James M. Lynch and Harold A. Mazzio explore the difference between eliminating child support arrears and alimony arrears through a recent Appeals Court opinion.
A recent decision by the Massachusetts Appeals Court made clear that couples who have been through a divorce can informally agree to modify alimony payments through an out-of-court agreement, and that a court will enforce the informal agreement by retrospectively eliminating alimony arrears based on the agreement.
The decision presents a striking contrast between alimony and child support. As Attorney Levy blogged earlier this month, informal agreements to modify child support are rarely enforced by Massachusetts courts, and child support arrears are almost never retroactively reduced by courts.
The takeaway for judges, attorneys and litigants is that informal, out-of-court agreements between parties to reduce or eliminate alimony can (and often will) be enforced by a Probate and Family Court while informal, out-of-court agreements to reduce or eliminate alimony are almost never enforceable by a Court.
Smith v. Smith: Parties Agreed Informally to Reduce Husband’s Alimony
The case, Smith v. Smith (2018), involved a couple who divorced in 2010 before returning to Court in 2016. A high net worth couple during their marriage, alimony was set at $650 per week during the original divorce. However, following the divorce, the husband and wife informally agreed to reduce the husband’s alimony payments nine separate times over the course of four years. None of these agreements was entered as a modification order by the court, and no complaint for modification to the alimony order was filed. The husband, however, relied on the informal agreements with the wife to determine his alimony payments.
According to the Appeals Court’s factual summary, in August, 2015, the wife’s lawyer sent the husband a letter demanding that the husband return to the original alimony rate of $650 every week. The husband acquiesced, but the wife filed a complaint for contempt, claiming that the husband still had to pay the $87,400 that had built up in arrears since the time of the divorce due to this underpayment of alimony under the parties’ informal agreements.
Appeals Court Allows Elimination of Overdue Alimony Arrears
Noting that Massachusetts divorce courts have the ability to modify or eliminate alimony obligations, the Appeals Court reminded everyone that modifying alimony arrears requires a return to the divorce statute, G.L. c. 208, s 34, and not just an examination of the informal agreements made by the parties since the divorce The statute sets out the factors that a court is required to look at, every time it is asked to set or modify an alimony award. Material changes that occur between the time of the divorce and the request for a modification to the alimony order can be used to justify an alteration.
According to the Appeals Court, among the factors that could give rise to a “material change” that justifies a modification was the “post-divorce conduct” of the spouses. This includes when “a former spouse made certain statements and the other spouse detrimentally changed position in reliance thereon.” Where such reliance was reasonable under the circumstances, those agreements could form the basis of a modification that allowed the court to wipe out overdue alimony obligations.
Notably, the Appeals Court remanded the case back to the Probate and Family Court for further hearings, where the probate court judge had eliminated the husband’s alimony arrears based largely on the terms of the agreement between the parties, and the husband’s reliance on the wife’s promise to accept less alimony in exchange for the husband taking on additional expenses, such as the graduate school expenses of the parties’ adult child. The Appeals Court held that the probate court’s analysis – which was largely drawn from contract law – appeared to include a valid basis for modifying alimony, but the Court sought additional analysis that focused on the requirements of G.L. c. 208, s 34, such as changes in the wife’s need for alimony, and the husband’s current ability to pay. The opinion creates the distinct impression that the Appeals Court agreed with the outcome reached by the lower court, but that it sought further analysis in order to clarify the legal standard for other cases moving forward.
The Difference Between Eliminating Alimony and Child Support Arrears
The decision in Smith stands in marked contrast to other decisions on child support that we have previously blogged about, such as Ceurvels v. Murphy (2018) and Rosen v. Rosen (2016).
Smith provides a (rather large) window of opportunity for divorced spouses to go to court to enforce informal agreements that they enter outside of court, including agreements to reduce of eliminate alimony. Thus, a party can potentially rely on an out-of-court agreement to not only reduce current alimony, but to potentially reduce past alimony arrears, so long as the court considers the terms of G.L. c. 208, s 34.
This puts alimony modifications at odds with modifications to child support orders.
Because child support orders exist for the benefit of a child and not a spouse, child support orders are not generally modifiable if change is is not approved by a court. Thus, in most cases, an agreement between two parties to pay or receive reduced child support typically cannot be enforced to eliminate child support arrears. While there are a couple of small exceptions to this rule, an informal and out-of-court agreement is rarely enforceable—even if it is made in writing and agreed to by both parents. Notably, a court is likely to at least consider a written agreement between the parties in a request to reduce current child support. For past child support arrears, however, the agreement is unlikely to assist the payor.
The practical reality of the court’s decision in Smith is that spouses who have alimony obligations have a legitimate chance to obtain a retroactive modification that eliminates alimony arrears based on an informal and out-of-court agreement. On the other hand, spouses who have arrears in child support will have to make all of the arrears payments in all but extremely rare situations.
Smith: A Warning About Relying on Out-of-Court Agreements
Although the Court in Smith allowed the husband’s retroactive modification of alimony based on an informal, out-of-court agreement, the Appeals Court includes a clear warning against all litigants relying on such informal agreements in general:
Although a judge may, in appropriate circumstances, retroactively modify alimony, it does not follow that such relief will always be afforded simply because the parties have reached an agreement -- without court involvement -- to reduce the payor's alimony obligation. Indeed, where no court approval has been obtained, the parties proceed at their own risk.
The lesson, it seems, is that support-paying parents and former spouses should always make sure to have an agreement to reduce support formally entered as a court order. Without a court’s approval, such informal agreements simply provide no guarantees for parties down the road.
About the Authors: James M. Lynch is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. Harold A. Mazzio is a law student at Suffolk University Law School.
Schedule a consultation with James M. Lynch today at (781) 253-2049 or send him an email.