Recently in Malachi M. v. Quintina Q., the SJC held that: [P]ursuant to G.L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the divorce judgment, and must address the applicability of the rebuttable presumption, even in the absence of evidence of abuse occurring after the divorce judgment.
Divorce litigants in Massachusetts may not clearly understand the distinction between those provisions in a Separation Agreement regarding child support and those provisions regarding the payment of the child(ren)'s expenses. Both types of provisions are merged into the Judgment of Divorce, meaning that the court can modify them in appropriate cases. Generally speaking, the standard for modifying a child support order is that there must be "an inconsistency between the amount of the existing order and the amount that would result from the application of the Massachusetts child support guidelines." M. G. L. c. 208, § 28. In contrast, the standard for modifying any provisions about payment of a child's expenses is that there must have been a "material change in circumstances" since the entry of the judgment that is being modified.
In Casey v. Sweeney, a recent decision of the Appeals Court of Massachusetts, the court declined to provide clarification on the meaning of a statutory provision that has puzzled commentators and practitioners since it came into effect on March 1st 2012. The provision at issue is M.G.L. c 208 s 53(c)(2), which reads:
In a recent summary decision, Casey v. Sweeney, a panel of the Massachusetts Appeals Court reaffirmed that a payor's alimony obligation determined prior to the enactment of the Alimony Reform Act in March 2012 cannot be modified without a showing of a material change in circumstances (i.e., a material change affecting either the recipient's need or the payor's ability to pay.
Since its amendment in 2013, Supplemental Probate and Family Court Rule 412 has provided litigants/parties with the ability to jointly request that the Court modify an existing judgment or order administratively and without the need for a formal hearing. While such administrative modifications can cover a myriad of provisions, including child support, actions pending under M.G.L. 209A (abuse prevention orders) are specifically excluded from the modification procedures set forth in Rule 412.
The new tax reform bill (https://www.congress.gov/bill/115th-congress/house-bill/1), which was signed into law on December 22, 2017, eliminates (http://money.cnn.com/2017/12/15/pf/taxes/alimony-tax-bill/index.html) the tax deduction for alimony payments for separation agreements and divorces obtained after December 31, 2018.
During a contested divorce or paternity action involving minor children, and often long after the case is formally resolved, some parents face ongoing disputes over "day to day" matters such as whether Fitch Law Partners LLP should participate in two extracurricular activities or three. The failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters can lead to repeated court appearances and thousands of dollars in legal fees. In order to provide parties a forum for efficiently resolving such disputes, as well as assistance with learning to better communicate and co-parent, many parties will agree or be ordered to engage a professional parent coordinator ("PC").
The Massachusetts Appeals Court recently upheld the "non-modifiability" of surviving alimony agreements under the Alimony Reform Act of 2011 ("act"). The case is called Lalchandani v. Roddy.
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.
In a recent Appeals Court case of Hassey v. Hassey, a provision in a divorce judgment requiring a husband to pay thirty percent of his anticipated future gross income to his former wife was struck down as inconsistent with the terms of the Alimony Reform Act of 2011.
The enactment of the Alimony Reform Act of 2011, which went into effect 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, and to hard limits of three years for "transitional alimony" (paid to help a spouse adjust to the change in lifestyle or location after divorce) and five years for "rehabilitative alimony" (intended to assist a recipient spouse in the short term who is expected to become self-supporting by a specific time). The Act further provides for the termination of alimony upon the payor reaching full retirement age or the recipient's remarriage.
Massachusetts Courts allow for the filing of a Joint Petition For Modification Of Child Support Judgment, when both parents agree that an adjustment to an existing child support judgment is warranted. Recent amendments to the Massachusetts Child Support Guidelines provide that a child support judgment may be modified when "there is an inconsistency between the amount of the existing order and the amount that would result from the application of the Child Support Guidelines." Modifying child support by joint petition may streamline uncontested support modification actions, as the Court may address such matters administratively and without the need for a hearing.
With the enactment of the Alimony Reform Act of 2011, almost every former spouse with an alimony order has questioned whether he or she may be subject to the relief from, or the loss of, support payments under the new law. While the provisions of the Act clearly apply to parties who were divorced in Massachusetts and continue to reside here, former spouses who were divorced in another state, but have since moved to Massachusetts, are also wondering about the impact of Massachusetts alimony reform.
To make it easier for parties who enter written agreements for modification to have such agreements incorporated into enforceable court judgments or orders, Rule 412 has been expanded beyond judgments and orders regarding solely child support, and now include uncontested modifications of other child-related judgments and orders, including those related to custody and medical insurance coverage.
Amendments to Supplemental Probate Court Rule 412, which currently provides the method by which a child support judgment may be modified by agreement, may soon be expanded to include a method by which parties to an action may seek to modify, by agreement, any judgment or temporary order of the Probate and Family Court. (That said, actions under M.G.L. 209A, which govern abuse prevention orders, are specifically excluded from the modification procedures outlined in Supplemental Probate Court Rule 412.)
Although a "final judgment of divorce" terminates a legal marriage between spouses, all too often, the parties will remain embroiled in litigation for years to come, particularly with respect to issues surrounding the care and custody of their minor children. Even the most well-drafted parenting plan cannot anticipate and preemptively resolve all of the disputes that inevitably arise when raising children, and the failure, inability, or outright refusal of one or both parents to communicate and reach an agreement with respect to these matters (such as whether Susie can get her ears pierced, if Johnny can sign up for football, and which parent should be responsible for picking up the children on a snow-day) can lead to repeated court appearances and thousands of dollars in legal fees. While child-related issues can always been modified upon a material change in circumstances, and some matters genuinely require the court's intervention, many of these "day to day" disputes can be efficiently and cost-effectively resolved by the appointment of a "Parenting Coordinator" ("PC").
In practice, upon the filing of a Complaint for Divorce, Modification, etc., and our receipt from the court of the original Summons, we often effectuate service of Summons and Complaint on the opposing party by mailing the original Summons, with a copy of the Complaint and the Track Assignment Notice, to the opposing party's attorney. This way the opposing party, in the privacy of his or her attorney's office, can sign the Acceptance of Service paragraph of the Summons before a Notary Public. This formally puts the Defendant on notice of the filing of the Plaintiff's lawsuit. It satisfies the requirement that the Plaintiff serve the Defendant with notice. But it also eliminates the embarrassment of a Process Server, Constable or Deputy Sheriff having to formally serve the opposing party in person, at work, in the presence of strangers, etc. Problems can arise, however, if there is a delay in opposing counsel having the opposing party come into his or her office to sign the Acceptance of Service paragraph of the original Summons, especially in cases involving a Complaint for Divorce.
Registering a child support order that was obtained in another state or even in another country is accomplished in Massachusetts by following the procedure outlined in M.G.L. c. 209D. Otherwise known as the Uniform Interstate Family Support Act ("UIFSA"), this statutory scheme allows petitioners to register and enforce child support orders here in Massachusetts even though they were obtained in another state or country.
Beth Shak, a famous World Series of Poker player and aficionado of expensive, designer shoes, who has been featured on MTV Cribs and Millionaire Matchmaker, is in the news again, and she gives us food for thought regarding Mandatory Self-Disclosure and Financial Statements in divorce cases.
Will an alimony recipient's cohabitation with another result in the termination of alimony?