Since the enactment of the Alimony Reform Act of 2011 (the "Act"), alimony awards once considered ambiguous or lifetime entitlements are now subject to specific, durational time limits based upon the length of the parties' marriage. But, under what circumstances might such durational limits be extended? In a recent decision, a Probate and Family Court (Hampshire Division) judge has ruled that a former husband's obligation to pay alimony to his disabled former wife shall continue beyond durational limits. Barcalow v. Barcalow (Lawyers Weekly No. 15-003-12.)
In the Barcalow case, the parties were married for approximately 6 years, 2 months (or 74 months). By the terms of the Act, if the duration of the marriage is 10 years or less, but more than 5 years, general term alimony shall be no greater than 60 percent of the number of months of the marriage. G.L. c. 208, § 49(b). Following passage of the Act and more than 7-years post divorce, Mr. Barcalow filed a Complaint for Modification, seeking to terminate his alimony obligation to his former wife based, in part, upon the fact that his obligation exceeded the Act's durational limit.
While recognizing that the application of durational limits results in an alimony obligation of approximately 3 years, 8 months, the Court's decision provides, "the inquiry does not end there." Rather, in addition to durational limits the Court must also consider "whether deviation from the durational limits is warranted or is required in the interests of justice." In its analysis, the Court notes that un-codified section 4 of the Act provides, "existing alimony awards which exceed the duration limits established in [G.L. c. 209, § 49(b)] shall be modified upon a complaint for modification without additional material change of circumstances, unless the court finds that deviation from the durational limits is warranted." In addition, the Act also provides for exceptions to the durational limit "upon a written finding by the court that deviation beyond the time limits of this section [§49(b)] are required in the interests of justice."
In undertaking a fact-specific analysis, the Court found that, in 2002 (prior to the parties' divorce), Ms. Barcalow was involved in a car accident in which she sustained a severe head injury; she suffered with cognitive impairments and physical limitations (e.g., speech issues and an inability to drive long distances or in unfamiliar places); and she had been deemed totally disabled and eligible to receive Social Security Disability benefits. Other than SSDI benefits and alimony, Ms. Barcalow had no additional income with which to meet her needs. She was nearly 60-years old, with an inability to work; and she is not enjoying the lifestyle she had during the parties' marriage. Given these circumstances, the Court held that a deviation from the durational limits is warranted and Mr. Barcalow's Complaint for Modification was dismissed.
Notably, in its opinion, the Court recognized that long standing public policy provides, "a judge ought not, even if there is some financial hardship, shift to the public a party's obligation to provide support for his former spouse and children."
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