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When Determining Alimony, the "Length of the Marriage" May Start Before "I Do"

The United States Census Bureau shows the median age of individuals at the time of their first marriage is becoming increasingly older for both men and women.  Meanwhile, the number of unmarried individuals cohabiting with their significant others is growing. These trends may be due in some part to couples delaying the responsibilities of marriage as they focus on their careers, but here is something all couples should know: for purposes of determining the length of a marriage for an alimony award, the period of premarital cohabitation could be included regardless of whether both parties were contributing financially.

Recently, in Bortolotti v. Bortolotti, Docket 16-P-1742 (Mass. App. Ct. April 13, 2018) (Memo and Order Pursuant to Rule 1:28), the Appeals Court of Massachusetts vacated and remanded the trial court's alimony award, concluding that the judge erred in finding no "economic marital partnership"existed during the period the parties cohabitated before their marriage.

Prior to their marriage in 2004, the parties had lived together since 1998. During their premarital cohabitation period, the wife worked but did not contribute financially to the household. Rather, there was evidence that the wife was economically dependent on the husband during that time.

As the trial court noted, the "length of the marriage" for purposes of determining an alimony award can be adjusted to include a premarital cohabitation period when an "economic marital partnership" existed. See G.L. c. 208, § 48. However, because the wife did not contribute financially during the premarital cohabitation period, the judge concluded there was no "economic marital partnership."  Thus, the judge did not factor in the parties' premarital cohabitation period when determining the length of the marriage for the alimony award.

The Appeals Court held that the trial court's exclusion of the parties' premarital cohabitation period in determining the parties' length of marriage for the alimony award was an error. An "economic marital partnership" may exist even if the wife did not contribute financially because she was economically dependent on the husband.  Although "economic marital partnership" is not defined in § 48, G.L. c. 208, § 49(d)(1) presents several factors that a court can consider when determining whether a recipient of general term alimony is cohabitating and maintaining a "common household" for the purpose of terminating, reducing, or suspending alimony.  One such factor is the "economic dependence of [one] person on the other." The Court also reasoned that the Supreme Judicial Court recently commented that the Legislature intended "cohabitation," "economic marital partnership," and "common household" to be used synonymously. See Kareores v. Kareores, 474 Mass. 528, 534-35 (2016). 

The Court also vacated and remanded the trial court's property division award because the judge erroneously used a valuation of the husband's premarital assets from a prior divorce proceeding in 1999 rather than the value of the husband's premarital assets in 2004.

Should you have questions about alimony or property division in Massachusetts, please contact Fitch Law Partners.

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