For those following the alimony reform saga, on March 7, there was a public hearing on House Bill 4034, which proposes to amend the alimony reform law by replacing Section 4 with an entirely new section.
The new paragraph considers the pensioner reaching the full pension limit and living together as a significant change of circumstances for the purposes of deciding an appeal for amendment of a judgment given before 1 March 2012.
Thus, the bill would overturn the unanimous rulings in the Supreme Court's three February 2015 alimony decisions (Chin, Rodman and Doktor). These rulings, based on an interpretation of section 4, provide that the cohabitation and pension provisions of the Alimony Reform Act do not apply to divorce decrees entered before the Act's enactment on March 1, 2012.
In view of the Supreme Court decisions, recipients who had signed a separation agreement before 1 March 2012 were not affected by the new law unless the maintenance obligation exceeded the time limits set out in the new law.
House Bill 4034 seeks to change this and subject old agreements to the retirement and cohabitation provisions of the new law.
If the bill is passed, Section 4 of the Act as currently drafted would be struck down, along with the reasoning behind the Chin, Rodman, and Doktor decisions.
A payer who has reached full retirement age shall be relieved of the obligation to pay maintenance, regardless of when the divorce decree was entered and unless the recipient demonstrates that an extension is justified by valid reasons beyond the mere fact that the payer continues to work or is able to continue to work.
This differs from existing law, which requires payers with obligations arising before 1 March 2012 to demonstrate a genuine change of circumstances, such as leaving work at normal retirement age, to justify a reduction or cessation of support.
With respect to a recipient living in a marriage-like relationship, the payer's obligation is suspended, reduced or cancelled regardless of when the divorce judgment was made. This is in contrast to existing law, which entitles payers to compensation when cohabitation is a new circumstance since the maintenance judgment was made and when the cohabitation circumstance actually reduces the recipient's financial needs.
The Supreme Court's decisions brought clarity where previously there had been debates among legal and judicial authorities about the correct interpretation of the law. We now know that all provisions of the maintenance reform apply to new agreements. Only the time limitations apply to old agreements.
The decisions were a reasoned, balanced and considered interpretation of the law. In my opinion, it was the only logical interpretation based on the language in Section 4, which was drafted with input from members of the Maintenance Working Group on both sides and passed by the legislature.
But there was a fierce backlash from payers and some members of the bar who insisted that the Supreme Court's interpretation was not intended, leading to the bill. Critics spoke of chaos in the courts following the decisions in Chin, Rodman and Doktor – chaos that will only get worse if the amendment is passed at the behest of those same critics.
While we are unclear about what the law is, what the law was, and what it should be, we as lawyers must try to navigate the issue, advise our clients, and settle cases.
Many of us have entered into agreements with our clients prior to the Supreme Court decisions that were based on an incorrect interpretation of the law (i.e., that the recipient's retirement age and cohabitation justified automatic relief for payers), to the detriment of the recipients.
Recipients who were fortunate enough to hold out after the Supreme Court's ruling continue to receive the alimony provided for in their separation agreements or, in rare cases, have been able to set aside judgments or agreements made in reliance on a misapplication of the law.
If House Bill 4034 passes, payers who are still paying will likely be able to retry cases that have been adjudicated in accordance with the three Supreme Court rulings.
In cases involving retirement age, recipients will in turn seek an extension of maintenance for just cause, whatever that may mean. In cases involving cohabitation, recipients will seek a reduction rather than termination. This will certainly keep the Family Law Bar Association busy creating further chaos, not to mention the additional burden on the already overburdened court system.
The bill, which was filed on February 19 and was subject to a public hearing less than three weeks later, received the support of 25 speakers and not a single opponent, even though it affects as many recipients as payers. I understand that this is mainly because none of the recipients knew about the public hearing, nor did they have the means to oppose it.
Oddly enough, none of the attorneys representing the recipients in the Chin, Rodman, and Doktor cases were present at the hearing, and it is not known what notice was actually given. How can this be called a “public” hearing?
If passed, House Bill 4034 would remove the rug from under the decisions of the Supreme Judicial Committee (SJC). It would also remove the rug from under the feet of thousands of alimony recipients who signed separation agreements before March 1, 2012, citing other laws and expecting the continuation of the alimony payments stipulated in their agreements, provided the payer demonstrates that their circumstances have actually materially and substantively changed.
There must be a balance between the rights and obligations of both payers and recipients, a balance that has been turned on its head in this so-called ‘public’ hearing.
Bill 4034, now H. 4110, titled “An Act to Reform Commonwealth Alimony,” is moving forward apace: It arrived in the House Committee on Governance, Policy, and Planning on March 21. It is sponsored by the Joint Committee on the Judiciary. A hearing has not yet been scheduled.
The Bar, the judiciary, Parliament, members of the Maintenance Working Group, payers and recipients must be clear about what is at stake if this bill is passed.
Maureen McBrien is a family law attorney with Brick, Sugarman, Jones & McBrien in Newton. You can reach her at [email protected].
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