Divorce Law Monitor
Recent Appeals Court Decisions Clarifying Durational Limits for Alimony: Part 2
November 19, 2020
In my last blog post, I discussed the Clement v. Owens case, one of two recent decisions from the Appeals Court which further defined and clarified the durational limits of alimony in Massachusetts under the 2012 Alimony Reform Act. In this blog post, I will discuss the second case, Clemence v. Sklenak, which addressed the question of whether the Alimony Reform Act’s durational limits, set forth in G. L. c. 208, § 49(b), began to run on the date of the judgment of divorce (wherein the husband waived past, present and future alimony except in limited circumstances) or when alimony was awarded under a modification judgment. The Appeals Court found that because the divorce judgment provided for an initial “zero alimony award,” the durational limits commenced at the time of the entry of the divorce judgment.
In the Clemence case, the parties were married for approximately thirteen (13) years. A judgment of divorce nisi, incorporating the parties’ Separation Agreement, was entered in January 2017. Pursuant to the terms of the parties’ Separation Agreement, the husband waived past, present, and future alimony. The Agreement further provided that the husband’s waiver of alimony was based upon his receipt of a disproportionate share (60%) of the equity in the marital home and additional real property. His waiver of alimony was conditioned on the sale of the marital home to an unrelated party for $725,000. The Agreement provided that if the sale did not occur as contemplated, the husband could file a complaint for modification seeking alimony from the wife. These terms merged into the judgment of divorce nisi – meaning they were modifiable upon a showing of a change in circumstances.
In August 2017, after the marital home sold for only $433,000, as opposed to the $725,000 contemplated in the parties’ Separation Agreement, the husband filed a complaint for modification seeking alimony from the wife. After trial, the wife was ordered to pay general term alimony to the husband. The modification judgment provided that alimony would continue until October 2026, approximately 98 months from the date of the modification judgment, unless otherwise modified, terminated, or suspended at an earlier date due to the death of either party, the husband’s remarriage, or the husband’s cohabitation. In setting the durational limits of the general term alimony of October 2026, the Trial Court treated the modification judgment as the initial general term alimony award. The wife appealed, arguing that the Trial Court erred in using the date of the modification judgment instead of the date of divorce as the starting place from which the duration of alimony should run.
Relying on the case of Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997) case, the Appeals Court agreed with the wife. As in Buckley, the judgment of divorce nisi contained express waivers of past and present alimony. For purposes of the Alimony Reform Act’s durational limits, these waivers were equivalent to a “zero dollar alimony award” as each of the statutory factors for an award of alimony were considered at the time of the divorce and it was agreed that no award was appropriate at that time.
In addition, the Husband’s conditioned waiver of alimony based upon the sale of the marital home for a sum certain was tantamount to a stipulation of a material and substantial change in circumstances that would allow the Husband to come back to seek alimony from the Wife. The stipulation of a material and substantial change in circumstances in and of itself evidences that the judgment of divorce nisi contained an initial (albeit zero) award of general term alimony for purposes of starting the clock on the durational limits of alimony. The Appeals Court in the Clemence case reversed the Trial Court’s judgment and ordered that the durational limit be reduced from October 2026 to March 2025, recognizing that the durational limits commenced at the time of the entry of the judgment of divorce nisi and not at the time of the entry of the modification judgment.
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