Alimony Reform Revisited: A Basis and a Defense

As we discussed in a previous blog, Massachusetts Alimony Reform is now law.  People who are 67 years old or older and have retired may bring an action for modification beginning on March 1, 2013.  Others who wish to bring their actions based only upon the time limits for alimony payments must wait until that starting gun sounds as described in the statute.

For those individuals who were ordered to pay spousal support until their death, the death of the former spouse, or the remarriage of the former spouse have greeted this new statute with the great anticipation of their salvation. Because I have already had some experience litigating under the new statute, I wanted to provide some words of caution.  The new statute provides an avenue of relief, but it is not a guarantee that the alimony will be reduced or terminated.

I want to raise two issues which you will want to discuss with your attorneys once you are engaged in this litigation.  One issue deals with a basis for filing the modification.  The other issue deals with a defense to that complaint for modification.

The statute provides for the filing of a complaint to terminate alimony if your former spouse has created a common household by cohabitating with someone.  This is an avenue that existed prior to the enactment of the statute, but the action was based upon decisional law from our appellate courts.  Therefore the standard for modification was less clear.  That being said, there does still exist an ambiguity, even in the statute.  The new law speaks about cohabitating individuals.  Do those individuals have to be in a romantic relationship?  Can the individuals be friends who happen to live together and share expenses?  Can the individuals be other family members who are now adults, i.e., a returning child from college who is working but wants his old room back?  This is a matter that will clearly need to be determined case by case.

The defense that requires discussion is advanced age.   Does that mean that you, now in your 70’s or 80’s, who are an alimony recipient, will automatically lose your alimony once your former spouse is authorized to file a complaint?   Again, this issue will be subject to case by case analysis  and appellate review.  If you, at an advanced age, are principally reliant on the alimony for your survival, you have a defense to the termination of your alimony.  On the other hand, if you are of advanced age and receive alimony, but have significant assets (whatever “significant” means), your alimony may be in jeopardy.

Periodically, as I litigate under this new statute, I will check in and report what my experience has been in either defending against a complaint or filing a complaint.

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