabitation provisions only prospectively.  The Court reaffirmed this conclusion in Doktor v Doktor, 470 Mass 547 (2015).  See also Rodman v. Rodman, 470 Mass 539 (2015).

House 740 proposes to revise the transition language of the 2011 Alimony Reform so that the retirement and cohabitation provisions would apply retroactively (to divorces entered before the effective date of the act, March 1, 2012).  Alimony payors would then be able to file for modifications and have them considered under the new rules.

The previous alimony reform in 1974 jettisoned traditional law which assumed men should hold the property in the marriage and defined the following balanced framework for dividing property and setting alimony payments:

In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court . . . shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.

As to cohabitation under the 1974 law, in Gottsegen v Gottesegen, 397 Mass 617 (1986) the Supreme Judicial Court explained:

A divorced spouse has no right to exercise control over a former spouse’s life, and a court may not attempt to create such a right through the alimony provisions of a divorce judgment.  . . .  Nor may a judge, in formulating the divorce judgment, assume that cohabitation . . . would have any effect on the recipient spouse’s economic circumstances and the need for alimony. . . . [But] if the supporting spouse shows that, as a result of cohabitation, the recipient spouse’s economic circumstances have materially changed, then the court may alter or eliminate alimony. However, a judge may not modify a judgment solely on the basis of a finding of cohabitation.

As to retirement under the 1974 law, in Pierce v. Pierce, 455 Mass 286 (2009), the Supreme Judicial Court explained that:

Every supporting spouse is permitted to retire, and an alimony judgment based on the supporting spouse’s earned income eventually will need to be reduced or terminated to reflect the supporting spouse’s diminished actual income after retirement. The supporting spouse, however, is not entitled unilaterally to retire regardless of the financial hardship such retirement may cause the recipient spouse. In appropriate circumstances,  . . .  the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.

The 2011 reforms preserve many of the 1974 factors in setting alimony and also allow substantial flexibility.  However, they provide a much more specific framework of presumptions for alimony payments:

  • They define several different kinds of alimony, some reflecting special circumstances — “rehabilitative”, “reimbursement” and “transitional” alimony — in addition to “general term” alimony for the economically dependent spouse.
  • They tilt the factors in setting alimony to emphasize the employability of both spouses “through reasonable diligence and additional training” and  define quantitative rules for setting the level of general term alimony.
  • They set alimony duration limits in divorces ending marriages less than 20 years of length — requiring that general term alimony payments to an economically dependent spouse should end after a finite period, generally computed as a percentage of the length of the marriage.
  • They require that general term alimony payments should end or be reduced if the recipient spouse cohabits with another person with another for over 3 months.
  • They require that general term alimony payments should end upon the payor reaching full retirement age.  They specifically discourage the kind of reasoning in Pierce v. Pierce, where the court effectively required the payor to postpone retirement so as to continue contributing to the support of the recipient spouse.  They require that in general, “the payor’s ability to work beyond the full retirement age shall not be a reason to extend alimony.”

The purposes of the 2011 reforms were to set clearer guidelines to reduce disputes and to disfavor long term economic dependency.  The reforms were broadly supported and I voted for them.

While the policies in the reforms are generally sound, the question of whether they should be applied retroactively is much harder. Applying the new 2011 rules for retirement and cohabitation retroactively would unsettle an unknown number divorces and lead to an unknown amount of additional litigation.  It would impose litigation costs  on  an unknown number of recipient spouses who would be forced to hire lawyers and defend their settled alimony awards.

It would result in an unknown number of orders being modified.  That number might be small in proportion to the amount of additional litigation — while the new rules add valuable clarity and shift presumptions, they will not necessarily lead to different results.

Finally, litigation costs aside and whether or not new outcomes would result, we should pass retroactive laws only with great caution.  As Justice Kennedy commented in a unanimous opinion of the U.S. Supreme Court,

Retroactive legislation has always been looked upon with disfavor  .  .  .  [citations omitted].

The terms of a divorce — which include not only alimony, but a division of assets, child care and other matters — are woven together through bargaining and/or by judicial rulings to reflect a complex web of circumstances.  Once the terms are set, the parties build their new lives around those terms.   The parties both understand that the circumstances may change and that the terms may be subject to judicial modification as a result.  However, they have expectations about the rules that will be applied in the changed circumstances.  Those expectations shape the original terms.  There is an intrinsic risk of unfairness in changing the rules.

For these reasons, I cannot support House 740 and have referred it for further study, making it unlikely to be enacted in the current legislative session.

Response to comments, February 17, 2018

Thanks to all who have taken the time to comment.

These comments are consistent with the testimony from the group of alimony payors who appeared at the hearing on the bill, which I did and do take very seriously.

I am respectful of these comments and that testimony. I do not doubt that, in some instances, the courts have reached conclusions which are harsh or unfair.

The question presented by the legislation before us is whether we should reopen many of the older alimony cases involving long-term marriages in the hope of justly altering some percentage of them. My conclusion, reflected in this post, is that, on balance, the possible harms from that outweigh the possible benefits on a systemic level.

I recognize that that conclusion may leave some people without adequate recourse and I regret that. Legislation always involves the setting of rules and rules are never perfect.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

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  1. Senator Brownsberger,

    Yes, pre 2011 divorce agreements are settled in most respects but one. That being when can the payments reasonably come to an end? It is undefined.

    Alimony for Life has always been an unreasonable judgement.

    Litigation costs are a reality in any modifiable divorce and will be minimized by this bill’s clearer expectations from legislators to the courts. Or by out of court mediation.

    Retirement age is a reality for everyone and should bring payments to an end. A judge can still deviate when circumstances warrant.

    This bill is most certainly not “chaff” as you put it.

  2. Senator, I appreciate seeing your views here, respectfully I disagree with them and I think your conclusions are flawed. A few points for you to consider.

    1. I believe that everyone involved in the 2011 bill believed that the entire legislation was designed to be applied retroactively. It was only the court that interpreted poor drafting in the bill that led us to this current debacle. The spirit of the bill and retroactive application were clearly understood and intended. I don’t believe you are being entirely genuine on this point in your argument.

    2. Along the same theme, you use arguments in your position that seem flawed logically about the application of retroactive laws. You reference a Supreme Court statement that retroactive laws are viewed dimly. Yet you omit (I think) the fact that the durational limits in the 2011 law are applied retroactively per the current law and the courts interpretation. Early in your memo you reference your support of the prior bill. You then go on to conclude that you can’t support the current bill because the retroactive application is unfair to alimony recipients who bargained under the prior law. In plain English, you support the retroactive application of durational limits but not the retroactive application of retirement or cohabitation clauses. Did you really see a nuance in the clauses that meant retroactive was good for durational limits and not for retirement? No recipient expected a durational limit when they bargained under the prior law.

    3. From a practical standpoint, I wonder what your personal experience is with alimony and divorce in the Commonwealth. The reality is that the cohabitation rule is virtually impossible to apply when the recipient behaves disingenuously, either in prospective or retroactive divorces. Cohabitating recipients maintain separate residences, periodically break up, or otherwise put up a facade of separation in order to maintain alimony. Cohabitation is virtually impossible to prove, and I know people on both sides of this charade, the payor and the recipient. Likewise the retirement concept is equally troubling. Most payors of alimony are lower middle class to middle class, and many alimony payments come from low to low / mid level paying jobs. The income earned and distributed by the payor could be replaced by work from the recipient. In addition, most recipients of alimony post retirement age are no longer responsible for children. So why should one party be allowed to retire and collect and one party not allowed to retire and pay. In practice that is what often happens. And judges rarely allow a payor to retire because they find nothing in the law that spells out that alimony ends. Importantly the 2011 bill grants judges the right to deviate from the law for extenuating circumstances; for example perhaps the recipient can’t work or does take care of adult children, which may make the continued receipt of alimony necessary and genuine.

    In conclusion, while I don’t take lightly the views of a Supreme Court justice, I think that the overwhelming evidence of divorce and alimony historically in the commonwealth supported a law change that was to be applied retroactively in order to relieve injustice. I think that the near unanimous vote approving the bill and the level of earnest debate and involvement from reputable stakeholders on the issue substantiate that the new law needed to be applied retroactively and was considered appropriately and with open eyes. Only the court deviated from this path due to an unfortunate reading of arguable poor drafting in the bill.

  3. Dear Senator Brownsberger,
    What I find hard to accept is that you would not let the bill go up for a vote.
    Do others in yours & similar positions not have any value by not getting an opportunity to cast there own vote ? Many others fell a need to pass H740…Should one person be able to stop the opportunity of many who feel the need to vote on this important legislation ?
    How can you see any fairness in lifetime sentences of Alimony.
    Yes there are arguments on both sides as there always will be. However there are many more people on the favorable side of this bill. If this bill H740 was not a equatable and fair solution it would have gone away a long time ago..
    H740 does not automatically end Alimony as many probably think. It motivates both parties to settle rather than have a judgement made by a stranger…
    Your reference to “Chaff” is disheartening at best… (To separate what is useful or valuable from what is worthless)…Is our cause, H740 WORTHLESS ?
    I do hope you would reconsider and allow H740 up for a vote and see where the chips fall………..
    Respectively,
    Bill Horrigan

  4. First of all, I feel the need to point out that I will not personally financially benefit in any way from H 740 becoming law. However, I feel the need to speak out against legislative tactics that I believe are unfair to the many MA constituents who unfairly and unjustly suffer from this retroactive problem (which I fortunately do not).

    The intention of the 2011 Alimony Reform Law was to make it retroactive for divorces prior to 2012, but the wording of this portion of the law was not done well, which created enough ambiguity that leads to the current problems regarding divorces that pre-dated this law. If legislators agreed that the previous alimony system was unfair and unjust and decided to change it through the 2011 Alimony Reform Law, it doesn’t make much sense for it to be unfair and unjust for divorces after 2012 but perfectly fair for divorces prior to 2012. This seems absurd.

    The 2011 Alimony Reform bill became law with UNANIMOUS support in both MA’s House and Senate. The support for these alimony reforms was common sense and widespread to be point of being nearly universal by the time of passage.

    Any issue that has such widespread support deserves to be put up for a full vote, and not effectively blocked by any one committee, as happened with this bill. This legislative tactic is not fair to the many MA constituents whose lives are dramatically and negatively impacted by this issue. The voice of all constituents should be heard on this issue rather than just the voice of the politicians who happen to be on the committee which can block this bill’s passage into law.

    Please bring this bill to a full vote as soon as possible. If it fails in the full vote, then so be it, as at least all constituent voices would be represented in the vote. However, it seems clear that it will likely pass into law with an overwhelming majority, which seems to be exactly why the bill is being blocked by committee–to prevent an otherwise inevitable/very likely passage into law. Blocking this bill in committee is an injustice and rebuke to the good constituents of MA.

    Lee

  5. I know that most divorce cases and complaints do not involve litigating in the courts. Safe to say, we can get a number on how many divorces occur as a result of litigation. It is very small. Most people use the law to settle cases. Legal costs are then very small. Is this something new to you?

    Also, you don’t accurately state what the 2011 law, nor what the House Bill was trying to do. I know from experience that a court will dismiss any filing to modify a divorce agreement if there is not a cause deemed by the courts to be relevant. It is the first question and is what the defendant might at first use to get the case dismissed.

    What the law does is to make retirement a legitimate reason to ask the court to consider a changed circumstance. That does not mean alimony will end. Making it seem like the 2017 bill was ending alimony at retirement age is distorting the truth.

    Yes, be careful about retroactively applying legislation. For this bill, I don’t see that it is complex. Everyone reaches an age where they cannot produce the same kind of income. Getting old applies to everyone. Whether they were divorced before or after the 2011 alimony law does not change this.

    For my case, my X went back to college, became an RN and earns almost as much as I do. We split our assets 50/50 and will both collect social security at the dollar amount. Just because my divorce was before 2011 I have to pay until one of us dies, but someone divorced a later year has the chance to have the provisions revisited? Ridiculous.

    Clearly the date of the law is not relevant and the 2011 law should apply to everyone.

    And cohabiting? The one receiving alimony is simply skirting the law that requires alimony to end upon marriage. But as it is, people have to keep paying until you release the bill from your committee to allow a debate and vote to occur.You don’t need the support the bill. You just need to recognize that the legislative process must reach a conclusion.

    I suggest you respect all the effort that went into the 2011 legislation which included a joint task force, rather than Monday Morning Quarterbacking this now. You don’t have to require the wheel to be re-invented.

    Frankly, I am puzzled about your unwillingness to advance this bill. It has to be one of the more straight forward no-brainer bills of the year.

  6. Contrary to what is written above, I had no control over my divorce judgment and . A judge handed it down without taking into account that my wife held a PhD and had a job similar to mine earning slightly less than I. Subsequently, she took a job outside of the US as an administrator of a large international school. Despite that, I was still required to pay alimony that had been based on her earnings when we divorced. She is now semi-retired and living partially on my alimony and savings she amassed while working abroad, including a pension from another country – yet I can not retire and am required to continue working. I find this grossly unfair. I find the opposite than does Will Brownsberger – by not changing the law I am now subjected to the intrinsic unfairness of the current law. I will do whatever is in my earthly power to vote out of office any of the lawmakers, like Will Brownsberger, who are in the sway of divorce lawyers and others who are feeding off the misery of others.

    1. The divorce industry is a lot like the NRA, everyone knows that what it does is wrong and everyone knows that the outcomes are horrific, but its treachery is allowed to go on forever it seems due to a combination of willful ignorance by the population and active lobbying by commercial special interest groups, many members of which are also in the government. It’s probably worse actually than the NRA because it’s aided by schadenfreude (I don’t think anyone laughs when someone gets picked off by an AR15 like they do when the divorce industry ruins a life), and it also a deep, long and special place in history that someday will come to light when historians drill into it. Like the NRA it’s relatively pointless to fight it because it has so much power, my condolences.

  7. Senator this bill needs to be retroactive. This bill should have been in play years ago as there should never have been lifetime alimony. Why should anybody have to pay anybody else for the rest of their life because they decided to get married. My alimony payment is my most expensive bill after my mortgage. My ex does not work because she gets alimony, meanwhile if I do not work I go to jail. There is no law to support a child once they turn 18 who has no experience or skills, but yet there is a law that states I have to make a monthly payment to an adult who is most likely older and more experienced than an 18 year for many many years. There should be strong and hard limits on alimony. Frankly it should be no longer than 5 years.

  8. Opening up previously settled cases to further litigation is NOT a reasonable reason to prevent legislation that is based on common sense and decency. Modifying previous (modifiable) agreements was clearly the impact of the original bill you voted for as, to prevent any court overload, it staged when modifications could be filed. In fact, the clarity this bill would provide would prevent most litigation and create a basis for fair out-of-court settlements. Candidly, you should remove that argument as a reason for your objection and see if it still holds water.

    Further, your characterization of the SJC decision doesn’t reflect that the original bill clearly intended to make the cohabitation and retirement provisions retroactive and it was only poor wording in the bill that allowed for the appeals court’s reversal of the bill’s obvious intent. Otherwise, there would be no need for this new bill.

    You have described a system where the courts can prevent a person who has reached normal retirement age from retiring in order to support an ex-spouse. That is fundamentally absurd & an intrusion on the individual’s liberty.

    Further, we now live with TWO standards for ending alimony upon cohabitation: one for marriages preceding the original reform law and one for those after. That is nonsensical. If alimony is to end upon remarriage, common sense dictates it also must end upon cohabitation. Otherwise, the law simply encourages alimony recipients to never remarry! That change made sense to marriages after the new law and it most certainly makes the same common sense to marriage prior to the new law.

    Blocking this bill from committee consideration simply furthers dependency and leaves court-precedent founded in the 1950’s as the archaic rule of the land.

    Worse, blocking this bill and prolonging such unfair alimony rules creates bitterness amongst the divorced couples and negatively impacts all the families and individuals involved.

  9. If I understand it correctly I think I’m in agreement with your choice. I went off on a tear the past few years, probably looking like a lunatic, advocating against the probate courts, and the “divorce industry”. In my dreams and many postings my goal was to convince someone to pursue a civil rights lawsuit against “the industry” to force reform and compensate its many victims over the past decades, and that definitely includes the children of divorce. The truth is almost no divorces in the Commonwealth actually work out and almost everyone ends up with nothing and almost all of the children suffer needlessly and are permanently driven backwards on the economic scale. The system flat out doesn’t work and the only people who benefit from it are the provider class, those who make a living at it. The victims just limp away from it and show up later on Mass health maybe or in a shelter or in subsidized housing or disadvantaged educationally living quiet lives of desperation. Just do the math, do a thought experiment, don’t call it divorce but take any group of people and subject them to the abuse an illogic that people going through divorce are subject to (even the supposed “bad cop” in the mix). They all end up with nothing unless they are very lucky or they started out with a whole lot. It’s a terrible system with almost universally bad outcomes. At the very least, until a civilized approach is found, you should strike the “best interest of the child” language from the laws because that is not the intention and it’s rarely the outcome either.

  10. Dear Senator,

    I understand and respect that you do not support House 740. There will be cases that fall on both sides of this debate, those that are unfair to the payer and those situations where the recipient is taking advantage of the alimony for life rulings.

    Personally, while I can afford to pay the alimony and am soon to retire, my ex is now very well financially secure. She has a wonderful job, making a six figure salary, all three children are independent (ages 25-31), her home is fully paid off, no debt, a new car every few years, wonderful vacations multiple times per year, etc. She has a boyfriend of over 6 years that she refuses to marry so that she doesn’t lose the alimony payment.

    My divorce was finalized over 15 years ago. I had no issue with paying the alimony during the period of transition and I went above and beyond the divorce agreement by paying well over 90% of the three children’s private (2) and public college tuition costs, when my obligation was 50%.

    My ex is financially stable and I find it totally unfair to have to pay alimony for the rest of my life.

    The Alimony Reform Act would provide me the basis to request a modification that is fair and reasonable. I am simply looking for fairness.

    Your position that this bill is “chaff” is concerning to me. It is not “chaff” to me. It is real money!!!

    This is why I request that you allow this bill to proceed to a vote.

    How do individual’s such as myself and other well intentioned divorced payee’s find a resolution?

    Regards,

    Dan