Massachusetts attorney Nicole K. Levy reviews some of the complexities surrounding the “length of the marriage” when calculating alimony.
The biggest factor in determining the duration of alimony after a divorce is the length of the marriage. In many cases, this calculation is quite simple, as the court simply counts the number of months between the date of the marriage and the date that the divorce papers were served on either spouse. However, this is not always as clear cut as one would imagine, as exemplified recently in a previous blog concerning when a marriage begins.
As that blog illustrated, in some cases, determining the start of the marriage can be deceptively complex. Similarly, the end of the marriage can be murky, where you have parties filing multiple pleadings, and even more complicated when spouses have filed and dismissed prior complaints for divorce. A recent case from the Appeals Court adds some guidance to the opposite end, namely, at what point does the marriage terminate.
Balistreri v. Balistreri: When Does a Marriage End for Alimony Purposes?
A recent Appeals Court case, Balistreri v. Balistreri (2018), involved a husband and wife who were married on March 26, 1995. While the start date of their marriage was set, the date of its termination was muddied by multiple filings related to divorce and child support. In its factual summary, the Appeals Court described the procedural history as follows:
- Two complaints by the wife for child support and one for divorce between October 1996 and April 2000, none of which ended with a court judgment;
- A complaint for child support that was filed by the wife on January 11, 2005 that led to a court judgment, but not a judgment of divorce;
- A complaint for divorce filed by the wife that was filed on June 3, 2005, but was dismissed, apparently for inactivity;
- A contempt filing and a modification complaint filed by the wife on June 11, 2008, seeking a modification to the child support agreement from January of 2005, as well as a new request for alimony. A judgment on child support was entered on July 31, 2009, but the new alimony request led to a trial that ended with an alimony order against the husband; and,
- A filing for divorce by the husband on April 14, 2011, which led to a judgment of divorce on April 6, 2014.
Notably, an appeal of the 2014 judgment reached the Appeals Court in 2016, in which the Appeals Court expressed confusion over how the Probate and Family Court calculated the duration of alimony in an unpublished opinion:
We cannot tell from the judge's explanation why he selected seventy months for the duration of alimony, and we therefore are not in a position to review his reasoning.
As a result of the confusion, the Appeals Court remanded the duration issue to the Probate and Family Court for further trial. (It appears the parties have appeared before the Appeals Court on multiple occasions.) The original trial was heard by Hon. Spencer M. Kagan of the Middlesex Probate and Family Court. The remand was heard by Hon. Randy J. Kaplan in Middlesex. Following Judge Kaplan’s decision on the remand, the former wife appealed.
The question before the Court in both appeals seemed simple: when did the marriage end? But the answer was complicated. Did the marriage end when the wife asked for child support and filed for divorce in January of 2005, only to have the divorce complaint dismissed? Or was the marriage truly over when the husband filed divorce papers in April of 2011?
In this case, the difference of more than six years between these two filings had a major impact on the duration of alimony that could potentially be awarded under G.L.c. 208 s. 49. Under the Alimony Reform Act, if the marriage ended in January of 2005, then alimony would last for 60% of the length of the marriage, making the payor spouse obligated to pay alimony for 70.8 months. However, if the marriage ended in April of 2011, then the duration of alimony would be for 80% of the length of the marriage, or 154.4 months, more than twice the duration. Accordingly, both parties held positions based on their respective financial interests. Regardless of the amount of alimony payments, doubling the duration will certainly have a financial benefit and/or a financial burden to the parties.
End of the Marriage: Dismissed Divorce Complaints and Child Support Filings Not Sufficient
In this particular case, the Alimony Reform Act (ARA) was not much help. Section 48 of the ARA 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.” Obviously, this provides little guidance when there are several filings, like in Balistreri.
However, the Appeals Court in Balistreri recognized this issue and began by narrowing down the possibilities for the date of termination. Applying the rule from the prior case Sbrogna v. Sbrogna, a case we blogged about before, the court in Balistreri eliminated all filings that did not result in a judgment. This piece alone is important to note. Filings that do not lead to a judgment, whether done in good faith or done frivolously to try and end a marriage early, will not be considered in the alimony calculation under G.L.c. 208 s. 49.
Further, the Balistreri court determined that, because the ARA is the statute for alimony, only the complaints relating to alimony could be used as a “petition for…separate support” that was sufficient to demarcate the end to a marriage. (Complaints for modification to spousal support would work, as well.) Thus, a complaint for child support, as the wife had filed in 2005, would not qualify as a complaint that would trigger the end date of the marriage, even if the child support action went to judgment. This is another important distinction, as simply filing for child support does not stop the clock running for alimony.
Applying these rules, the only two possible filings could be used to show the marriage had terminated under the ARA in Balistreri were (1) the wife’s complaint for modification of spousal support filed on June 11, 2008; or (2) the husband’s April 14, 2011 divorce complaint.
Where Multiple Filings Could Signal End of Marriage, Judges Have Discretion
Faced with two possible filings to mark the ending of the marriage—and the starting of the clock for durational alimony—the Balistreri court noted that “the statute itself does not give any priority or weight to one particular qualifying pleading or the other.” Therefore, the Court determined that the best course of action was simply to punt the question back to the judges in Probate Court, allowing lower court judges to exercise their discretion while “taking into account the totality of the circumstances.” One of those circumstances, though not necessarily dispositive, was the “temporal sequence of the pleadings.”
This case certainly sets out some solid framework for this specific issue and the Appeals Court outlined some clear guideposts for whittling away pleadings that would have no bearing in calculating the date a marriage ended. Notably, when faced with multiple possible pleadings, even after the application of their own guidelines, the court remanded and left the ultimate decision in the hands of the trial court judge. Accordingly, discretion of the trial judge will be the final factor in this determination.
Usual Facts and Procedural History in Balistreri
In most cases, determining the end of the marriage is far simpler than in Balistreri, or for that matter in Sbrogna v. Sbrogna, which Attorney Keyes blogged earlier this year. In that case, the Appeals Court significantly extended the length of the marriage by insisting that in cases where the parties amended a Joint Petition to a Complaint for Divorce—a common procedural step made necessary by the state’s silly, antiquated divorce laws—the original filing date of the Joint Petition would not constitute the end of the marriage. Instead, under Sbrogna, the much later date of the Complaint for Divorce (the filing of which was only necessary because the Massachusetts legislature will not fix the statute).
Unlike Sbrogna, which involves a fairly common fact pattern, the volume and timing of filings in Balistreri make the case something of an outlier. Taken together, however, the opinions demonstrate how ever a plainly worded statute can lead to confusion once clever attorneys become involved.
Other Blogs on Alimony Duration
Since the passage of the ARA, the duration of alimony following marriages of less than twenty year has been heavily litigated in Massachusetts appellate courts. Some of our blogs on this topic include:
- End of Child Support is Grounds for New Alimony Order in MA Appeals Court Case - Includes analysis of alimony duration in cases where parties waived current alimony in divorce agreement, but one party returns to court seeking alimony in future pursuant to a Complaint for Modification.
- Appeals Court Increases Confusion Over Alimony Duration with Ruling that Burdens MA Probate & Family Court Judges - Reviewing the Sprogna decision, which created confusion over alimony duration in cases in which parties amend a Complaint for Divorce to a Joint Petition due to arcane Massachusetts procedural rules.
- When Does the Clock Start Running for Durational Alimony in Massachusetts? - Reviewing the Snow case, which created an exception to ordinary rule that the clock for durational alimony starts running at the judgment of divorce.
- Should Alimony Start After Child Support Ends? - Reviewing whether the end of child support can trigger a new alimony order.
- When Can a Judge Extend Alimony Beyond Federal Retirement Age Under the Alimony Reform Act? - A blog about the closely related issue of when a judge can deviate from the rule terminating alimony when a payor reaches retirement age.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.