FOR THOSE FORGOTTEN SPOUSES: DISCUSSION OF THE NEW ALIMONY STATUTE CONTINUED

This article is designed to discuss briefly what rights those individuals who have been receiving alimony in light of the change in the law. Those former husbands or wives who are currently paying alimony know or should know that beginning on March 1, 2013, a complaint for modification to terminate alimony can be filed with the probate court in Massachusetts. The party filing must have been married five years or less or is at full retirement age or will reach full retirement age by March 1, 2015. Full retirement age as defined by the new statute is age 67.

The statute was designed to stagger the filing of modifications to end alimony based upon the length that the parties were married. Had the statute not mandated staggered filing dates, the probate court would have been glutted with a wave of modification filings. But what is to become of the former husband or wife who has been the recipient of alimony?

Many a former spouse now stand with great trepidation how he or she will support himself. In what was deemed to be a traditional marriage where one party stayed home and was the house wife, and the other party was the “bread winner”, the stay at home may lack marketable skills to obtain employment. Likewise, if the stay at home had, once upon a time, acquired a college degree, perhaps a Master’s degree, and a few years of working, but had later assumed the role as house person, that stay at home may likewise have stale job skills that prevent employment in the work place.

But there may be other issues regarding this former spouse and why he or she was the recipient of alimony. Perhaps it was illness that prevented or hindered the ability of that person to work. The end result is the same in the preceding examples: these former spouses now feel like the forgotten spouses who are about to lose their alimony, if not beginning March 1, 2013, shortly thereafter. Is the termination for those individuals a fait accompli? Are they truly to be the “forgotten spouse”?

The new statute does provide recourse for that recipient of alimony in response to a complaint for modification. A review of section 49 of that statute, section (b ) and ( f ) provide for the court, upon a hearing of clear and convincing evidence that a change of circumstances has occurred after the entry of the alimony judgment that support an extension for the payment of alimony beyond the specified date in the statute. What this language means, for example, is that the alimony recipient, if she has become ill and infirm since the date of the original alimony order, and requires the continuation of support from the former spouse to be able to meet her needs, the court is authorized to set a different termination date of alimony upon written findings stating the rationale if the evidence presented supports the need by clear and convincing evidence. Clear and convincing evidence is a greater evidentiary standard than preponderance of the evidence which is the usual burden of proof. If you can visualize the scales of justice, preponderance of the evidence occurs when one side of the scales is weighed greater than the other side. Clear and convincing evidence on that same scale means that one side of the scale is far greater in weight than the other. In other words, if you are seeking relief from the termination date assigned by the statute, you better have a strong case.

In the event that you are approaching the date that spells the end of your payments of alimony or your receipt of alimony, you should, without hesitation, seek legal advice. Remember that these cases are decided by application of the law to the facts. You may not be relegated to the category of “forgotten spouse” after all. Although the law provides for an end point for payment of alimony for most individuals, each person’s story is unique, and you may have a good argument to prevent alimony termination.

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