A Zero is Something: The Massachusetts Appeals Court Concludes that a Divorce Judgment Provided for a “Zero-Dollar Alimony Award”

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People often think about the number zero as only nothing, when in fact, the invention of the humble zero constantly forces us to realize that the absence of something is a thing in and of itself.  In a recent decision, the Massachusetts Appeals Court changed the durational limits of an alimony award based on an implicit “zero-dollar alimony award” in the separation agreement, once again proving that when it comes to zero, nothing absolutely matters. 

In George Clemence v. Kristine Sklenak, the husband and wife divorced after thirteen years of marriage pursuant to a divorce judgment that incorporated all of the terms of their separation agreement. Within the separation agreement, the husband expressly waived any past, present or future alimony, but the waiver was conditioned on the sale of the marital home for $725,000 after which the husband would receive 60% of the equity of the home and some additional real property. The agreement provided that if the marital home did not sell for $725,000 the husband and wife would divide the proceeds of the sale equally and the husband would have the right to file a complaint for modification seeking future alimony from the wife. Ultimately, the husband and wife were only able to sell the home for $433,000. After the sale, in accordance with the separation agreement, the husband filed a complaint for modification seeking alimony from the wife. A trial ensued and it concluded with the judge entering a judgment for modification in favor of the husband; the judge ordered the wife to pay the husband alimony. Due to the creation of durational limits for alimony under the Alimony Reform Act of 2011, the judge ordered the wife to pay the husband alimony for ninety-eight (98) months, the durational limit for a thirteen-year marriage. Thus, the judge ordered that, barring the death of one of the parties or the husband’s remarriage or cohabition with another, the alimony award would last until October 8, 2026, ninety-eight months from the judge’s modification judgment.  The judge based the durational limit on what was believed to be the initial date of the award–the modification hearing. 

The wife appealed the decision, arguing that the Court erred in using the modification date as the date from which the alimony would run. Under Massachusetts law, the durational limit for a general term alimony award begins on the date that alimony is first contemplated. Here, she contended that the husband’s express waiver of alimony at the time of the divorce was the initial moment that alimony was contemplated and, thus, the Court was required to use the divorce date–not the modification date–for the durational limit. The Appeals Court agreed with the wife, and ruled that the husband’s waiver essentially demonstrated that he bargained for and agreed to a “zero-dollar” alimony award if the marital home sold for $725,000 and, in the event that the home did not sell for that price, both parties had stipulated that the husband would have the material change in circumstances necessary for a modification of the zero-dollar award. The Court further supported its reasoning with language of the separation agreement that provided that the husband would only be entitled to seek future alimony payments if the anticipated sale of the marital home failed. The Court did not speculate on what the result of this case would have been if husband’s waiver of present alimony had not been an express condition of the sale.


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