Appeals Court Increases Confusion Over Alimony Duration with Ruling that Burdens MA Probate & Family Court Judges

Kimberley Keyes

Divorce lawyer Kimberley Keyes reviews a recent Appeals Court decision that will complicate alimony cases in Massachusetts.

Divorce clients who are facing an order to pay general term alimony often wonder how long their obligation may last. Under the Massachusetts Alimony Reform Act (ARA), the answer depends on the length of the marriage. For example, in a marriage lasting more than 15 years but less than 20 years, the length of the alimony order is limited to 80% of the length of the marriage. For marriages of 20 years or more, there is no durational limit on alimony, which instead terminates upon the payor reaching federal retirement age or the recipient cohabitating with a new partner (so long as the parties were divorced after 2012).

If the many rules affecting the length of alimony obligations seem confusing, that is because they are. We have written dozens of blogs covering the intricacies of the ARA, which is a complex statute. In this blog, we will use a recent Appeals Court decision to explore a simple question: how is the length of the marriage determined?

A Recent Appeals Court Decision Explores Alimony Duration in Massachusetts

Generally speaking, the alimony law defines “length of the marriage” as “the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support.” But what if more than one complaint for divorce was filed? In a January 18, 2018 decision written by Justice Gabrielle Wolohojian, the Massachusetts Appeals Court held that the “length of the marriage” is not based on when the first Complaint for Divorce was filed, but rather on the date of the Complaint that actually resulted in the parties’ divorce.

Although few divorce cases involve the filing of multiple Complaints for Divorce, the case is a useful opportunity to review how courts calculate alimony duration based on the length of the marriage.

Both a Complaint for Divorce and a Joint Petition Were Filed

In Sbrogna v. Sbrogna (2018), the parties were married in June 1973. The husband filed a complaint for divorce in November 1990 under G.L. c. 208, §1B, alleging irretrievable breakdown of the marriage. The parties disagreed whether the wife was actually served with the husband’s complaint (there was no documentary evidence of service.) In 1991, the husband filed motions which were never acted upon. Indeed, nothing further happened in the case until July 1993, when the complaint was marked “inactive” by the probate-court register’s office.

Nearly one year later, in June 1994, the parties filed a joint motion to amend the husband’s complaint to a joint petition for divorce, which the spouses filed along with a separation agreement. The court allowed the motion to amend and the husband’s complaint and proceeded to enter its judgment under G.L. c. 208, §1A as an uncontested divorce on July 29, 1994, with the Judgment of Divorce Absolute entering on October 28, 1994.

Unsurprisingly, the timing of the two court filings became a major issue in the case. As discussed above, if the “length of the marriage” is between 15 and 20 years in Massachusetts, then the duration of alimony is limited to 80% of the length of the marriage. If the “length of the marriage” is greater than 20 years, this limitation does not apply. Accordingly, we note that the parties were married in 1973, the husband’s original Complaint for Divorce was filed in 1990 (i.e. 17-year marriage) and the Joint Petition was filed in 1994 (21-year marriage).

Husband Files Modification of Alimony, Wife Moves to Dismiss

In 2016, the husband filed a complaint for modification seeking to terminate his alimony obligation. The husband used the 1990 filing date of his Complaint for Divorce to argue that the length of the marriage was 17 years, meaning the duration of alimony should be limited to about 13.5 years under the ARA. (Again, for marriages of 15 to 20 years, the ARA limits the duration of alimony to 80% of the length of the marriage.)

The wife filed a motion to dismiss the husband’s Complaint for Modification, arguing that the marriage did not end until 1994, when the joint petition for divorce under §1A was filed. Accordingly, the wife argued that the actual length of the marriage was 21 years, placing the alimony order outside the durational limits that apply to marriages of less than 20 years.

It is worth noting that the husband would have little chance in this debate if the Court had dismissed the 1990 Complaint for Divorce due to inaction, as it should have. Because the 1990 case was left open, however, and the parties chose to formally amend the husband’s complaint to a Joint Petition, the door was opened for husband’s argument that 1990 represented the true end of the marriage for alimony purposes.

Not All ARA Provisions Cover Alimony Orders from Pre-2012 Divorces

Before going further, it is critical note one peculiar detail about the ARA. As we have discussed extensively in this blog, three Supreme Judicial Court decisions in 2015 resulted in parts of the ARA only applying to alimony orders that entered after the March 2012 effective date of the statute. As a result of these decisions, some parts of the ARA apply to modifying pre-2012 alimony orders and others parts of the ARA do not:

  • ARA AppliesDurational Limits – Under the SJC rulings, the durational limits for marriages of less than 20 years can be used to seek a termination of alimony through a Complaint for Modification.
  • ARA Does Not ApplyRetirement Age – Under the SJC rulings, the provision of the ARA that provides that alimony terminates when the paying party reaches federal retirement age does not apply.
  • ARA Does Not ApplyCohabitation – Under the SJC rulings, the provision of the ARA that provides that alimony will be reduced or terminated when the party receiving alimony remarries or cohabitates with a new partner does not apply.

In Sbrogna, the parties were divorced in 1994. Accordingly, the husband was limited to seeking termination of alimony based on the ARA’s durational limits for marriages under 20 years. This made it crucially important for the husband to convince the judge that the “length of the marriage” was less than 20 years. Where the divorce entered before 2012, the husband would not be able to seek termination based on him reaching retirement age or the former wife remarrying or cohabitating with a new partner.

Which Pleading Controls: The Husband’s 1990 Complaint or the 1994 Joint Petition?

The Appeals Court had to decide which pleading (i.e. the 1990 Complaint for Divorce or the 1994 Joint Petition) should be used to determine the end date of the marriage. The Court chose the Joint Petition, finding that the end date for the marriage was the date of filing of the 1994 Joint Petition and not the husband’s 1990 complaint. As a result, the parties were “married” for alimony purposes for more than 20 years, thus the husband’s Complaint for Modification was properly dismissed.

In Sbrogna, the Court noted that the alimony statute defines the “length of the marriage” as “the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the Commonwealth or another court with jurisdiction to terminate the marriage.” (Where the ARA specifically assigns the end date as the date of service of a complaint, it certainly didn’t help matters that the husband was unable to show proof that he actually served the wife with the 1990 Complaint.)

The Court ultimately accepted the wife’s argument on the following grounds:

[The ARA] refers to “a” complaint or petition in the singular, indicating that the Legislature contemplated only a single relevant complaint or petition for purposes of the definition. The latter part of the definition states that the pleading must have been filed in a court with the authority to terminate the marriage. This suggests that the relevant pleading is the one that results in a valid judgment of divorce.

Thus, where the Joint Petition was the instrument that resulted in the final judgment of divorce, the Court held that the date of filing of the Joint Petition constituted the end of the marriage for the purposes of calculating alimony duration.

Using a Pleading Other Than the One on Which the Divorce Judgment Entered Would Be “Nonsensical” and “Absurd”

In Sbrogna, the Court held that accepting the husband’s position:

[W]ould lead to the nonsensical result that service of a pleading that leads neither to a valid divorce nor to an alimony award could nonetheless serve as the basis for calculating the length of a marriage and the duration of alimony, even if the parties reconciled and lived together for decades before ultimately divorcing.

The Court relied on language from Duff-Kareores v. Kareores (2016), stating, “[i]f a sensible construction is available, we shall not construe a statute … to produce absurd results” (quotation omitted). In addition, the Court found:

[A] contrary reading of the statute would be extremely difficult – if not nearly impossible – to apply reliably because it is common to have multiple complaints and/or petitions in divorce cases and their timing is both unpredictable and varied.

Parts of the Court’s reasoning makes good sense in the Sbrogna. For example, in cases where a Complaint for Divorce is filed, but the spouses then reconcile for a long period of time before proceeding with a divorce under a separate filing years later, it would indeed be “absurd” to use the date of the first complaint to calculate alimony.

It has often been said, however, that “hard cases make bad law,” and one might argue the same maxim applies here. The facts of are Sbrogna highly unusual. In Massachusetts, Probate and Family Courts are supposed to dismiss any Complaint for Divorce that a party fails to serve within 120 days of filing. In Sbrogna, the court failed to dismiss the husband’s 1990 Complaint, instead choosing to place the Complaint on an “inactive” list that meant that technically, the case never closed. The parties then reconciled for several years. Then, when the time came for a divorce, the parties chose to file a Joint Petition for divorce instead of entering their agreement on the husband’s still-open 1990 Complaint. It was only through this unusual fact pattern that the case reached the Appeals Court.

A particularly troubling passage within the Appeals Court decision Sbrogna in reads as follows:

Indeed, it is often the case that a contested divorce case beginning with a § 1B complaint later becomes an uncontested divorce by the filing of a joint § 1A petition after the parties have reached a separation agreement. It is also not unusual to see multiple complaints or petitions that never end in a divorce judgment; the start-and-stop procedural history of divorce cases often mirrors the nonlinear disintegration -- or repair -- of a couple's marriage.

Lynch & Owens Kimberley Keyes

Puritanism Run Amok: Appeals Court Forgets History (and Divorce Statute) in Sbrogna Decision

While it is true that parties frequently amend their contested divorces to joint petitions in order to get divorced in Massachusetts, this is most certainly not because “the start-and-stop procedural history of divorce cases often mirrors the nonlinear disintegration -- or repair -- of a couple's marriage”.

The reason that parties often amend their contested divorces to joint petitions is, in fact, an antiquated Massachusetts law that forces parties to take this totally unnecessary step in order to get married. Chapter 208, s. 1B is the statute that controls contested no-fault divorce case in Massachusetts. This statute provides:

No earlier than six months after the filing of the complaint, there shall be a hearing and the court may enter a judgment of divorce nisi if the court finds that there has existed, for the period following the filing of the complaint and up to the date of the hearing, a continuing irretrievable breakdown of the marriage.

In practical terms, this sentence means that parties who reach a final divorce agreement within six months of the case being filed must amend their contested Complaint for Divorce to an uncontested Joint Petition for Divorce if they want to get divorced immediately. The six-month waiting period under 1B is an outgrowth of the same outdated, needlessly confusing paternalism that caused the legislature in the 1970’s to include the highly arbitrary “nisi period” that delays the “final” entry of all divorces for 90 days in Massachusetts.

As we have blogged before, the 90-day “nisi period” is a byproduct of heavy-handed paternalism in the 1970’s, when no-fault divorce first became the law:

[T]he so-called “90-day Nisi period” is frequently criticized in Massachusetts for being a relic of bygone era when the state sought to complicate and slow down the divorce process on moral grounds– i.e. “divorce is bad”, so the state should make it more difficult to become divorced. Indeed, even if one believes that the state should slow down the divorce process, the Nisi period hardly achieves this goal – beyond confusing people over their marital status and creating problems with estate planning and tax filing, as people mired in the Nisi period ask themselves, “am I married or divorced?”

The six-month rule preventing parties from quickly getting divorced under §1B forces parties to amend their Complaint for Divorce to a Joint Petition in order to circumvent a pointless rule that should have been eliminated by the legislature years ago. The portion of the Sbrogna decision suggesting that the reason most parties amend their divorce complaints is because they are reconciling is simply wrong. This poorly written language of §1B forces parties to amend their contested complaints to joint petitions, and the Sbrogna decision is likely to make this already absurd situation worse by creating confusion over alimony duration over a purely procedural issue.

Problems Moving Forward: Parties Must Frequently Amend Divorce Complaints Under Antiquated Massachusetts Law

Moving forward, the Sbrogna decision will create confusion surrounding the duration of alimony in cases where parties amend their contested divorce cases to a joint petition due to the outdated language of §1B. The need to amend a §1B complaint to a joint petition generally only arises when the parties have entered a separation agreement less than six months after the filing of a contested §1B complaint. Given the six month window, it is unlikely that taking on a few months to the “length of the marriage” under the Sbrogna decision will make a huge impact on the duration of alimony. However, in some cases, the addition of a few months could be critical.

Under the ARA, the duration of alimony is calculated on a sliding scale for marriages of less than 20 years. As the length of the marriage increases in 5-year increments, the duration of alimony increases proportionally by 10%:

Length of Marriage

Duration of Alimony

0 to 5 Years

50% length of marriage

6 to 10 Years

60% length of marriage

11 to 15 Years

70% length of marriage

16 to 20 Years

80% length of marriage

20 Years or more

Indefinite Duration

The table above illustrates where the Sbrogna decision is likely to create problems. Imagine a divorce in which the Complaint for Divorce was filed and served exactly 14 years and 9 months (e.g. 177 months) after the date of the marriage. Using an alimony calculator, we see that a 177-month marriage results in durational alimony of 124 months, or 10.3 years. Now imagine that the parties reached agreement 4 months after the complaint was filed. Because §1B forces parties to wait at least six months before allowing a divorce agreement to enter, the parties agree to amend the complaint to a joint petition under §1A. Under Sbrogna, the new length of the marriage will be 15 years and 1 month.

A four-month increase in the length of the marriage, from 177 months to 181 months, has a significant impact on the duration of alimony. If the length of the marriage is 177 months, the ARA provides for alimony lasting 124 months (10.3 years). Extend the length of the marriage by four months, to 181 months, and the duration of alimony jumps to 145 months (12.1 years). In short, tacking on four months to the length of the marriage resulted in an additional two years of extra alimony.

Judges, Attorneys, and Parties Beware: Amending to §1A has New Consequences

Ironically, the individual who most frequently suggests that parties amend their §1B complaint to a §1A petition is the judge who is reviewing the parties’ agreement. This is especially true in cases where neither party is represented by an attorney. In a recent blog, I wrote about remarks made by Chief Justice of the Massachusetts Supreme Judicial Court (SJC), Hon. Ralph J. Gants in a recent speech before the MBA. In his speech, Gants

The burdens we place on our Probate and Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate and Family Court. …. [I]n the vast majority of cases, [judges] need to figure out all these issues when at least one party is without the assistance of counsel. In no other court do we have so many self-represented parties being asked to litigate disputes as complex, as emotional, as enduring, and as life-changing, as in the Probate and Family Court.

Well, the Sbrogna decision just made the job of Probate and Family Court judges a little bit harder. When faced with self-represented litigants who are prepared to enter a divorce agreement less than six months after a complaint for divorce was filed under §1B, judges must now stop and consider whether they should suggest an amendment to a §1B joint petition at all. After all, depending on the length of the marriage, the Sbrogna decision means that an amendment to §1A could have a substantial impact on the length of alimony in the future. Weighing the potential impact is a time-consuming process. The judge must do the following:

1. Determine the date of the marriage.

2. Determine the date the Complaint for Divorce was served.

3. Calculate the length of the marriage in months under §1B, and the resulting duration of alimony.

4. Re-calculate the length of the marriage using the date of filing of the Joint Petition, and recalculate the resulting duration of alimony.

5. Determine on the spot whether the variation in duration warrants an instruction from the bench of a complex and abstract statutory issue that involves considerable math.

Alternately, the judge can simply force the parties to return after the six months has expired. Of course, this means one more case will stay on the judge’s docket instead of settling, and with unrepresented parties, who knows if their agreement will hold for another two months?

Attorneys will need to be similarly mindful about the unintended consequences of amending a complaint to §1A. The need to instruct clients about their concerns may prove especially awkward in cases in which alimony is not currently an issue, but may become one in the future. Separation agreements often hinge on carefully balanced compromises; an instruction to a client about the potential risks associated with the duration of alimony in the future may topple the edifice, causing one or both parties to withdraw their agreement.

Common Sense Solution: The Legislature Should Amend §1B (and §1A While They’re at It)

Of course, all of this trouble could be easily avoided if the legislature simply amended §1B to remove the 6-month “roadblock” that hampers the smooth operation of the chronically underfunded and overcrowded Probate and Family Courts through pointless procedural hurdles. While they are at it, the Massachusetts legislature should eliminate the equally silly 90-day “nisi period”, which serves no purpose beyond creating serious confusion over post-divorce tax filing, along with the equally absurd adultery statute, which makes adultery a felony punishable by not more than three years in jail.

Given that these common-sense changes have been needed for decades, it seems unrealistic to expect the legislature to take action beyond its current pet projects. In the meantime, the burden of cleaning up the legislature’s mess will continue to fall on Massachusetts Probate and Family Court judges, whom our appellate courts never seem to stop burdening with ever-more-complex procedural hurdles.

Think it’s Too Easy to Get Divorced in Massachusetts? Then Increase Funding to the Probate and Family Courts

I will close by noting that “no-fault” divorce is frequently criticized in Massachusetts, despite the Commonwealth having the 2nd lowest divorce rate in the country. As a family law attorney, all I can say is that people who think divorce is “too easy” have never attempted set foot in a Massachusetts Probate and Family Court, where judges are expected to handle 5,000 cases per year with budgets that have been slashed by more than 30% in the last 15 years.

Those of us who work in probate courts understand that every outdated procedural hurdle that prevents individuals from resolving issues amicably and by agreement only slows down and clog the overburdened system. For those who want to make divorce more difficult to achieve, the answer is simple: ask the legislature to fund the Probate and Family Courts so that judges and staff have the resources to handle the extra burden.

About the Author: Kimberley Keyes is a Massachusetts divorce and family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

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