Trial Court Declines to Extend Alimony Despite Wealthy Former Husband’s Ability to Pay

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The Alimony Reform Act of 2011 provides for alimony to presumptively terminate when a payor reaches full retirement age unless a Court finds that a material change in circumstances has occurred and there is clear and convincing evidence to support an extension of the payments. While appellate courts have yet to rule as to what facts and circumstances may justify such an extension, at least one trial court has found that the ability of a wealthy former spouse to continue to pay support after reaching full retirement age is not, in and of itself, sufficient to justify an extended alimony order.

The enactment of the Alimony Reform Act of 2011, which went into effect on March 1, 2012, was hailed as the most dramatic reform in family law in decades. The sweeping new law effectively ended the reign of lifetime alimony in Massachusetts, tying the length of time that a former spouse could be ordered to pay “general term” alimony (traditional alimony paid to an economically dependent spouse) to the length of the marriage in marriages of 20 years or less. Moreover, the Act provides for general term alimony orders to presumptively terminate once the payor reaches full retirement age (as defined by the U.S. Old-Age, Disability and Survivors Insurance Act). It is significant to note that the threshold for termination is “reaching retirement age”, not actually retiring, as the Act specifically states that a payor’s ability to work beyond full retirement age is not a reason to extend alimony. Nonetheless, if a Court makes written findings that a material change in circumstances has occurred after entry of the alimony judgment and there are reasons to extend the alimony that are supported by clear and convincing evidence, a former spouse may be ordered to continue to pay alimony even after he or she reaches full retirement age.

While the Alimony Reform Act was intended to provide a measure of predictability for litigants while preserving an appropriate level of judicial discretion, it did not specifically define what reasons may suffice to extend a recipient’s alimony payments beyond the time the payor reaches retirement age. As such, litigants, attorneys and trial judges alike have struggled to interpret the new law since its relatively recent enactment.

Although the issue has yet to be determined by the Appeals Court or Supreme Judicial Court, at least one trial court in this Commonwealth has held that a former spouse’s ability to continue to pay alimony after reaching full retirement age does not justify an extension of the alimony order where the recipient has not demonstrated a need for alimony or a material change in her health or wealth since the date of divorce. In the recent Middlesex Probate and Family Court case of Wands v. Wands, the Honorable Spencer M. Kagan found that a $4,000 monthly alimony payment imposed on a wealthy former husband since the date of divorce should have terminated under the Act upon the husband’s attainment of full retirement age. The Court noted that the former wife “was unable to meet the clear and convincing standard of proof to show a material change of circumstances warranting an extension of alimony … [s]he is in good health, remains an avid golfer and has substantial assets.” The court further ruled that the amount of alimony paid by the former husband to the former wife during the pendency of the complaint for modification must be repaid to the husband by the wife’s estate upon her death.


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