Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee.
In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, easy to imagine. Consider, for example, any pair of business people or professionals: their levels of success will vary over time, under any circumstances. With the ARA’s income comparison model - the presumed metric for general term alimony under M. G. L., ch. 208, §53(b) generally not exceeding 30-35% of the difference in the spouses’ respective earnings - the parties’ income capacities may not only fluctuate, but at some point, converge and intersect.
For example, at divorce, Leslie earns $90,000 per year while Morgan earns $60,000, it is predictable that Leslie would pay about $10,000 of alimony. (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) would deem it “reasonable and legal”). Yet, some years later, Morgan could easily be earning $120,000 while Leslie treads water at $90,000. Thus, the alimony shoe shifts feet, the law then presuming that Morgan should pay the same $10,000.
Assume now that Morgan and Leslie were married for 15 years. Under M.G.L., ch, 208, §49(b)(3), the presumed duration of alimony is 10 1/2 years. Assume further that the parties traded places 5 years after divorce. In a modification action, would Morgan’s durational limit be the “remaining” 5 1/2 years? Or, would Morgan begin her own 10 ½ year run? If they switched fortunes again (always presuming that someone has “need”), would Leslie resume her 10 ½ track at the point of first modification, or the second?
Alternatively, suppose that Leslie has paid alimony for 9.5 years, only to find herself laid off, and no longer employable at a comparable level. Or, worse yet, disabled. Morgan continues to be both healthy and happily employed. Is the newly vulnerable Leslie now limited to a year and half of alimony despite her straightened circumstances? Is she left to the vagaries of the court’s discretionary extension of the initial durational limit under M.G.L., ch. 208, § 53(e)(9)? Or, conversely, will that spouse now be eligible for period of up to 10 1/2 years as an alimony recipient himself?
Now, imagine that the parties never traded places organically. Leslie paid alimony shy of the 10 ½ year duration limit because she attained full social security retirement age after 10 years only, under M.G.L., ch. 208, §49(f). In fact, she retired. Meanwhile, the younger Morgan continues to work. Since the court cannot impute income to Leslie despite her voluntary retirement, is Morgan now on the hook for alimony? And, then, for how long? Is the duration limit 6 months, or is it re-set to reflect Morgan’s new status as payor? And since §49(f) precludes attributing income beyond full social security retirement age as a “reason to extend alimony”, does that prohibition hold if the retiree is now a recipient rather than the alimony source?
While we’re at it, what of M.G.L., ch. 53, §53(9)(g), which regulates alimony orders that commence subsequent to, or simultaneous with, child support? Where the statute limits alimony to the combined duration of alimony or child support available at the time of divorce, does that apply to one party as a payor, or to both?
As we write, we are unaware of any appellate precedent or any pending cases that will provide the answers to these questions. But rest assured, that even if they do, there are plenty of other questions in the pipeline.
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