The Appeals Court addressed this issue in the recent case, Clement v. Owens-Clement. In that case, the Husband and the Wife were married for a total of six years before they divorced in 2013. The parties’ separation agreement, which was incorporated into their divorce judgment, included a merged alimony provision in which the parties waived past and present alimony, but presumptively left open the option to seek alimony in the future.
Over four and a half years later, after the durational alimony limits under the Alimony Reform Act (G.L. c. 208, § 49 (b)) had already expired, the Wife filed a complaint for modification seeking alimony on the basis of her complete disability and inability to work. The Probate and Family Court judge issued a modification judgment requiring the Husband to pay the Wife $200 per week as general term alimony until either party’s death, the wife’s remarriage, or further order of the Court.
Under G.L. c. 208, § 49 (b), the presumptive duration for alimony is no longer than 60% of the number of months of the marriage when it had lasted for more than five years but less than ten years. Yet in this case, the trial court granted the Wife’s request for alimony approximately 13 months after the durational alimony limits had presumptively expired.
The Husband appealed the judgment for deviating from the durational alimony limits provided in G.L. c. 208, § 49 (b), and for failing to terminate alimony upon his retirement as required under G.L. c. 208, §49 (f).
The Appeals Court decided that neither G.L. c. 208, § 49, nor G.L. c. 208, § 37 (which deals with modifications of alimony) set any time limit on the judge’s authority to modify an alimony order, stating that if the Legislature had intended to impose such a limit, it would have expressly done so. The Court found there was no evidence in any of the sections of the Alimony Reform Act that the Legislature intended to automatically terminate alimony simply because the award would exceed the durational limits.
Further, the Court found that the Legislature did not intend to prevent a judge from deviating from the presumptive durational limits simply because the modification complaint was filed after the presumptive durational limits had expired. In this case, the Wife met her burden of showing by a preponderance of the evidence that the interest of justice required the deviation from the presumptive durational limit due to her total disability, her inability to support herself, and her lack of assets. As such, the Court found there was no abuse of discretion in the alimony award on the Wife’s modification complaint, even though it was filed after the durational limits already expired.
The Court did, however, find that the judge erred in failing to terminate alimony upon the Husband’s reaching full retirement age under G.L. c. 208, § 49(f), as the statute provides that “[o]nce issued, general term alimony orders shall terminate upon the payor attaining full retirement age.” A judge may grant the recipient an extension of alimony for good cause, provided the judge make findings of i) a material change of circumstances that occurred after the entry of the alimony judgment and ii) reasons for the extension that are supported by clear and convincing evidence. Here, the judge did not make such express findings of fact. As such, the Court amended the judgment to provide the Husband’s alimony obligation would terminate upon reaching full retirement age.