Wednesday, April 2, 2014

Alimony Statute Construed: No Credit For Time Served!

Today the Massachusetts Supreme Judicial Court just decided, in Holmes v. Holmes (see and view the oral arguments here) that temporary alimony, awarded before final judgment in a divorce action, does not have to be credited toward a calculation of the maximum term of general term alimony.   This means that if temporary alimony is awarded, as it often is, during the pendency of a divorce action, there does not have to be "credit for time served" (to use my own, admittedly imperfect analogy to criminal sentencing) in determining the ultimate award of general term alimony when the divorce is finalized.

I just read the decision, as it was released online today.  I had expected, like my colleague Jonathan Eaton, for the Court to rule differently, or for at least some of the justices to offer a dissenting opinion. I also expected better and more thoughtful analysis in the opinion, and am not at all sure I agree with the conclusions made.

The relevant alimony statutes, as amended by the 2011 alimony reform law that went into effect in 2012, do not make clear the relationship between temporary alimony and general term alimony awards.  The appellant in this case is certainly not the only one who assumed he would get credit for his ¨time served¨paying temporary alimony.   Like it or not, the Court at least answered the question pretty decisively, and now if folks don´t like it -  in the alimony reform movement, for example - they can gather forces to try to amend the statutory provisions yet again.

A big reason why I am not sure I like this decision is the arguably unfair results I am imagining in cases of short-term marriages where the maximum general term alimony would be much shorter in duration than in this case, say two or three years, for example, and so tacking on temporary alimony, during litigation of a year or two or even longer, could very substantially increase the effective length of alimony commitment relative to the length of the marriage. There are also the obvious problems that flow from the incentive this decision may give to alimony recipients to prolong divorce proceedings to increase the total alimony payout period.

For an excellent and much more detailed explanation of the decision, and what it means for family law litigants, see Justin Kelsey´s blog of today.

Meanwhile, at least for now, all you guys and gals who may have to pay alimony, you should know that until the statute is changed again, there's no guaranteed "credit for time served."

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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