Wednesday, February 4, 2015

How is Bonus Income included in calculating Child Support and Alimony?

The Alimony Reform Act defines income to include all income as defined by the Massachusetts Child Support Guidelines which clearly includes bonuses in the list of included income.  In Zaleski v. Zaleski, the SJC remanded the issue of alimony in part because the lower court did not include bonuses in the alimony calculation.  Bonus income, therefore, has to be addressed, but that does not mean it's easy to deal with.

Bonuses often vary from year to year so basing a support amount on a specific number could result in an inequity to either the payor or recipient.  Making adjustments periodically presents its own problems as well, requiring a detailed agreement to ensure that the self-modifying calculations are simple enough to avoid future disagreement.  In addition, so-called self-modifying orders have been rejected by the SJC in Hassey v. Hassey, so this is only an option if parties are able to agree.

While this is not a simple question, it doesn't mean you have to reinvent the wheel.  There are numerous common options to deal with bonus income, and it it is worth spending time discussing what both parties prefer and some of the advantages and disadvantages of each.  Below are four common options for dealing with bonus income.  They are presented in no particular order.  This is not an exhaustive list but probably the most common options:

 Retroactive Adjustment  (option A)

Choose a current estimate of annual bonuses to include in the child support calculation.  Exchange w2s and 1099s the following year and then recalculate the child support guidelines. If the recalculation shows a higher than expected figure, then payor pays recipient the difference of what should have been paid in a lump sum.  If the recalculation shows a lower than expected figure, then recipient repays payor the overpayment made in a lump sum.

Advantages and Disadvantages: This type of self-modifying provision can only be done by agreement, but it has the advantage of including changes to the recipient's income.  While this option has the advantage of seeming fair by counting all of the income, it can create disagreements and complications whenever the parties have to recalculate.  If the parties fail to complete the recalculation as required then this also creates potential retroactive issues going forward.

Questions for Option A: When does the Recalculation happen and how long does the person have to pay the adjustment?  What if the recalculation is so significant that the person can't make the adjustment payment in a lump sum?  Are their consequences built into the agreement if one person doesn't provide their w2s and 1099s timely?  Does the payment going forward change after the recalculation?

Effect on DOR collection of child support: DOR would not be able to collect the adjustment without a new court order.

Prospective Adjustment (option B)

Choose a current estimate of annual bonuses to include in the child support calculation.  Exchange w2s and 1099s the following year and then recalculate the child support guidelines. The recalculated figure is the new figure for the following year.

Advantages and Disadvantages: Much like Option A this type of self-modifying provision can only be done by agreement, and it has the advantage of including changes to the recipient's income.  While this option has the advantage of seeming fair by counting all of the income, it can create disagreements and complications whenever the parties have to recalculate.  If the parties fail to complete the recalculation as required then this also creates potential retroactive issues going forward.

Questions for Option B: When does the Recalculation happen?  Does a bonus paid in January affect the recalculation or only count in the following year's recalculation?  Are their consequences built into the agreement if one person doesn't provide their w2s and 1099s timely?

Effect on DOR collection of child support: DOR would not be able to collect the adjustment without a new court order.

% Percentage of Bonus (option C)

Use only the base salary in the child support calculation.  Upon receipt of a bonus, payor provides recipient evidence of the bonus and pays a percentage within a designated period of time.

Advantages and Disadvantages: This option has the advantage of being simple, but it may be difficult for the recipient to verify that the information being provided by the payor is correct.  In addition, this doesn't take into account if the recipient receives a bonus.  This option also forces the recipient to depend on support based on the base income only on a week to week basis, which may require a change in lifestyle.

Questions for Option C:  What is the percentage? Are their consequences built into the agreement if payor doesn't provide the bonus timely?   What happens if recipient's income goes up, does that affect the bonus sharing? Should parties still exchange w2s and 1099s the following year?

Effect on DOR collection of child support: DOR would be able to collect the base support but not the bonus portion.

No Adjustment until new Modification (option D)

Choose a current estimate of annual bonuses to include in the child support calculation.

Advantages and Disadvantages: This option has the advantage of being very simple and require the least amount of ongoing interaction between the parties.  However, if the bonus changes significantly from the estimate used in the calculation than one of the parties is receiving a windfall, and that would not change until one of the parties requests that they revisit the calculation.

Questions for Option D:  Should parties still exchange w2s and 1099s the following year?

Effect on DOR collection of child support: DOR would be able to collect the support.  Any change would require a new court order.

Other questions to consider:

With any of these options there are additional questions that bonus income may raise.  In the Zaleski case, for example, the payor was also paying for private school for the children, and the SJC implied that the lower court might use that fact as a reason to exclude the bonus from the calculation.  Similarly, parties might agree if bonus income is not something they typically count on for maintenance of their base lifestyle that a portion of it could be used for savings purposes, such as college savings.

In addition, with any option that includes recalculation, it's important to have a lot of detail.  For example, if the bonus plus existing income exceeds total income of $250,000, the child support guidelines are not clear how they apply to the income over $250,000.   This doesn't mean the court doesn't consider that income, but that the Court has a lot more discretion in how to handle that income.   How do the parties want to treat the additional income in these situations?  If they are going to recalculate, then they may want to use a specific formula for this portion of the income as well.

Click here for more information on child support and alimony in Massachusetts.

Monday, February 2, 2015

How can Mediation help divorcing parents with Snow Days?

Snow days are one of the most exciting events when you're a child, especially if it means a reprieve from an upcoming test or homework due date.  But for parents, snow days are a significant inconvenience including last-minute schedule changes and all the fun involved in snow removal.  In addition, many employers will expect you to "work from home" but that is easier said than done when you have young children (as I write this I'm being asked by a three year-old why she can't have candy for breakfast).

As with many issues separated parenting exacerbates many of these inconveniences.  For separated parents, a snow day means additional questions such as which parent is in charge and who is responsible for snow removal at a shared property.   For parents who have chosen litigation to resolve their divorce, these disagreements could mean additional attorney's fees or court dates.  By contrast, all of these challenges are minimized when parents work together, as they are are encouraged to do by any settlement process that prioritizes self-determination.

Mediation and Collaborative Divorce help parties deal with the unexpected on their own by setting communication as the first choice, before fighting.  Even for parents who were not able to settle their case in mediation, if they tried mediation first then they set a precedent that they would try to work it out themselves before going to court.  One study, which we've written about before, showed the dramatic results that just trying mediation had on parental relationships with their children.  

Going to court to resolve parenting disputes can be appropriate when one parent or the children need protection, but in cases where parents are simply unable to agree going to court, sets a precedent that all disputes should be handled by attorneys.  That's not only expensive, it takes away control from the parents to determine themselves what is best for their children.  There is even a contrast between the practical issues of scheduling when choosing court over mediation:  during today's storm (2/2/2015) the trial court decided to stay open despite all local school systems closing.  Mediation let's you choose your own schedule and timing, but if you choose litigation your schedule is now controlled by a bureaucracy which is always a frustrating experience. 

If you want to learn more about the advantages of mediation, contact one of the mediators at our firm.  We can't make it stop snowing, but maybe we can help make your next snow day a little less stressful.

Saturday, January 31, 2015

Ditching the Briefcase for a Backpack - The Tom Bihn Synapse 25

In 2012 we sent our office manager (and now recently trained mediator), Melissa Day, to the ABA Tech Show with one mission:  bring back a plan for transitioning our office to a paperless office.  We have discovered that in the legal business this is never a complete process, but an ongoing mission.  Becoming a paperless office requires finding the right balance with clients and other professionals who aren't ready to take that leap, as well as constantly reevaluating the technology we use.

Three years later, it is probably the most important practice management decision we've made, and we're still learning all of the ways it impacts our office.  For the most part, we believe having everything stored electronically gives us more flexibility with our client interactions, storage options, backup, and recently I took a second look at that most iconic of business/lawyer technology: the briefcase.

Without Briefs I Don't need a Briefcase!

While briefcases have evolved, they ultimately are still designed for something I'm not carrying anymore.  The briefcase is, by definition, meant to carry paper briefs, and most are poorly designed to carry a laptop, tablets, smartphone and all the cords that go with them.  Of course, that's no surprise because lawyers aren't exactly the quickest at adopting new technologies or trends (want a ridiculous example: it seems pantsuits are still frowned upon for women in big law).

It is my experience that small firms stand out by being the first to adopt new trends, while big law lags behind.  Julie Tolek, one of the attorney/mediators in our office explains this simply by describing herself as a "lawyer for humans."  Rather than carry a square case better suited for a robot, I decided to take a closer look at the human functions I really want out of my work bag.  My priorities were:
  1. Protect my Laptop
  2. Protect my Tablet
  3. Have enough space for the other work related items I need to carry (business cards and other marketing swag, cords, pen drives, water bottle, etc.)
  4. Work well for Travel
  5. Be comfortable
  6. Not look horrible
This is a pretty simple list and many laptop bags will fit these priorities fairly well, but only one really stood out: the Tom Bihn Synapse 25.

Yes, that is a Bat'leth letter opener.
You won't find a Tom Bihn in your local big box store and frankly I might not have heard about them if not for some great reviews that are already available online including a thorough review from the Snarky Nomad and a review on the ABA's site by a fellow legal techie, Heidi Alexander.  Since those other reviews have covered in great depth the functionality and features of the Synapse, I'm just going to tell you how it answered the needs of this paperless lawyer:

Protection: My first priority was protecting the investments that I carry around and which allow me to maintain a paperless office: laptops and tablets.  The Synapse has a great design for carrying and accessing my laptop (and for traveling with it through TSA checkpoints), using a rails system and an interior cache.  More importantly, the bag itself has a durable feel to it and I am very comfortable that my laptop and tablet are safe in this bag.

All the Small Things:   Tom Bihn has considered so many tiny design details all of which taken individually would be impressive on their own, but which together add up to a significant improvement over other laptop bag options.

Tom Bihn's accessories page is a very exciting place for an organization geek.  There are numerous options for thoughtfully arranging the items you pack into the interior of your bag, including smaller bags, and even smaller bags, and... you get the idea.  Anything that helps me organize my work bag and access what I need from it quickly helps me do my job more efficiently.

My favorite accessory by far is the snake charmer, which fits perfectly in the bottom pocket of the Synapse and holds all my laptop accessories and cords in one place.  I don't know why it never occurred to me before to consolidate all my cords in a smaller bag, but this has proved very convenient.

A Backpack? Aren't you worried about looking unprofessional?

Now that my practice focuses primarily on mediation and less on litigation, I worry less about appearances and more about practicality and efficiency.  Clients who come to my office want solutions not a hired gun, and they respect efficiency more than flashiness.  I have used messenger bags and briefcases and my biggest complaint about both is that they are not comfortable over a lengthy period of time.  Even if you have a light laptop, when you start adding cords, and tablets and other accessories, your bag will have considerable weight.  Just adding a water bottle makes a huge difference in how long I can put up with a messenger bag over one shoulder.

While still a backpack, the Synapse straddles the line of professional and practical.  Without getting into a full feature review, there are two features I think highlight this thoughtful design:

First, the Synapse is designed around a central water-bottle sized pocket, which makes it more comfortable to carry for a distance with a heavy bottle.  This is an ingenious backpack improvement if you've ever hiked with a backpack that holds the water bottle hanging off to the side. Despite having this amazing hiking feature, it still has a very simple straightforward design that doesn't have to look like you're hiking.  The other simple design element that adds to the professional look of the Synapse is the inclusion of removable chest and waist straps.

Ultimately, I decided that the comfort of a backpack far outweighed any concerns that it might not be as stylish with a suit.  The Synapse allowed me to retain as much style as possible in the backpack form, especially with the significant array of color combinations (my color choice was gray with purple lining - matching one of my favorite suit & tie combinations).

P.S. Working with nice people is nice! The final point I want to make is one that wasn't even on my radar when I started looking for a new work bag.  I am admittedly lazy at times regarding the quality of the company that I am buying from.  As the owner of a small business, I make so many purchasing decisions that sometimes I don't take the time to get to know who I'm doing business with.  But once in a while a company reminds you why that matters.  Tom Bihn, as a company, impressed me in two immediate ways that make me want to see them succeed:  great customer service and local manufacturing pride.

Hollie, their Bag Guru, e-mailed back and forth with me for three days (replying almost immediately every time) to answer every question I had about the Synapse and how it might fit my needs.  This attention to detail seems to be present in their attitude about how they manufacture their products as well. Manufacturers have a lot of cheap options for materials and labor outside the United States, but Tom Bihn tells you on their website about the importance they place on making their product in America.  Even more impressive than the sentiment is the fact that their whole operation is visible on their website: including a web-bio for each of their seamsters and seamstresses.  How unusual and cool is that!

Customer service is something you just can't fake, and while it doesn't drive my initial buying choice as often as it should, it will bring me back to a company again and again.  Tom Bihn was kind enough to provide me with this Synapse 25 to review, but I am so impressed by it and them that they have been bookmarked as my first site to visit the next time I need any type of travel, fun or work bag.

Friday, January 30, 2015

Can I Modify my Alimony? Updated Flowchart.

The SJC reached a decision on 1/30/2015 on three cases that interpreted the modification provisions of the Alimony Reform Act.  The SJC disagreed with our prior interpretation and decided that the provisions on retirement age and cohabitation can not be read retroactively.  To read more on these decisions check out our post here: Lifetime Alimony is Back (for some)! - Chin v. Merriot.

If your case is a post March 1, 2012 case then all of the Act's provisions apply to you and your case would be modifiable pursuant to the terms of your Judgment read in conjunction with all provisions of the Act.  The following flow-chart depicts the decision tree for determining whether you qualify for a modification of a Massachusetts alimony order under The Alimony Reform Act of 2011 if your original divorce was completed prior to March 1, 2012:

You may reprint or distribute this Infographic on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

Click here for more information about Modifications in Massachusetts.

Lifetime Alimony is Back (for some)! - Chin v. Merriot

Three months ago we told you about three very important pending cases that were argued before the Massachusetts Supreme Judicial Court, all three having to do with the issue of alimony modification. Today, the SJC released their decision on these three cases (Chin v. Merriot, Rodman v. Rodman, and Doktor v. Doktor) and in doing so they have created two clearly separate classes of alimony cases: those cases that were decided prior to March 1, 2012 and those that were decided after March 1, 2012.

On March 1, 2012, the Alimony Reform Act took effect, and it included limits on the amount and duration of alimony orders going forward.  It was the law before the Act, and still is, after the Act, that alimony orders which are merged into the Judgment are modifiable if there has been a material and significant change in circumstances.  The Act also provides that the duration of old orders can be modified based solely on the "durational limits" in the new Act, even if there hasn't been a change in circumstances.

The question that the SJC faced in these three cases is whether the duration of alimony could be modified on pre-Act cases for any limitation in section 49 of the statute, or only based on the specific duration limits that apply to marriages that were less than 20 years in length: section 49(b) only.  This is a significant issue because for post-Act cases alimony can be terminated upon reaching full Social Security retirement age, or if the recipient shares a common household with someone new.   If these provisions don't apply to pre-Act cases then "lifetime alimony" will continue for any pre-Act alimony payors and recipients who were married for more than 20 years.

The SJC in Chin v. Merriot determined that "both the retirement provision and the cohabitation provision apply prospectively" only.  The Court bases its decision on principles of statutory construction which require that each word be given its plain meaning unless otherwise defined.  The Act in Section 4 makes an exception for retroactive application only for "existing alimony judgments that exceed the durational limits under [G. L. c. 208, § 49,]."  But the Act fails to define "durational limits" beyond its plain meaning, which according to the SJC in both Chin and Rodman, means that the prospective exception can only be referring to section 49(b).

Prior to these decisions, the prevailing belief, which the Act was criticized for (including in this WCVB news report), was that all the duration provisions in section 49 applied retroactively, including the retirement and cohabitation provisions.  Some believed this was unfair to recipients who depended on these funds, but many believed the Act allowed for this modification because of the language in section 6 of the act which allows modification to be sought on or after March 1, 2013 by "...any payor who has reached full retirement age, as defined in [G. L. c. 208, § 48,] or who will reach full retirement age on or before March 1, 2015."  This section seems superfluous if retirement is not including as a "durational limit."

While this is not addressed in Chin, this argument was raised in the oral argument in Doktor v. Doktor and the SJC explains in Doktor that Section 6 has to be read in conjunction with Section 5 and therefore:
"Read together, uncodified §§ 5 and 6 establish that, where a payor who had been married to a recipient for fewer than twenty years seeks to modify an alimony obligation based on the durational limits of G. L. c. 208, § 49, and the payor also will "reach full retirement age on or before March 1, 2015," the payor may file a complaint for modification on or after March 1, 2013, '[n]otwithstanding clauses (1) to (4) of [§] 5'."  
Essentially the SJC has decided that Section 6 is just a very narrow exception to the filing dates in Section 5.   While I personally believe that it is very unlikely that this was the intention of the legislature or drafters, the reality remains that there was an ambiguity left in the Act which left room for this interpretation.  If  Section 4 referred directly to the portions of section 49 by letter, there would be no ambiguity.  However, it did not and unless the legislature makes a change, now that the high court has ruled there is no longer an ambiguity on how the Act will be applied.

If you settled your case or it went to Judgment prior to March 1, 2012 and your marriage was longer than 20 years, then the same standard does not apply to your case as applies to people divorcing now.  Some will think that's fair and others won't, but the bottom line is that for some "lifetime alimony" remains the law... but only for some.

Thursday, January 8, 2015

Let the Judge Decide! - The End of Conflict or Just the Beginning?

"Let the Judge Decide!"  

How often have I heard that in my career as a divorce attorney and mediator?  Too many times to count.

In many cases, when a spouse or their attorney feels that they are unable to reach an agreement with the other side, they simply decide to put the issue to the Judge.  After all, that's the Judge's job.  The whole reason we have a civil legal system is to resolve disputes in a civilized way between adults, but that system is far from perfect.

Have you really been told the truth about what it means to "let the Judge decide?"

The Probate and Family Court as a division of the trial court is an (almost) free service available to all members of the public over whom they have jurisdiction.  They will not provide you with a free attorney in most cases, but there are free law libraries throughout the state, and the court will provide you with the necessary forms and an interpreter if you have the need.  If you have a civil dispute, such as a divorce, and are unable to reach an agreement, the Probate and Family Court is a resource that can help you reach a decision.  You have every right to "let the Judge decide" for you, but:

You may not like the resolution or the process.  
In fact you probably won't.

The Probate and Family Court system is a one-size fits all system.  Treating everyone equally has both advantages and disadvantages.  Be prepared for long lines and overworked court staff.  The process of resolving your case may not seem like rocket science, but you are not the only case they have to resolve.  The Massachusetts Probate and Family Court had 156,531 total cases filed in fiscal year 2014.

Middlesex County alone had almost 5,000 divorce and related cases filed in that same year (and 26,092 total cases).  That might not seem like a lot of customers in one year, until you realize there are only eight judges in the Middlesex County Probate and Family Court and they will have to see all of those cases at least once.  In addition, the contested cases will have multiple hearings and many of the cases from previous years are still open.

In our experience, the Judges genuinely try hard to give every person in front of them a fair chance to be heard and to make a reasonable decision.  But practically speaking, they can't give that many cases close attention.  You do have a right to a trial, and a right to have a Judge decide an issue if you believe that your ex is being unreasonable, but don't be fooled into thinking the Judge will make that decision with all the relevant information.  There just isn't enough time.

In order to serve as many people as possible the court is forced to apportion rough justice and hope that it's good enough.

Rough Justice is not good enough for families.

We recently posted about a heartbreaking case in which a father, who the court admitted was an abuser, was granted custody of his children.  That may seem like a crazy result, but reading the full decision it was obvious how hard a case it was, and how difficult it was for the trial court and the Appeals Court to come to that decision.  While we agreed that the court may not have had a better choice under the law, the family certainly had better options for resolving their disputes.  Extended litigation only put the children of that family at higher risk of abuse, regardless of which household they were in.

The Judge's best option is rough justice because they are limited by the law and time.  They will not hear all the facts of your case.  Some relevant facts are excluded by the rules of evidence, and many more will be excluded because they just don't have enough time to hear it all.  You may believe the Judge would agree with you if they knew everything you knew, and you might even be right, but the Judge will never know everything you know about your case.

Even if the Judge agreed with you, the law limits what the Judge can order you to do, while your options in dispute resolution are practically endless.  For example, even if a parent coordinator might be a great option in your case, recent case law suggests that a Judge can't assign a Parent Coordinator over one party's objection.  You've not only limited the possible solutions by letting the Judge decide but you've also accepted that a stranger with imperfect information will make a decision about the future of your unique family situation.

Maybe, though, in your case rough justice is good enough.  Maybe, you're thinking that at least it's some justice and at least it will be an end to the conflict.  After all, many people just want their divorce case over, before it even starts.  Unfortunately:

It's not over when a Judge decides.

Almost every final decision from a Judge (and even some temporary orders) can be appealed.  That means multiple appellate Judges will second guess the decisions of the first Judge.  It means more time, more money, more frustration, and ultimately if they disagree with the first Judge, it means starting all over again.

One excellent example of this problem is a 2014 Rule 1:28 decision, Sibert v. Sibert, in which the Appeals Court reversed the property division, alimony and attorney's fee awards of the trial court.  Essentially the parties were being sent back to the first Judge to do almost everything over again.  The primary reason behind the Appeals Court's decision to remand these issues was the failure of the trial Judge to provide adequate findings to rationally support the decisions.  As lawyers, we're use to hearing these types of legal explanations for an appeals court handing a case back to the trial Judge, but to a client it must seem absurd.

The higher court is essentially saying the lower court didn't do their job well enough.  The decisions might even be right, but the Judge didn't write enough of their work down so they can't tell if the solution is correct.   How many people would say "let the Judge decide" if they understood what they were really saying was "let the Judge decide, and then if we don't like it we'll let some other Judges decide if this Judge needs to decide again, and so on..."

Since, many people can't afford an appeal, you may think that an appeal is a low risk and not worth worrying about in your situation.  But wait, there's more:

Even once a decision is final, it probably isn't over.
Modification and Contempt:

In your personal experience are people more likely to complete a task when they agree to do it or when they're told to do it?  It's human nature to rebel against a decision or order we believe is unfair.  Probate and Family Court orders and judgments are no exception.

Divorced spouses who reach an agreement will sometimes fail to live up to that agreement, or seek to make changes.  After all we can't predict everything.  However, the odds of returning to court are much higher if you let the Judge decide the first time and it should be obvious why.  If you needed the Judge to tell you one thing, why not everything?

In 2014, there were 18,291 Contempt cases filed and 31,788 Modification cases filed in the Massachusetts Probate and Family Court.  That's 50,000 times someone wasn't happy with their prior judgment, in 2014 alone, almost one third of all the cases filed in 2014.

Not only do those cases split the Judges attention even further, they demonstrate a failure of the system to work in the first place.  Letting the Judge decide is not just a choice about the current issue in front of you right now, but it is also a choice about how you will decide all future issues.

A Better Way to Resolve Conflict?

While many people are only aware of one way to get divorced, there are in fact many different ways to complete a divorce in Massachusetts.  Because of the legal nature of a divorce, and the media portrayal of high profile court battles, many people aren't aware that court doesn't have to be your first stop in a divorce.  In fact, your divorce might be a lot more efficient, civil and cost-effective if court is your last stop.  Collaborative Law and Mediation are just two of the processes by which you can resolve a divorce case before going to court.

Even when settlement seems impossible, dispute resolution processes offer many tools and resources to help you find long-lasting solutions.  If you are able to resolve all of the issues through a dispute resolution process and reduce them to a written agreement, then you will avoid having a Judge make important life decisions for you.  More importantly, you might just set the tone for how you and your ex-spouse resolve any future disputes.

Wednesday, January 7, 2015

Appeals Court confirms Survived Agreements are not Modifiable, even under the Alimony Reform Act: Lalchandani v. Roddy

This post written in collaboration with Jason V. Owens, Esq. of Stevenson & Lynch, P.C.

The Appeals Court recently decided another alimony modification case, Lalchandani v. Roddy (AC 13-P-1988), but don't get excited.  The case doesn't contain any revelations.  The issue presented in Lalchandani v. Roddy is whether a husband who has reached federal retirement age can seek to terminate his alimony obligation, despite a survival clause prohibiting modification in a divorce agreement, where the parties subsequently agreed to reduce the husband's alimony after the divorce.  In this case, the flaw in the husband’s argument was easy to spot: the modification agreement that the parties entered after the divorce also contained a survival clause that prohibited any further reduction in the alimony unless husband becomes “totally disabled such that he is completely prevented from working”.

Since, the Alimony Reform Act is quite clear that surviving alimony provisions cannot be modified under the Act, the only real issue in the case was whether the survival clause in the judgment was ambiguous.  Unsurprisingly, the Appeals Court found that the “total disability” clause in the modification agreement was clear and enforceable, and denied the husband’s request to terminate alimony on the sole basis of his age. (Husband did not allege that he was totally disabled.)

Frankly, it is somewhat surprising that the Appeals Court elected to publish this opinion, given the narrow scope of the decision.  Even more interesting, the Appeals Court flagged the bigger issue that the SJC is now working on: namely, whether the duration limits on alimony set forth in the 2011 alimony reform act apply to any alimony orders pre-dating the effective date of the act, March 1, 2012.  In Lalchandani v. Roddy, the Appeals Court flirts with deciding whether modification of alimony orders under the alimony act are strictly prospective, stating, “it is true, as the husband points out, that the act provides that general term alimony orders terminate upon a payor attaining full retirement age …” However, the Court pulls back at the last second in Footnote 9, explaining that the Court “need not” determine “whether the act is prospective only” as a general matter, since the Court was able to resolve the case on other grounds.

We'll have to continue waiting for a decision on the three outstanding SJC cases for guidance on whether the Act can modify alimony on pre-Act agreements and judgments.

Stay tuned!

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