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.