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Vermont Bar Association
Seminar Materials
Family Law Track #1
Alimony Reform
October 14, 2016
Lake Morey Resort
Fairlee, VT
Speakers:
Hon. Thomas J. Devine
Hon. Brian J. Grearson
Hon. Kevin W. Griffin
Emily Davis, Esq.
Susan Murray, Esq.
Advocates of alimony overhaul see partial
success
May. 12, 2016, 5:40 pm by Mike Faher Leave a Comment
BRATTLEBORO — As the 2016 legislative session began, Rick Fleming’s goal was to start a
conversation about changing Vermont’s alimony laws.
The Brattleboro businessman accomplished that and more, though the conversation ended
differently than he’d hoped.
Rick Fleming is president of the group Vermont Alimony Reform. File photo by Mike
Faher/VTDigger
The Legislature has asked a state Supreme Court oversight committee — made up of attorneys,
judges and court staff — to report back on its study of Vermont’s alimony guidelines by Jan. 15.
That report “shall include any legislative recommendations for changes” in the law.
Members of Fleming’s group, Vermont Alimony Reform, had been hoping for a direct role in
that study. Nevertheless, Fleming said he’s happy the issue is getting some attention, and he’s
pledging to stay involved.
“The fact that we were able to get (study) legislation passed relatively quickly shows to me that
the legislators understand that there’s a problem that needs to be addressed,” Fleming said.
Alimony reform advocates — which include both men and women — have been lobbying for
more “consistency, predictability and fairness” in spousal support laws. They have been using
their own stories to argue that the state’s statutes are outdated and unfairly burdensome to payers.
Fleming, the group’s president, has been embroiled in an alimony battle that lasted years and
went all the way to the state Supreme Court. The court in 2013 rejected Fleming’s request to
lower his monthly payments to his ex-wife.
The reform organization’s goals include replacing indefinite alimony with terms based on the
length of a marriage; providing guidelines that allow payers to prepare for retirement; and
terminating alimony obligations automatically when a recipient remarries.
Advocates also want more specific alimony guidelines for Family Court judges.
Fleming took those goals before the Senate Judiciary Committee in early March, where he found
both support and skepticism. Also testifying that day was White River Junction attorney Emily S.
Davis, who cautioned against enacting strict alimony laws that might unfairly penalize some
recipients.
“The problem with rigid guidelines is that the issues around alimony are so intensely fact-
specific,” Davis said at the time.
Shortly after that hearing, the Senate Judiciary Committee voted to form a “spousal support and
maintenance task force” to examine the issue. The group would have included legislators, judges,
attorneys and a member of Vermont Alimony Reform.
But that proposal changed as the session continued. Eventually, a House-Senate conference
committee found common ground, inserting language in H.869 that says the alimony study
should be entrusted to the state Supreme Court’s Family Division Oversight Committee.
That panel must make a report to the House and Senate Judiciary committees by early next year.
Chief Superior Judge Brian Grearson, right, discusses the judiciary branch at the Statehouse. File
photo by Elizabeth Hewitt/VTDigger
Vermont Chief Superior Judge Brian Grearson said the Family Division Oversight Committee
“has been working on the idea of alimony guidelines for a couple of years now.” Davis, the
attorney who testified on the alimony issue in March, is one of the committee’s members.
“We’re going to give it our best shot and continue the work we’ve done in this committee, but
perhaps with a different focus,” Grearson said.
Though Vermont Alimony Reform won’t have a seat at the table, Grearson said he will give
members of the court committee all the materials that Fleming’s group has presented. “I
anticipate explaining to them why this came about and why we’re being asked to look at this
issue,” he said.
To the extent that it’s feasible, Grearson said, he is in favor of more consistency and
predictability for those involved in the alimony process. But he also said each case is different.
“Alimony is a complicated, emotional, very fact-driven area of the law,” Grearson said. “It can
become very personal in your view of whether you’ve been treated fairly or not, and I understand
that.”
Fleming said he’s looking forward to the court committee’s work and expects to continue
lobbying for change in Montpelier when the Legislature reconvenes next year. He said two
members of the Senate Judiciary Committee — Jeanette White, D-Windham, and Chairman Dick
Sears, D-Bennington — have been particularly supportive.
“They really pushed this forward,” Fleming said. “We’re excited that it’s on the legislative
agenda.”
White said she preferred an alimony study that included the reform group. But she noted that,
once the court committee makes its report to the Legislature, “there will be public input at that
time.”
Alimony reform “is something we should look at,” White said. “The laws are medieval. I don’t
think they’ve been changed since the 1950s.”
Filed Under: Courts & CorrectionsTagged With: alimony, divorce, Vermont Family Court,
Vermont legislature, Windham County
Mike Faher reports and writes for both VTDigger, and The Commons (Read more
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12 A.3d 500 (Vt. 2010), 09-462, Mayville v. Mayville /**/ div.c1 {text-align: center} /**/
Page 500
12 A.3d 500 (Vt. 2010)
189 Vt. 1, 2010 VT 94
Judy Mayville
v.
William Mayville
No. 09-462
Supreme Court of Vermont
October 21, 2010
Page 501
On Appeal from Chittenden Family Court. Linda Levitt, J.
Mary G. Kirkpatrick of Kirkpatrick & Goldsborough, PLLC, South Burlington, for Plaintiff-
Appellee.
Catherine E. Clark of Clark, Werner & Flynn, P.C., Burlington, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
OPINION
Page 502
Dooley, J.
[¶1] [189 Vt. 4] Husband, William Mayville, who was recently laid off from his job, seeks to
terminate the spousal maintenance payable to his ex-wife, Judy Mayville, pursuant to a 2003 court
order. After husband filed a motion to terminate spousal maintenance, the Chittenden Family
Court issued an order requiring him to pay $ 3000 per month -- the same amount set forth in the
2003 order -- until he stopped receiving unemployment compensation benefits and $ 1500 per
month thereafter. Husband appeals from this order, alleging numerous errors. We affirm.
[¶2] Husband and wife divorced in 2003, after twenty-seven years of marriage. At the time
of the divorce, husband earned more than $ 100,000 per year working as an information
technology manager for IBM. Wife is disabled and has never worked. Pursuant to an agreement
made between the parties at the time of their divorce and incorporated into a court order, husband
was to pay wife $ 3000 per month in spousal maintenance until he turned sixty-five years old. The
2003 court order granted wife fifty percent of husband's pension, among other assets, with
husband retaining the other fifty percent.
[¶3] Six years later, in April 2009, husband lost his job with IBM through no fault of his own.
He was fifty-nine years old on the date he was laid off and had been with the company since age
nineteen -- for approximately forty years -- working his way into a senior management position
despite having only a high school
Page 503
education. He earned $ 110,000 in 2007 and $ 126,000 in 2008, including bonuses. Upon being
laid off, husband received a severance package that included six months salary -- $ 52,000 -- plus
health benefits. His income for 2009, including his salary, pension, and unemployment
compensation benefits, totaled $ 135,000; in other words, his income actually increased for 2009,
the year in which he was laid off.
[¶4] Husband currently lives with his new wife, who earns approximately $ 50,000 annually,
and his major assets include a home with $ 136,000 equity in it and a 401(k) account valued at $
150,000. Husband has made little effort to seek new employment since being laid off. He plans to
retire from work and live off of his [189 Vt. 5] $ 3715 monthly pension and his unemployment
compensation benefits until they expire. This plan is possible, in part, because his household
expenses are reduced as a result of his new wife's contribution to them.
[¶5] Wife presently lives off of her spousal maintenance and $ 1405 a month in Social
Security benefits. She has never worked, due to her disabilities, and she incurs significant medical
expenses. She was sixty-five years old at the time of the modification hearing.
[¶6] On April 17, 2009, ten days before his position at IBM ended, husband filed a motion to
terminate spousal maintenance with the Chittenden Family Court. The court held a preliminary
hearing on the motion in June and an evidentiary hearing in October. The court concluded that
there had been " no substantial change of circumstances for 2009" in that husband's annual
income for that year was actually higher than the income for previous years. The court accordingly
ordered husband to pay $ 3000 in spousal maintenance for November and December 2009. The
court further concluded there would be " no substantial change of circumstances during the period
for which [he] receive[d] unemployment benefits" either, as " [a]dding up his monthly pension,
unemployment payments, imputed income at a minimum wage, full-time job and his wife's
contribution to the household income, leaves [him] close to what he had been earning at the time
of the final order." The court did, however, conclude that a substantial change of circumstances
would occur once husband's unemployment compensation benefits ended. At that point, the court
ordered that husband's maintenance obligation be reduced to $ 1500 per month, until he reached
age sixty-five, when it would terminate completely pursuant to the 2003 court order and agreement
between the parties.
[¶7] Husband argues on appeal that the family court erred in concluding that the loss of his
job would not result in a " real, substantial, and unanticipated change of circumstances" until his
unemployment compensation benefits ran out. See 15 V.S.A. § 758. In particular, husband argues
that the court erred by: (1) considering his pension as a source of income; (2) presuming that he
could receive unemployment compensation benefits and a full-time minimum-wage income at the
same time; (3) considering his new wife's income; (4) failing to consider his increased health
insurance expenses; (5) failing to consider wife's improved financial [189 Vt. 6] circumstances; and
(6) ruling in a manner inconsistent with reasonableness, fairness, or equity. We address these
arguments in turn.
[¶8] A court may not modify a maintenance order unless it finds that there has been a " real,
substantial, and unanticipated change of circumstances." 15 V.S.A. § 758. As we have previously
held, " [t]he burden for showing a change in circumstances is a heavy one, and lies with the party
seeking the modification,"
Page 504
in this case, husband. Wardwell v. Clapp, 168 Vt. 592, 594, 720 A.2d 862, 864 (1998) (mem.). We
evaluate whether a change is substantial " in the context of the surrounding circumstances,"
Braun v. Greenblatt, 2007 VT 53, ¶ 11, 182 Vt. 29, 927 A.2d 782 (quotation omitted), and we will
not disturb a trial court's decision on whether to modify spousal maintenance unless " the
discretion was erroneously exercised, or was exercised upon unfounded considerations or to an
extent clearly unreasonable in light of the evidence." Taylor v. Taylor, 175 Vt. 32, 36, 819 A.2d
684, 688 (2002); accord Stickney v. Stickney, 170 Vt. 547, 548-49, 742 A.2d 1228, 1231 (1999)
(mem.) (" A court has broad discretion in determining the amount and duration of a maintenance
award, and we will set it aside only when there is no reasonable basis to support it." ). Our review
is therefore " limited to determining whether the family court's exercise of discretion was proper
and whether a reasonable basis supports the award." Golden v. Cooper-Ellis, 2007 VT 15, ¶ 47,
181 Vt. 359, 924 A.2d 19.
[¶9] We now turn to husband's various claims of error. Husband first argues that the family
court improperly considered his pension as a source of income. As a general matter, although
pensions may be viewed as marital assets, " they may also be considered as a source of income
upon which an award of spousal maintenance may be based." Sachs v. Sachs, 163 Vt. 498, 502-
03, 659 A.2d 678, 680 (1995); see C. Marvel, Annotation, Pension of Husband as Resource Which
Court May Consider in Determining Amount of Alimony, 22 A.L.R.2d 1421, § 2 (1952) (" As a
general proposition, it has been held or stated in numerous cases that the pension of a husband
may properly be considered as a resource in determining the amount of alimony to be awarded to
the wife." ). Husband maintains, however, that pensions must be considered as either a source of
income or a marital asset, but not both. Because the family court divided husband's pension
between the two [189 Vt. 7] parties at the time of divorce, husband argues that the court erred in
taking into account his income from the pension in determining whether to terminate maintenance.
In his view, after the termination of unemployment compensation benefits, he must be treated as if
he has no income available to pay maintenance.
[¶10] We note at the outset that we can find no support for husband's theory in the statutes
governing maintenance awards or in our general treatment of income-producing assets. The
statutes governing maintenance authorize the court to award such amount " as the court deems
just" considering " all relevant factors," including the " property apportioned to the [obligee]," and "
the ability of the [obligor] ... to meet his or her reasonable needs while meeting those of the
spouse seeking maintenance." 15 V.S.A. § 752(b). Nothing in the language suggests income from
marital assets cannot be considered in determining ability of the obligor spouse to pay
maintenance and the amount of such maintenance. Consistent with the statutory language, we
have routinely held that in determining the amount of maintenance, the family court can consider
the income available to the obligor from assets distributed as part of the property award. See, e.g.,
Golden, 181 Vt. 359, 2007 VT 15, ¶ 53, 924 A.2d 19 (holding that husband's stock options could
be expected to generate income and that " [t]his income must be considered in determining an
appropriate maintenance award" ); Kasser v. Kasser, 2006 VT 2, ¶ ¶ 11-14, 179 Vt. 259, 895 A.2d
134 (affirming trial court in awarding hotel business to husband and taking into account
Page 505
income derived from that business in awarding maintenance); Root v. Root, 2005 VT 93, ¶ 4, 178
Vt. 634, 882 A.2d 1202 (mem.) (noting that husband was ordered to pay maintenance specifically
from income derived from rental properties). Under our precedents, the issue is simply whether
one party has a need for maintenance and whether the other party has the ability to pay
maintenance.
[¶11] We see no obvious rationale for distinguishing pension income from this general rule.
A pension is just another type of income-producing asset. See, e.g., In re Marriage of Haney, 267
Mont. 107, 882 P.2d 497, 499 (Mont. 1994); Rattee v. Rattee, 146 N.H. 44, 767 A.2d 415, 419
(N.H. 2001). Pension income is therefore " always an important factor in determining whether
alimony should be paid and how much either spouse should receive. Any source of income is
material to such a determination." G. Blumberg, Marital [189 Vt. 8] Property Treatment of
Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes: An Insurance, or
Replacement, Analysis, 33 UCLA L.Rev. 1250, 1264 n.60 (1986). It was proper, then, for the
family court to consider husband's portion of his pension as a source of income, for " [t]hat is his
money, and it is therefore ... a resource that he has from which to pay [maintenance]." Riley v.
Riley, 82 Md.App. 400, 571 A.2d 1261, 1265 (Md. Ct. Spec. App. 1990).
[¶12] In reaching this conclusion, we recognize that a majority of courts, but not all, have
reached a similar conclusion on this issue. See National Legal Research Group, Inc., Update on
Double Counting, 14 No. 5 Equitable Distribution J. 49 (May 1997); see, e.g., In re Marriage of
White, 237 Cal.Rptr. 764, 767-68, 192 Cal.App.3d 1022 (Ct.App. 1987); Krafick v. Krafick, 234
Conn. 783, 663 A.2d 365, 375 n.26 (Conn. 1995); Acker v. Acker, 904 So.2d 384, 388 (Fla. 2005);
Riley, 571 A.2d at 1264; Zubick v. Zubick, No. 04-P-512, 2005 WL 1573690, at *4, 63
Mass.App.Ct. 1123, 829 N.E.2d 1186 (Mass.App.Ct. 2005); Moreno v. Moreno, 24 Va.App. 190,
480 S.E.2d 792, 799 (Va. Ct.App. 1997). Husband's argument is based on a " double-dipping"
theory that has been widely used by litigants and adopted by a small minority of courts. See, e.g.,
Lee v. Lee, 775 N.W.2d 631, 640 (Minn. 2009); Innes v. Innes, 117 N.J. 496, 569 A.2d 770, 775
(N.J. 1990); Kronforst v. Kronforst, 21 Wis.2d 54, 123 N.W.2d 528, 534 (Wis. 1963); see generally
National Legal Research Group, Inc., supra. The basic premise of this theory is that " it [would] be
inequitable for [a party] to be able to include [the other party's] pension income twice for [his or]
her benefit, first for a share of equitable distribution, and second, for inclusion in [the other party's]
cash flow for determination of an alimony base." D'Oro v. D'Oro, 187 N.J.Super. 377, 454 A.2d
915, 916 (N.J. S.Ct. Ch. Div. 1982). We note, however, that some of the courts in the minority hold
so because of an explicit controlling statute. See Innes, 569 A.2d at 775 (" The plain language of
the pertinent [statute] provides that income from pension benefits that have been treated as an
asset for equitable distribution purposes ... is not to be considered in determining alimony." ). [1]
Page 506
[¶13] [189 Vt. 9] We find nothing inequitable about taking into account the income that husband
presently receives from his pension in determining whether to modify the maintenance payable to
wife. We agree with the American Law Institute's Principles of the Law of Family Dissolution,
which concludes that " [u]nder prevailing law in which [maintenance] is largely need-based, the
double-dipping concern is unfounded." American Law Institute, Principles of the Law of Family
Dissolution: Analysis and Recommendations § 5.04, reporter's notes, cmt. f (2002). Consideration
of husband's pension " would be improper only to the extent that any portion of the pension
assigned to the nonemployee spouse was counted in determining the employee spouse's
resources for purposes of [maintenance]." Krafick, 663 A.2d at 375 n.26. Such a practice would
plainly be inequitable, as it would allocate, for the purposes of determining the obligor's
maintenance base, assets that did not in fact belong to the obligor. See Riley, 571 A.2d at 1264 ("
It is true ... that, in awarding and setting the terms of alimony, the court cannot properly consider
as a resource of the payor spouse property or income that the spouse does not have." ). That is
not the situation we have here. Here, the family court considered only the portion of husband's
pension that he received after the property division in determining whether he could afford to pay
maintenance; the court did not allocate to husband's maintenance base the portion of the pension
awarded to wife.
[¶14] In conclusion, we adhere to the majority rule that in considering the amount of
maintenance to award, or whether to modify a maintenance order, the family court may include as
income to the obligor any income derived from assets, including a pension, awarded to the obligor
in the property distribution. The family court properly applied that rule here.
[¶15] Husband next claims that the family court erroneously presumed that he would "
simultaneously be receiving full unemployment benefits and full time income at minimum wage."
Although we agree that unemployment is a prerequisite to [189 Vt. 10] receiving unemployment
compensation benefits, 21 V.S.A. § 1343(a), we believe that the family court's order does not
impute minimum wage income and count unemployment compensation benefits " simultaneously,"
as husband alleges. In drawing this conclusion, we acknowledge that the court's language was
ambiguous in determining husband's income and expenses for the period after the severance
wages ran out, but before the unemployment compensation benefits ran out. In part, the ambiguity
reflects the uncertainty about how long the unemployment compensation benefits would continue
and, particularly, whether there was any period in which they would continue after the severance
pay terminated [2] Moreover, as the court found, husband's income actually rose in 2009, and
there was uncertainty over the appropriate period for expending that increased income. Under the
circumstances, we conclude that the court estimated husband's expected income based on how
long he likely would continue to receive unemployment compensation and then imputed minimum
wage for the period
Page 507
after unemployment benefits ceased. This was not an abuse of discretion.
[¶16] Husband also alleges that the family court erred in considering his current wife's
income in determining his ability to pay spousal maintenance. Again, we do not disagree with
husband's legal argument in the abstract, but we do not agree with its application to this case.
When a maintenance obligor remarries, a court may not impute the income of the new spouse to
the obligor for the purposes of calculating the amount of the obligor's income that is available to
pay maintenance. See Wardwell, 168 Vt. at 596, 720 A.2d at 865 (indicating that trial court may
not deny motion to modify maintenance award " based on the expectation that [husband] would be
able to pay part of his maintenance obligation from the income of his current wife" ); see also In re
Marriage of Bowles, 916 P.2d 615, 618 (Colo.App. 1995); Moore v. Moore, 2009 SD 16, ¶ 46, 763
N.W.2d 536. We have previously held, however, that a trial court may properly consider the
earnings of a new spouse to determine " the ability of the spouse from whom maintenance is
sought to meet his or her reasonable needs while meeting those of the spouse seeking
maintenance." 15 V.S.A. § 752(b)(6); [189 Vt. 11] see Wardwell, 168 Vt. at 596, 720 A.2d at 865
(holding that, in assessing whether to modify maintenance award, trial court properly considered
successor spouse's income to determine husband's overall financial situation). In other words, the
court may consider the effect that the new spouse's income has on the needs and expenses of the
obligor. See Sowers v. Sowers, No. 114, 1988 WL 113311, at *2, (Del. Oct. 3, 1988) (approving of
family court's conclusion in alimony modification proceeding that, though new spouse's income "
cannot figure in the alimony allotment, it does help to defray the [h]usband's own household
expenses" ); Harris v. Harris, 188 N.C.App. 477, 656 S.E.2d 316, 321-22 (N.C. Ct.App. 2008) ("
[W]here a party's new spouse shares responsibility for the party's expenses and needs, it is proper
for the court to consider income received by the new spouse in weighing the party's necessary
and reasonable expenses and debts against his financial ability to pay." (emphasis and quotation
omitted)). This rule of law is consistent with our rulings in cases where the obligee's expenses are
reduced because of remarriage. See Miller v. Miller, 2005 VT 122, ¶ ¶ 17, 20, 179 Vt. 147, 892
A.2d 175 (holding that remarriage of obligee spouse will allow modification of maintenance order
only if it substantially reduces need for maintenance, but recognizing " that sharing of household
expenses may produce some measure of financial improvement because some of those expenses
are not directly proportional to the number of household occupants" ). Here, the family court did
not impute the current wife's salary to husband or require the current wife to pay part of her
husband's maintenance obligations. It instead credited only her " contribution to the household
income" ; that is, it determined the effect of her income on husband's expenses and ability to
support himself while paying maintenance. We therefore find no abuse of discretion.
[¶17] Husband next argues that the family court abused its discretion by failing to consider
the increase in the cost of his health insurance after his termination from IBM. He testified at the
hearing that he now pays $ 370 per month for health insurance benefits that have a $ 2500
deductible. While employed at IBM, he paid $ 281 per month for health insurance. This issue must
be viewed in light of husband's motion, which requested termination of maintenance, not
incremental reduction of the amount. In light of the motion, the family court did not separately
Page 508
analyze instances where a party's expenses went up in relatively small [189 Vt. 12] amounts in
relation to the overall financial picture. Thus, the court also did not discuss the unreimbursed
medical bills of wife, which caused her to incur about $ 10,000 in credit card debt. Under these
circumstances, the family court apparently did not find the difference in husband's premiums, or
coverage, to constitute a substantial change of circumstances. See 15 V.S.A. § 758. As we stated
at the outset of this opinion, we review changed circumstances determinations only for abuse of
discretion. Taylor, 175 Vt. at 36, 819 A.2d at 688. We find no abuse of discretion.
[¶18] Husband's fifth claim of error is that the family court failed to consider the change in
wife's financial circumstances. At the time of the divorce, husband asserts, wife had no income,
whereas at the time of the hearing, she was receiving approximately $ 1400 per month in Social
Security benefits. We agree that a significant change in the finances of either spouse can warrant
modification due to a real, substantial, and unanticipated change in circumstances. See Miller, 179
Vt. 147, 2005 VT 122, ¶ 16, 892 A.2d 175. We will not automatically reduce maintenance payable
to an obligee, however, merely because of that spouse's improved circumstances. See Ellis v.
Ellis, 135 Vt. 83, 86-87, 370 A.2d 200, 202 (1977) (" It should ... be considered that it would be
poor policy to reward efforts of the former wife to improve her property or situation with a
corresponding reduction in alimony benefits not otherwise warranted. The destruction of admirable
incentive is quite apparent." ).
[¶19] In this case, we do not have to address whether the change in wife's financial
circumstances was substantial because we cannot conclude that it was unanticipated. See Miller,
179 Vt. 147, 2005 VT 122, ¶ 21, 892 A.2d 175 (explaining that economic benefit of cohabitation
with new partner " must be 'unanticipated' to justify a reduction of maintenance" ). The increase in
wife's income came from Social Security benefits based on the income of her first husband.
Although wife had not claimed these benefits at the time of the divorce, the parties were aware of
their availability. In fact, husband testified in the modification hearing that, when they were still
married, he and wife discussed her getting Social Security benefits in the future. The receipt of the
anticipated benefits cannot be the grounds for a change of circumstances that meets the statutory
requirement.
[¶20] For a similar reason, we reject husband's argument that the family court should have
considered that wife's ongoing [189 Vt. 13] healthcare costs were reduced when she enrolled in
Medicare. Her age-based entitlement for Medicare cannot be considered to be unanticipated.
Moreover, in this instance, wife has significant uncovered healthcare expenses because of her
health condition.
[¶21] Finally, husband argues that the court's decision fails a test of " reasonableness,
fairness or equity" because husband has suffered a major decline in his income, wife's income has
increased since the divorce because of the receipt of Social Security benefits, and husband is still
required to pay maintenance. In responding to husband's general attack on the family court order,
we note that the court's response was induced by the nature and timing of husband's motion.
Husband requested termination, not reduction, of his maintenance obligation and wanted
immediate relief. He filed his motion in advance of any actual decrease in his income, an action we
encourage to give the family court an opportunity to address the motion before a financial crisis
develops. The
Page 509
family court was immediately responsive to the motion, and, as a result, found that as of the time
of the hearing, husband had not yet experienced a substantial change in circumstances. Indeed,
as noted above, husband's income for the year 2009 was greater than what he had been earning
in previous years, although it was clear that it would decline in the future.
[¶22] This type of case presents difficult challenges to the family court because the moving
party wants immediate action, but the financial circumstances of the parties are still in flux and
have not reached a stable state, if such a state is ever possible. We encourage parties to raise
changes in circumstances as soon as it is clear that they are occurring, but they must understand
that the family court cannot speculate what the future will bring. See Taylor, 175 Vt. at 36, 819
A.2d at 688 (explaining that court has no jurisdiction to modify maintenance order when " the
required change has not occurred" ); DeKoeyer v. DeKoeyer, 146 Vt. 493, 495-96, 507 A.2d 962,
964 (1986) (court cannot consider obligor's speculation regarding his future economic
circumstances; it must consider " only [the obligor's] condition contemporaneous with the hearing
and his condition at the time of the divorce" ).
[¶23] At the same time, we emphasize that family court time is a precious resource that is
already under great pressure, and the court cannot respond effectively to every change of
circumstances that will inevitably occur. Thus, maintenance orders [189 Vt. 14] " necessarily
involve some predictions of the future circumstances of the parties," Taylor, 175 Vt. at 39, 819
A.2d at 690, to minimize the need to return to court for modification. For this reason, the statute
requires changes of circumstances to be " real, substantial, and unanticipated." 15 V.S.A. § 758.
[¶24] We conclude that the family court reached an appropriate balance in this case. It
denied husband's request to totally terminate his maintenance obligation. For the reasons stated
above, we affirm that decision. The court went on to respond to the future changes in husband's
financial circumstances that were sufficiently certain so the court did not have to speculate on their
effect. Appropriately, it reduced husband's maintenance obligation to reflect the upcoming change
in his financial circumstances. It reached a pragmatic result that minimized the need for the parties
to return to court in the future. See Golden, 181 Vt. 359, 2007 VT 15, ¶ 54, 924 A.2d 19 (rejecting
argument that stock options should not be counted as income because there would be a year's
delay before husband could exercise these options, and explaining " [t]his argument calls for a fine
tuning of maintenance awards that is unrealistic and would keep the parties in court forever." ).
[¶25] The basis of the original award is essentially unchanged. Husband is highly skilled
and able to participate in the workforce, should he so choose. Wife is disabled and, aside from the
maintenance award, lives exclusively on Social Security benefits and has no ability to improve her
financial circumstances through employment. Although husband's unemployment was
unanticipated, he remains in the better situation to improve his financial position. It is husband's
capacity to earn income, and only to a lesser degree the actual income he produced, that is the
foundation of the original maintenance award.
Affirmed.
---------
Notes: [1]Furthermore, courts that follow the minority rule have had to face the inequities that " [a]n
absolute bar against double counting can create ..., especially where the financial situations of the
divorced spouses become drastically different. These inequities have caused some courts to
refine their rule and carve out exceptions, persuaded others to modify their rule, and prompted at
least one jurisdiction to execute an apparent about-face on the issue." National Legal Research
Group, supra. For instance, in Cook v. Cook, the Supreme Court of Wisconsin concluded that in
some cases it is " inappropriate to enforce an absolute bar against counting a pension in the
property division and in the maintenance or support determination," as " [s]uch an inflexible rule
runs counter to the equitable nature of these determinations." 208 Wis.2d 166, 560 N.W.2d 246,
252 (Wis. 1997).
[2]Husband testified that his unemployment compensation benefits would terminate two weeks
after the hearing but that he could apply for extended benefits, and there was a " good chance" he
would receive them.
---------
From H. 869
Sec. 8a. SPOUSAL SUPPORT AND MAINTENANCE TASK FORCE
On or before January 15, 2017, the Family Division Oversight Committee of the Supreme Court
shall report to the Senate and House Committees on Judiciary on its study of spousal support and
maintenance guidelines in Vermont. The report shall include any legislative recommendations for
changes to Vermont’s law concerning spousal support and maintenance.
AS PASSED BY SENATE S.52
2016 Page 1 of 3
VT LEG #315615 v.1
S.52
An act relating to creating a Spousal Support and Maintenance Task Force
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. SPOUSAL SUPPORT AND MAINTENANCE TASK FORCE
(a) Creation. There is created a Spousal Support and Maintenance Task
Force for the purpose of reviewing and making legislative recommendations to
Vermont’s law concerning spousal support and maintenance.
(b) Membership. The Task Force shall be composed of the following seven
members:
(1) a current member of the House of Representatives who shall be
appointed by the Speaker of the House;
(2) a current member of the Senate who shall be appointed by the
Committee on Committees;
(3) a Superior Court judge who has significant experience in the Family
Division of Superior Court appointed by the Chief Justice;
(4) the Chief Superior Court Judge;
(5) two experienced family law attorneys appointed by the Family Law
Section of the Vermont Bar Association; and
(6) a representative of Vermont Alimony Reform who is a resident of
Vermont.
AS PASSED BY SENATE S.52
2016 Page 2 of 3
VT LEG #315615 v.1
(c) Powers and duties. The Task Force shall make legislative
recommendations to Vermont’s spousal support and maintenance laws aimed
to improve clarity, fairness, and predictability in recognition of changes to the
family structure in recent decades. The Task Force may hold public hearings
and shall endeavor to hear a wide variety of perspectives from stakeholders and
interested parties.
(d) Assistance. The Task Force shall have the administrative, technical,
and legal assistance of the Office of Legislative Council.
(e) Recommendation. On or before January 15, 2017, the Task Force shall
submit its recommendations for any legislative action to the Senate and House
Committees on Judiciary.
(f) Meetings.
(1) The Superior Court judge appointed in accordance with subdivision
(b)(3) of this section shall serve as chair.
(2) A majority of the membership shall constitute a quorum.
(3) The Task Force shall cease to exist on March 1, 2017.
(g) Reimbursement.
(1) For attendance at meetings during adjournment of the General
Assembly, legislative members of the Task Force shall be entitled to per diem
compensation and reimbursement of expenses pursuant to 2 V.S.A. § 406 for
no more than four regular meetings and two public hearings.
AS PASSED BY SENATE S.52
2016 Page 3 of 3
VT LEG #315615 v.1
(2) Other members of the Task Force who are not employees of the State
of Vermont and who are not otherwise compensated or reimbursed for their
attendance shall be entitled to per diem compensation and reimbursement of
expenses pursuant to 32 V.S.A. § 1010 for no more than four regular meetings
and two public hearings.
Sec. 2. EFFECTIVE DATE
This act shall take effect on passage.
Presenting the Case For
Alimony Reform in Vermont
March 9, 2016
Testimony Before the Vermont State Senate Judiciary Committee
Vermont Alimony Reform
Montpelier, Vermont
Table of Contents
1. Testimony Before the Vermont Senate Judiciary
Committee-by Rick Fleming, President Vermont Alimony
Reform
2. Article by Mike Faher of Vermont Digger
3. Vermont Alimony Payor Stories
4. Vermont Second Spouses & Partners Stories
5. Vermont’s Current Alimony Laws
6. Vermont Alimony Reform’s Legislative Goals
7. Contact Information
1. Testimony Before the Vermont Senate Judiciary
Committee-by Rick Fleming, President Vermont Alimony
Reform, March 9, 2016
Good morning, I would like to thank Chairperson Sears and the rest of the Senate
Judiciary Committee for inviting me to speak to you this morning. I would
especially like to thank Senator Jeanette White. It was a little over a year ago that
I reached out to her and shared my personal plight concerning my divorce and
court mandated lifetime alimony payments to my ex-spouse. It was through
Senator White’s guidance and encouragement that I felt the need to form the
group Vermont Alimony Reform. My name is Rick Fleming, I am a native of
Brattleboro, Vermont, and I am President of Vermont Alimony Reform.
Our grassroots organization is made up of men and women who have been
ordered through the Vermont Family Court system to pay alimony to an ex-
spouse. Our group came together in November of 2015 with the goal of changing
Vermont Law as it relates to divorce and alimony. Our membership is diversely
made up of men paying women, women paying men, and women paying women
so far. Our common bond is to work together to change Vermont’s outdated
alimony laws. Many states throughout the United States have or are in the
process of updating and modernizing their alimony laws.
Vermont Laws are some of the most draconian and outdated in the United States.
Vermont allows alimony to be paid for life (until death of one party). It is called
Permanent Alimony. Vermont laws do not allow the payors the ability to ever
retire and have their payments ended or lowered without costly returns to Court,
even when the retirement is forced. Even then, often there is no change. Vermont
laws dictate that payors must give up significant portions of their pensions or
social security, even to an ex-spouse who has his or her own pensions and social
security. Vermont Law still allows ex-spouses to remarry and receive full alimony
payments from their previous spouse. Most importantly, Vermont Laws have no
defined guidance for alimony. Judges have complete arbitrary and unbridled
discretion in ordering an amount and duration to pay. Vermont’s current alimony
laws state that a payor can apply for modification of their payment only when
there are significant and unforeseen changes in their financial circumstances;
however, there is no actual definition in the law of what this means, creating even
more judicial discretion and confusion.
In my own case, for example, I went to Court originally for the sole purpose of
determining alimony. Prior to my case, both I and my ex-spouse agreed to split all
of our combined marital assets 50/50. We also agreed that when my additional
business assets were sold, that any money I received would also be split 50/50.
Believe it or not, we went to court for 4 days solely for the purpose of
determining alimony. (Our children were over 18 at the time of divorce, so there
was no child support to be determined). I included both my personal CPA and my
banker in the trial as witnesses. Prior to 2008, I owned and operated a very
successful family business in Vermont. However; with the economic downturn of
that time, including extreme oil price fluctuation which was out of my control, my
business was significantly impacted. My salary, as well as all of my management
team’s salaries were significantly and permanently reduced in order to fight for
economic survival. My Father, who was my Business Partner, had retired, and up
until this point had been receiving an annual pension. This ended permanently as
well, as mandated by the bank. At the time of my first trial, the Judge who
presided over my case speculated that my company’s economic downturn was
temporary, and that my salary would return to its previous level, which she based
my alimony payment upon. Reality proved that that never happened, yet I was
ordered to pay $2,200 per month, with an annual increase for cost of living, to my
ex-spouse permanently. Over the next 2 years, as required by the bank, I ended
up selling most of my business assets, with all proceeds going directly to the bank
to decrease our outstanding debt with them. All proceeds from all sales went
directly to the bank. I have not received one penny from those sales. In 2013,
after consulting with my attorney, I attempted a modification due to the high
percentage of my salary going to pay alimony, I made the decision to go back to
court and seek a modification. We both felt that we had a strong argument, since
the initial order was based upon speculation upon my salary, since it never
returned to where the Judge thought it would be. This time, instead of using the
speculative salary amount, the Court made the decision to base its decision for
denying my modification appeal on the idea that my salary did not significantly
change enough since the first time I was in Court. Without specific percentages or
guidelines, this was very easy for the Judge to do. There is a major disconnect
here. Initially, I was held accountable to a speculative salary amount, the next
time I went back to Court; it was something different to continue to justify the
initial order. This does not happen with Child Support, only Alimony. The Family
Court in Windham County rendered a decision that there should be no change in
my alimony amount, and again I was stuck with alimony for life, in an amount that
is completely unreasonable for me to pay. I currently pay over 50% of my monthly
take-home pay to my employed, remarried ex-wife. In addition, unlike her I have
almost no assets, and no pension. She has both.
At the time Court’s second decision, I made the decision to appeal the lower
court’s decision all the way to the VT State Supreme Court, where again myself
and a new attorney felt we had a very strong case. Both I and my ex-wife were re-
married at this time, but her new spouse who had previously worked, now ceased
working, allowing her (and him) to remain financially dependent on me for life. To
my shock, and that of both of my attorneys, the Supreme Court upheld the lower
court’s decision.
I was completely devastated by the decision, emotionally, and financially. It was
at that time that I became aware of the alimony reform movement in the United
States. I met Steven Hitner, President of Massachusetts Alimony Reform at a
National Alimony Reform Conference in Washington D.C. It was there that I
discovered that many states have, or are in the process of, reforming Alimony
Laws to keep trend with modern times.
In February 2015, I was forced to file for personal bankruptcy due to my business
failure and the cost of the trials and alimony payments. My current wife has been
forced to liquidate some of her personal assets as well and take out several loans
in order to help me meet my financial obligations. Financially I have been ruined.
If not for the support of my wife, I don’t know how I would be able to meet my
living expenses.
I do not blame the Judges and I do not blame the attorneys, I believe that we have
a bad law. I am here today to ask you to consider a Vermont Alimony Reform Task
Force to investigate and to build consensus from all affected parties from a
divorce in an attempt to fairly modernize our current alimony laws. The task force
should be made up of Legislators, Attorneys, Judges, Payors, Receivers and
Members of Vermont Alimony Reform.
The task force model was very successful in our neighboring state of
Massachusetts and in 2011 unanimously passed in both Massachusetts’s House
and Senate their Alimony Reform Bill, which was signed by Governor Deval
Patrick.
Vermont Alimony Reform’s Legislative Goals are:
1. Encourage self-sufficiency for the lower earning spouse in a reasonable amount
of time
2. Guidelines for the term of alimony payments based on the length of the
marriage
3. Establish guidelines and structure to provide consistency and predictability for
litigated cases
4. Encourage mediation vs. litigation
5. Provide guidelines to allow both payors and receivers to prepare for
retirement
6. A second spouse’s income should never be a factor when a payor remarries
7. All financial obligations terminate automatically upon the recipient’s
remarriage
8. An alimony obligation terminates when the payor reaches the National FULL
Retirement Age (currently 67) the ability to continue working should never be a
factor. The current laws so not allow a payor to ever retire
9. Alimony amount based on NEED with a maximum of 30-35% of the difference
of the incomes of both parties, for a fixed amount of time
10. Establish specific guidelines to give Family Court Judges direction and
guidance, resulting in greater consistency, predictability, and fairness throughout
the entire state of Vermont
We have included a packet of information for each member of the Judiciary
Committee. This packet contains our Legislative Goals, and Alimony Payor and
Second Spouse/Partner Stories for your review, as well as an article written by
Mike Faher of Vermont Digger and the Brattleboro Commons. This article and
press releases have been in almost every publication in the State, and we have
seen more payors with their stories coming from all corners of the State, looking
for our help and wanting to champion our cause.
Many people in Vermont do not know the impact of our existing divorce and
alimony laws, unless they are personally affected or know someone who is. Gone
are the days when a spouse marries and stays at home throughout his or her
marriage in most cases. In today’s society, both spouses are working yet our
existing laws pre-date modern times and do not take this into consideration. I
hope that you will believe as we do, that our existing laws need to be changed as
we bring them into the modern century. I encourage you to reach out to me as I
am willing to lead the charge and help Vermonters solve this important issue. I
look forward to the formation of the task force to create meaningful Legislation
for all. Vermont Alimony Reform is looking for consistency, predictability, and
fairness for all that are impacted by divorce in Vermont.
Thank you for your time and consideration.
Rick Fleming, President
Vermont Alimony Reform
2. Article by Mike Faher of Vermont Digger
VERMONT GROUP STARTS PUSH FOR
ALIMONY CHANGES FEB. 10, 2016, 6:30 PM BY MIKE FAHER 9 COMMENTS
BRATTLEBORO — In 2011, after years of work, the Massachusetts Legislature
approved a major overhaul of the state’s alimony law. There was not a single dissenting vote, “and it’s very rare that happens,” said Steve Hitner, the man who led the effort.
Now, a group led by Brattleboro businessman Rick Fleming is attempting to use that model to revamp the Vermont law that regulates — or, the group contends, fails to regulate — the ways in which men and women are ordered to compensate their ex-spouses.
Vermont Alimony Reform is made up of those who feel they’ve been wronged by the system. But Fleming says he wants a robust debate, and he’s lobbying for formation of a special committee or task force that includes judges, attorneys and others to examine the issue.
“We really feel that it’s important that the Legislature take a hard look at this and involve all parties,” Fleming said.
It’s bound to be a sensitive topic, since alimony disputes involve highly personal details — from bank accounts to child-rearing arrangements — and sometimes years of acrimonious negotiations between former partners.
Rick Fleming is president of Vermont Alimony Reform. Photo by Mike Faher/VTDigger
Fleming is candid about his own case: He has taken his court-ordered alimony arrangement all the way to the Vermont Supreme Court, arguing that his $2,200 monthly payments are unfair and should be lowered due to changes in his personal circumstances. The court in 2013 rejected Fleming’s arguments and upheld the lower court’s alimony judgment.
But there is a line in the court’s decision that might sum up Fleming’s issue with the system: “As we have repeatedly stated,” the court wrote, “there are no fixed standards for determining when changed circumstances exist.”
Fleming said his group is not lobbying to abolish alimony; instead, he wants “consistency, predictability and fairness” built into the process.
“There are no existing guidelines, for the most part, for alimony,” Fleming said. “If you go to court in Windham County with the same set of circumstances that someone in Burlington (has), you could have a completely different outcome. And we feel that you should be able to go into court and have an understanding of exactly what might happen.”
“If there were rules and guidelines, we feel that it would improve the Family Court process,” he added.
There’s also a sense among those in the reform movement that Vermont alimony law — which provides for lifetime payments like Fleming’s — is badly outdated.
“There have been some modifications to the law over the years,” Fleming said. “But a lot of this dates back to when women stayed home all the time, and that’s just not the case
today. In many, many relationships, both the husband and the wife work. Yet, the alimony laws were written in a time when it was like ‘Leave it to Beaver.’”
Vermont Alimony Reform has a number of goals, including:
• Replacing permanent alimony with shorter terms based on the length of the marriage or on special circumstances.
“We support transitional alimony, which is alimony for a defined period of time to allow someone to get on their feet,” Fleming said. “We also support rehabilitation alimony, where if someone has been out of the workforce for a period of time, alimony would be appropriate to retrain them — perhaps (allow) them to go back to college to develop a new set of skills.”
“But we don’t feel, except for in extreme circumstances, that permanent alimony would be appropriate just based upon the length of a marriage,” he added. “And we certainly think that, if an ex-spouse cohabitates or remarries, that alimony should end.”
• Providing guidelines to allow payers and receivers of alimony to prepare for retirement. “The current laws,” the reform group argues, “do not allow a payer to ever retire” because there is no guarantee that the court will grant an alimony reduction.
• Establishing specific guidelines for Family Court judges in alimony cases. That should include, in Fleming’s view, standards for determining what constitutes a “substantial change” in a payer’s circumstances or income.
“I don’t blame the judges, and I don’t blame the attorneys,” Fleming said. “It’s just a bad law … and the law needs to be changed.”
Vermont Alimony Reform has posted a list of issues and goals at its website. The site also includes stories illustrating the arguments for why the system should change.
One person featured on the website is Maureen Lynch, who went through a divorce in Caledonia County several years ago and has since moved out of state. Lynch is a registered nurse, but she says she’s living paycheck to paycheck due to her own family obligations and ongoing alimony payments to her former spouse, who she said has retired.
Along with imposing financial pressures, Lynch believes permanent alimony “prevents emotional healing” — essentially ensuring that a “contentious divorce goes on forever.”
“That’s part of the need for people to tell their stories,” Lynch said. “I think legislators aren’t aware of the abuses and the ways in which people are suffering.”
At this point, those stories have not filtered very far into the Statehouse. Vermont Alimony Reform held its first meeting in November and only recently has begun reaching out to legislators.
Sen. Jeanette White, D-Windham, said she has heard from Fleming and understands his concerns. “I think this is a real issue, and part of it is that our laws are antiquated,” she said.
White serves on the Senate Judiciary Committee and said any family law changes would start there, but there’s been no legislation introduced. Nevertheless, she speculated that language calling for formation of a special study committee or an alimony task force could be inserted into a bill sometime during this session.
“I am trying to figure out if there’s a way of doing this, even at this late date,” White said.
The fledgling Vermont effort has gotten some assistance from Hitner, who has been working to spread the Massachusetts reform model far and wide. “Right now, I coach people in a half-dozen states,” said Hitner, who lives in Marlborough, Massachusetts.
Changes in the 2011 Massachusetts alimony law included a new formula that ties alimony terms to the length of a marriage. There also are term limits for different classifications of alimony such as rehabilitative, reimbursement and transitional.
The new Massachusetts law mandated that alimony be suspended, reduced or terminated when a recipient maintains a common household with another person for at least three months; also, alimony ends when a recipient remarries.
A host of other changes is detailed at a Massachusetts group’s website. While there have been some complications leading to the need for further legislative tweaks, Hitner said he believes the hard work of an alimony reform task force ensured the Massachusetts statute was updated to reflect the present-day needs of divorced couples.
“Laws have to change with the times,” Hitner said.
Filed Under: Courts & CorrectionsTagged With: alimony, divorce, Vermont Family Court, Windham County
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9 Comments on "Vermont group starts push for alimony changes"
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Brian D. Cohen
24 days 10 hours ago
Excellent article that begins to address some of the anachronisms and glaring inequity of Vermont
law, which besides inconsistent and unfair alimony include child custody policies that allow one
parent in a contested child-custody case to reject joint custody (one of only six states that discourage
shared custody); a failure to enforce legally binding prenuptial agreements; and lax oversight of
Family Court judges and their often wildly unprecedented and errant decisions. It’s way past time to
establish specific guidelines for Family Court judges to achieve consistency, predictability, and
fairness for all parties involved in the divorce process.
15
| Reply
Rod West
24 days 10 hours ago
YES. Please let’s spend time to modernize our laws.
10
| Reply
Judith McLaughlin
24 days 9 hours ago
I think Vermont Alimony Reform will have no problem getting Vermonters to not only join this
discussion….but to actively support their mission.
9
| Reply
Sue Gallagher
24 days 9 hours ago
I believe serious inconsistencies exist throughout the justice system.
4
| Reply
Tony Ketting
24 days 8 hours ago
I think the true feminists would lead the charge to change our antiquated laws that are in all reality
overwhelmingly punitive (and often crushing) toward men. Of course that is because women cannot
possibly be capable or in a position to support themselves as a man might (sarcasm here). There is
little that is fair in the current system.
6
| Reply Hide Replies ∧
Judith McLaughlin
24 days 7 hours ago
Tony, I went to Vermont Alimony Reform website to learn more…..and found just as many stories
about women paying alimony, as men. Entitlement knows no gender!
3
| Reply
Craig Miller
24 days 57 minutes ago
“If you go to court in Windham County with the same set of circumstances that someone in
Burlington (has), you could have a completely different outcome. And we feel that you should be able
to go into court and have an understanding of exactly what might happen.” Therein lies the elephant
in the room called Family Court, except the elephant is wearing a robe. Sadly, many who sit in
judgement at these civil proceedings lack the proper skill sets and training to make sound
judgement’s. This is seen not only in Alimony, but determination of child custody and in
abuse… Read more » 4
| Reply
Karen Kevra
24 days 26 minutes ago
This is long overdue. The unfairness in the system is epic and regressive. Vermont should do better.
6
| Reply
Chuck Reinertsen
23 days 6 hours ago
With more financially successful women paying permanent alimony, it should be pointed out that
this is not a husband/wife issue. This is a worker vs. non-worker issue. There is no incentive for the
alimony recipient, either man or woman, to get a job, pursue an education, explore a career or
remarry. The incentive is there to remain dependent on the worker. There must be exceptions for
disability, as defined by Social Security, but 99% of permanent alimony recipients should be allowed
to move on with their lives, accepting personal responsibility for themselves. As adults, we are not
forced to support our parents, siblings, or even our own children past the age of 18. Why then should
a worker support an individual who has the ability to work, just not the desire or incentive? Bring
Virginia’s laws up to today’s world. In 40% of households, the woman out earns the man. Current
laws are discouraging marriage, opting to simply live together. And who blames them? The
consequences of a failed marriage are far too great a risk. Update the alimony laws and people may
once again choose to marry.
3. Vermont Alimony Payor Stories
Vermont Alimony Payor Stories
I lived in Vermont my whole life up until my divorce. I operated a very successful business and
followed all of the rules and laws that were expected of me. I practiced fairness in the way I lived
my life both in my business and at home. Little did I know that this would not matter once I
entered the family court system when I filed for divorce.
After 20+ years in an unsuccessful marriage, I made the decision to end my marriage. I reached
out to a respected attorney to begin the process. I should have known that I was in for trouble
when my attorney told me that I should try and settle the alimony portion of my divorce
settlement before I went to court. Her comment to me was that the family court system in
Vermont was like the "Wild West". I met with my ex-spouse a couple of times to try and work
out an amicable settlement but she was unrealistic in her demands of an alimony amount. The
result was that I had to go to family court to try and settle our differences.
My first divorce trial lasted four days. The only issue to be resolved was the amount of the
alimony award to my ex-spouse. Between the time we were legally separated and the time of the
trial, my business which had once been successful, no longer was. All of my managers, including
myself had taken significant pay cuts in our effort to save the business. My father, who had
retired from my company, no longer received his retirement pension. We were under the
microscope from our bank and all the actions of my company were being monitored. We were in
a severe cash crunch and fighting for our survival. All of this was explained to the Court by me,
my CPA and my banker. This was completely ignored by the Court. In fact the Court in its
decision speculated that my salary would return to its previous level and that my company would
recover the significant loss that it had incurred in a mere 18 months. Its reasoning speculated
that once my salary returned to its previous level, I had the ability to pay the alimony support
level that was ordered.
The Court's final decision was that I was ordered to pay my ex-spouse $2,200 per month
permanently, with an automatic annual cost of living increase until either I had a significant
change in my salary or my death, whichever occurred first. It is important to understand that
prior to the trial both I and my ex-spouse had agreed to a 50%-50% equitable distribution of our
acquired assets of the marriage. We sold the family home, split all joint bank accounts and split
my 401-k and her pension. The only outstanding issue was the valuation of my remaining
business assets which we agreed to split 50%-50% upon their sale.
For the next three years I paid what the court had ordered. I never missed a payment. My salary
never returned to its previous level in spite of the Court's speculation that it would within 18
months. The result was that I was forced to spend down the assets that I had split with my ex-
spouse to help pay for my court ordered alimony. I also had to utilize my personal credit cards to
help meet my weekly expenses because my income did not support my expenses.
After 3 years I made the decision to return to court to seek a modification to my monthly
alimony support payment. Both I and my attorney thought we had a strong argument to return
to court. Although I had remarried and adopted a daughter, my ex-spouse had also remarried
and my salary had not returned to its previous level that the Court had speculated and used to
justify its initial order. However justice in the Vermont family court system is hard to obtain,
especially if the Court has to admit that it was wrong in its initial decision, as was the case by my
involuntary, permanently reduced salary. This time the Court chose to overlook that it had
speculated about my salary level in its initial decision and instead based its judgment on the fact
that there was not enough of a significant change in my salary level to make an adjustment. So
initially its decision was based that my salary would return to its previous level and when it didn't
it used another part of the law to prevent a justified adjustment. How do you seek justice when
the Court has the discretion to do whatever it choses and is not held accountable for its actions?
In its decision the trial Family Court reprimanded me for adopting my daughter. According to the
Court, I should have saved the money that it cost for my daughter's adoption to ensure that I
had the funds to keep my ex-spouse in her accustomed lifestyle. The fact that my ex-spouse's
new husband doesn't have full time work wasn't held against her when we returned to court. It
should also be noted that my ex-spouse is a full time teacher with a master's degree from UVM.
She clearly could support herself with her salary, her new husband's salary if he chose to work
and her teacher's pension going forward.
At the time I received my second decision, my ex-spouse's attorney told my attorney that even
he was completely shocked that there wasn't some modification to my alimony amount. After
consideration I made the decision to appeal the Court's second decision to the Vermont State
Supreme Court. Again, thinking that the Vermont court system was based on justice and
fairness, the Supreme Court would reverse the trial Court's decision and that I would obtain
justice. That was not the case! The Vermont State Supreme Court backed up the decision of one
of their own and the trial Court's decision was upheld.
The cost of both trials and my appeal, monthly alimony payments, along with my business failure
has bankrupted me. The cost of the trials and alimony has exceeded $250,000 over the past 6
years. I was forced to file for bankruptcy protection this past January yet I am still required by
the court to pay my ex-spouse each month or I go to jail because I would be in contempt of
court if I do not pay my monthly obligation. Alimony is not affected by bankruptcy protection in
Vermont.
The Vermont Family Court's decision has greatly impacted my life. I am thankful for the love and
support of my wife and my daughter. Without my wife's financial support I would be unable to
afford the basic human needs of food and shelter with what I have left over each month if I were
living on my own. This has put enormous financial strain on her as well. Knowing what I know
today, I don't think that I would have put my present wife through everything she had been
through as I have struggled to seek justice in the Vermont Family Court System. There is a bias
toward business owners in the divorce process that is detrimental toward second families as they
try and move on from a divorce.
Vermont's alimony laws are out of date and impractical in today's society. Vermont's laws have
not been modified to keep pace with the changing times of the 21st century. Judicial discretion
needs to be addressed by the Vermont Legislature so that every Vermonter has the right to
expect a fair, equitable and predictable settlement with an ex-spouse that is based on a set of
predetermined guidelines that ensure justice for all. Only then can everyone from a divorce move
on with their life and live their life with the ones they choose in peace. Who will advocate for me
in this system? We need alimony reform desperately in Vermont, and action needs to happen
now!
Rick Fleming, Windham County, Vermont
I am a female alimony payor whose ex-husband left her for another relationship, and I have to
pay him! Vermont is a no-fault state, so this did not matter in court. There are many
misconceptions about alimony, including that it is men paying women after leaving them for
someone else. I am in complete contradiction to that as he left me for a much younger woman,
and I am left paying for their lifestyle forever! I cannot believe this has happened. I have worked
hard my whole life and deserve better than this; instead I am left paying $1000 a month of my
hard-earned money to them forever! In the Court's calculations, that amount was based on an
additional 15-20 weeks of overtime, which I am not eligible to earn now. The Court made me
give him $16,500 out of my IRA and $28,000 from our house. In addition, he gets a portion of
my pension for life. He is on disability for a supposed bad back, not having worked steadily, but
having plenty of energy and stamina to hunt fish and play on my dime! I gain nothing from his
SSI monies, why should he get money from my EARNED benefits? I worked hard, paid for all of
the health and life insurance, a life insurance policy which he and his new girlfriend will benefit
from if I die, which I have to maintain for him. I have no life insurance to cover me, which he
was not required to do, yet I have to keep a policy for him. He falsely alleged that I abused him,
costing me another $13,000 to return to Court, to which nothing was done nor proven. He even
went so far as to subpoena his family and our neighbors to extort money out of me. I supported
him most of life as I sickenly saw him sitting around in his underwear until noon every day. He
could and should be working, but is deciding to live off of taxpayer money, and when that is not
enough, he has me supporting him now in addition forever! He is cohabitating with his girlfriend
who is also on SSI, so they are getting a really great deal. They are working the system and me
and I am completely outraged! Every day of my life is a living nightmare and the abuse needs to
stop! Child support can be modified based on income changes and has time limits. Why does
alimony persist forever? We need alimony reform now!
L., Rutland County, VT
I was married in Westminster, Vermont in August of 2001. Prior to our wedding, an attorney
drafted a prenuptial agreement that my fiancée and I signed, living by its terms until our
separation in May 2012. At that time my wife sued to have the prenuptial agreement overturned.
Though in its decision, the Windham County Family Court found the prenuptial agreement to be
a legally valid contract arrived at without coercion, and though the Court did not find that
applying the terms of the agreement would leave either party under financial duress, it set the
agreement aside on the grounds of public policy, citing the mere fact that we had a child
together subsequent to our marriage. The prenuptial agreement in no way adversely affected our
son, his financial welfare, or his ability to inherit from his parents. Vermont law is clear that the
court does not have the power to give property to a child of the marriage, and may only divide
property between the parents. The State of Vermont enforces measures to protect the welfare of
a child through child support and maintenance supplement, which were applied on behalf of my
son at the time of separation and to which I have consistently abided. Ignoring these guidelines,
the Court set aside a valid legal contract, forcing me to settle without the guarantees and
protections that agreement clearly outlined.
Experts on family law within and outside of Vermont, including a professor at Vermont Law
School, found this decision without precedent or legal justification and in error. My only recourse
to this judicial overreach would have been to appeal to the Supreme Court of Vermont at a cost
of an additional $25,000 and at least two more years of litigation. Having already borrowed over
$35,000 to defend a valid prenuptial agreement, I was unable to continue to litigate and was
compelled to settle at a great disadvantage, losing the home we had jointly owned outright.
I could not have imagined that I would lose my home as a result of a single unelected
government official disregarding governing legal statute to undo a valid and legally binding
agreement, with no oversight or the realistic possibility of appeal. It is of great concern that
Family Courts in Vermont at times operate willfully outside of case law precedent, disregarding
legal agreements and demonstrating a pattern of prejudicial decisions.
Thanks,
Brian D. Cohen, Windham County, Vermont
FACTS:
1. I am a woman who was granted sole physical and legal custody of two minor children at the
time of my divorce. (2007)
2. The marriage lasted 15 years. We were both employed the entire time with full time jobs.
3. During the 15 years, I was the sole caretaker of the two children (and a step child from my
ex- husband's first marriage). This was a court fact.
4. I had a full time job (as a teacher) for the entire length of the marriage, and advanced my
degree (obtained a master's in educational administration) and was promoted to a school
administrator TWO years before the separation/divorce, resulting in the fact that my increased
income was for two years only while we were married.
5. The disparity in our incomes was such that I was ordered to pay alimony for TEN years at a
rate of $1,250/ month. I did not appeal this, as my lawyer at the time told me it would not be
worth it.
6. I received child support from the children's father for the past seven years for my son and the
support for my daughter ended in 2010. I tried to modify the spousal support order then but was
told that college expenses, as "not unexpected, unanticipated change in circumstances" and was
not given a hearing.
7. Both children are now over 18, so child support has ended.
8. Spousal support is still in effect until 2017 (meaning that my ex-husband would now be
receiving MORE $ / month because child support has been eliminated).
9. I have stopped paying the alimony because I am now the sole provider of college expenses for
both children and the loan payments are more than the alimony. The father of the children does
NOT think it is his responsibility to contribute ANY college expenses.
10. I realize I am now in contempt of a court order, but I simply cannot afford to continue to pay
for the two children and their father to live. (He is still employed full time)
11. My ex-husband filed a Contempt of court motion and I was given a court date in 9/2014.
Both of the children knew about this as they are now adults and their father's lack of monetary
help as put them in a very different financial position than they would have been in had he
contributed. My daughter insisted on accompanying me to court, and I discouraged this.
12. When I arrived in court, I was asked why I had stopped paying after seven years of paying
and never missing one payment. I explained that now I was paying a student loan in the amount
of: $650 and I could not pay both their father and the loan, so I chose the children!
13. I was told by the Court, "Mrs. Couillard, the college expenses are a CHOICE and the alimony
is court ordered, so therefore not a choice, so we will need to schedule this for another hearing."
14. I decided I did not want to go back to court, so I tried to negotiate with my ex to pay off this
debt in one lump sum. I figured I would be ordered to pay the remaining three years which
would have equaled $45,000 (three years at $15,000/year).
15. I borrowed $25,000 from my brother and we both signed a stipulation (written by me, as I
could no longer afford a lawyer) that we would agree this would be the final payment.
16. So……….in total I have paid: $150,000 in alimony! I always allowed both of my children to
have any camp/team/lessons/tutoring that was recommended (or they requested) because I
never wanted them to go without because their parents were not married. I also have $77,000 in
student loan debt and my son is still attending college.
Lauren K., Burlington, VT
We divorced after 25 years. Our kids were both over 18 years old. My ex worked most of the 25
years and even obtained her master's degree during that time. I only have a GED. The last ten
years I made decent money. Unfortunately for me, lucky for her; the unfair alimony laws are
excellent for her.
We returned to court for an alimony modification because my pay decreased $30,000! I was told
by the Court that the decrease was not significant! Not only did I get a pay decrease, I had my
lawyer fees of $12,000, her lawyer fees of $8,000 and didn't get a modification! My ex-wife
actually lied in Court. She was clearly cohabiting at the time and denied it.
Outcome of the divorce:
My ex received half of my retirement, she gets 60% of the proceeds of the homestead (I am
ordered to pay the mortgage, taxes and ALL expenses) and after I pay her alimony for 21 years
she will get a total of $640,000!!
My ex has purchased a condo (her boyfriend is still living with her and he too is employed), new
car, motorcycle (she does not have a motorcycle license) goes on vacation every year, has her
nails and hair done on a regular basis, bought a pure bred puppy but claims she is "BROKE"!
Steve, Windham County, VT
I actually believe that most anyone who has to pay alimony in this current era has a horror story
to tell. Alimony is an archaic law that has no place in our current society.
The alimony law was manipulated by my ex-spouse in my divorce. She has a Master's Degree in
Education with a lucrative career and decided to stop working at 62, and divorce me. She started
collecting social security and a very generous pension, and demanded a huge sum of alimony.
She was, to my shock, actually granted alimony. I was told that she had to maintain her current
lifestyle. When I asked about my lifestyle there was no answer. She got the house and land and I
had to move into an apartment. So I had to work, live in an apartment and pay her money. She
got to NOT work, live in my house, and get money for free. I didn't get it. She was perfectly
capable of working, she wasn't disabled. She just didn't want to work. She said it herself.
So my daughter, who I support by the way, graduates high school in Vermont and moves away
for college so I can finally move away from Vermont to be near my family. It took me longer to
find a job than I thought it would. I'm an RN but I'm 60 years old. I sent a motion to the Court
just asking that alimony payments be suspended for the 3 months I was out of work and had no
income (and no savings). It made sense to me, she has income, and I have no income, so I
don't pay her? It's not like I was asking her to pay me, which actually would make a lot of sense
if you think about it. Well of course she wants a hearing because of course she doesn't agree. So
the Court kindly decides to lower the payments for the months I was out of work, but actually
admonishes me for being careless with her support money by being out of work. It's surreal.
So it's been 7 years since the divorce, the relationship wasn't even 7 years long. I'm still in an
apartment, overdrawn a lot of the time with no savings. I'm supporting my daughter alone
through college. That's my lifestyle. And I am still paying her alimony. Alimony is about making
one person the victim and it has to stop.
Alimony also prevents emotional healing. Every paycheck is an emotional rape when I see that
money I need and worked hard for has been wrongly garnished from my pay. The contentious
divorce goes on forever and it can never be put behind with the constant reminders. The
negativity this engenders can't help but spill over into the parent child relationships as well. I
can't see how the state benefits from participating in this outrageous unfairness.
One final point: the garnishment of my pay for alimony puts me at risk for losing my livelihood. I
am forced to live paycheck to paycheck. I have large student loan payments. I live in a state
where if I default on a student loan I will lose my RN license. It is imperative that I make all
student loan payments. I explained this to the Court and asked that my pay therefore not be
garnished. My request was denied. No one should fear the loss of their livelihood because their
money is taken from them and given to someone who won't even work. No one should fear
losing a license that is important to them.
Thank you for doing this important work.
Maureen, Vermont
Nine years after the VT Family Court System deemed it necessary to pay an ex-spouse
$1200.00/month I am now $108,000.00 poorer and she is that much richer; for what? Mind you,
VT is a no fault State regarding divorce.
Let's back up a little. My marriage of approx. 19 years had gone south to the point that on the
last occasion we were in our marital home my ex struck me in the face, drawing blood from both
sides of my nose where my eyeglasses had cut in, to which my response was to call the cops and
I filed a domestic violence complaint against her sending her to jail for the night. The following
Monday she was in court to face the charges only to come out with a restraining order on me?
Remember who hit who. The divorce proceedings followed soon after in 2002 I was age 40 and
she was 39 and we had three children ages 10,13, and 16. Two months earlier I had given up on
a self-employment venture working as a wood craftsman/furniture builder. She continued to
babysit for minimal income despite the mental and physical ability to do much more. The divorce
proceedings took nearly 2 years and with the help of three different lawyers at the cost of
approx. $12,000.00 the outcome all came down to the Court's discretion. The judgment was for
the marital home to be refinanced in her name only with my share of the $60,000.00 homes
equity of $5000.00 to be paid to me. There was no retirement fund to split. My wages were too
garnished for $1000.00/ month in permanent alimony, on top of $1,150.00 in total child
support/month for my three children. Mind you my new jobs income was about $4000.00/ month
gross. This forced me to have to work as many as three jobs at once to meet all my own
obligations plus these court ordered ones. Also the only reason she gave for not being more
gainfully employed was that she was too shy! The appeals court upheld these findings.
If that is not bad enough; within a year after the divorce she had remarried which prompted me
to file for a modification due to the remarriage and the resulting lack of need for continued
support. This was denied by the same Court stating that due to my soon to be new wife's income
and my ex's new spouses income basically cancelled each other's out so I thereby did not meet
the VT statute for a "substantial unanticipated change" necessary for a modification order to be
heard.
Here we are in the year 2015 and these kind of stories are happening more frequently than less
and we are finding that the permanent decree often means to the death of either the payor or
payee so the payor cannot even look forward to a normal retirement without this ridiculous
involuntary servitude obligation threatening even the golden years of life.
Here are some of the many issues of Alimony Reform that should come into review:
1. Excessive alimony judgments for both; amount and duration?
a. permanent vs. rehabilitative
1. Amounts are punitive in nature.
consider that even dependent children do not receive support beyond age 18, why should an
adult?
concurrent child support and Alimony in excess of ability to pay
1. VT law allows only $800.00/ month for the payors' existence which is less than what welfare
recipients
are allowed.
2. Both parties capable of gainful employment
3. Should end automatically with remarriage of payee
4. The use of the payors' new spouse's income in calculating a need for support is in effect
making the new
spouse pay the ex-spouses income.
5. Does not automatically end at retirement age along with the cessation of earned income
Keith, Vermont
I divorced my wife of 23 years when the emotional bullying had finally driven me to the point
where I contemplated taking my own life. Our divorce became final in the spring of 2011. As part
of the final order, I was saddled with the obligation to pay my ex $600 per month in spousal
support. I argued at the time this was not sustainable. I had been working with my father in his
business brokerage for 8 years at that point. Business took a decided turn for the worse in 2008,
as did the rest of the U.S. economy. I knew I was not going to be able to make a living from the
brokerage much longer. I stated such in court, but the court only ever viewed this as me simply
walking away from a lucrative enterprise, which is not the case. Following the final decree, I was
discouraged by those around me from contesting the final order with the reasoning that it was a
futile endeavor. The permissible period of appeal expired. I filed a motion to modify but this was
rejected by the Vermont Family Court. It stated, in effect, that the economy was no different in
2012 than it was the previous year when I had earned roughly $49,000; therefore there was no
reason I couldn't do that now. When I ran out of money to operate in the brokerage, I took the
first job I could find, which was with Vermont Country Store. This was a seasonal position with a
reasonable promise of being hired on permanently. I was not kept on and was laid off in January
of 2012. As I was unable to make my required spousal support payments, my ex filed a series of
motions (these have averaged about 3 per year) for which I had to appear before the Court
again to show why I should not be held in contempt. I successfully demonstrated that I had not
paid due to circumstances beyond my control. I am a 51 year old fat, bald man competing for
the few jobs that become available with hundreds of other applicants; the odds are most
definitely stacked against me, in my experience. As I was self-employed for several years then
employed seasonally, I was not eligible for unemployment compensation, so I have had no
income whatsoever. My wife and I have survived on what she's brought home and some support
from her parents. On one occasion in 2012, I missed a court date, which was an honest mistake
on my part. I was summoned back to court to answer to a contempt charge at which the Court
repeatedly threatened to have me incarcerated. The Court ended up imposing a penalty of
$2,000, due in 3 weeks, which was applied to my spousal support arrears. I felt quite guilty
about missing the date and was concerned about the possibility of being incarcerated. I begged
my father-in-law for the money, which he lent me, so I paid the penalty and the matter was
settled. With the exception of about 7 weeks last March & April, I have been unemployed for
most of the past two years, despite my best efforts to secure employment. During that time, I've
appeared before the same Court roughly 6 times. Each time, I was grilled extensively about
every aspect of my life and my job search and continues to maintain that I could still be earning
a lucrative living as a broker. Each of these appearances has lasted approximately 45 minutes.
Every time I have appeared before the Court, I am starting from scratch with regard to its
questions; I am not certain if notes are taken or the case reviewed before my appearances
because every time I am asked the same questions and I have to explain every aspect of my
situation over and over again. Then, each time, the Court makes snap ill-informed decisions
based on situations that it has no knowledge or understanding of, drawing on various industry
expertise that it does not possess and my situation gets progressively worse. At my last
appearance, September 6th, my ex made the argument that I've racked up approximately
$8,500 in arrears and when he ordered me to cough up $2,000 within 3 weeks, I came up with
it. I had filed motions to both modify my spousal support and to have at least a portion of the
arrears forgiven. I had also filed a motion regarding a tax penalty I was hit with for 2009, the
year my ex and I split. For that year, I had made an interim support agreement with my ex until
the final decree, which didn't occur until 2011. Thus, I deducted amounts I paid to her from my
adjusted income. The IRS declared that an illegitimate deduction and I was hit with a bill for
$2,500 in back taxes, interest and penalties. Since my ex enjoyed those funds, tax free, I filed a
motion to have that amount deducted from my arrears. I argued that it would be a painless way
for my ex to meet her part of that obligation. The Court denied that as well as my request to
have my support payments lowered and my request to have at least some of the arrears
forgiven. The Court maintained that all my motions were baseless. Additionally, my ex requested
that the Court order me to pay her at least 10% of the arrears within 7 days. The Court sided
with her and ordered me to pay her $840.00 within 14 days, by Friday, September 20. I told the
Court then and there that I had no way to come up with that money. I informed the Court that I
had employment lined up with Vermont Country Store once again, which I begin on September
23rd.
However, these two are absolutely certain they can force me to cough it up under pressure. So I
fully anticipate being summoned back once again to answer to a contempt charge.
The part of this situation that angers me the most is that no one will cut me any slack at all
anywhere along the line, no matter how bad my situation gets. However, if things turn around
for me and I start earning some money and even start improving my situation, my ex can and
most certainly will file a motion to have her support increased, beyond anything she was ever
"accustomed" to, and I can't help but believe that the Court will grant it. I find this whole process
barbaric in 2015. Our divorce was a no-fault divorce, yet I have been convicted and am being
punished as the bad guy.
I have discussed this situation at length with my wife and family and I am quite willing to make a
civil protest in my case, even if it means being incarcerated temporarily. I am quite willing to
stand up to this and any other Court.
Greg Henry, Rutland County, VT
4. Vermont Second Spouses & Partners Stories
Time To End Alimony Payments By Second Spouses
The Vermont 2nd Spouses & Partners Club is an opportunity for all 2nd spouses and partners to
gain support and encouragement and to change the current alimony statute of lifetime alimony
in the State of Vermont. We are hard-working women or men who support our spouse who has
been ordered by the Vermont family courts to pay life time alimony to their ex-spouse, a person
we never married.
The second spouses club is an opportunity to share your story with others and let the public
know how paying alimony to the former spouses affects your marriage.
I am married to a wonderful man who has been sentenced to lifetime alimony. This means that I
too have been sentenced to lifetime alimony. Instead of looking to a bright future, planning our
retirement and being able to assist our children and grandchildren when they need it, we are
working to provide a free meal ticket to a grown adult. The state has brought this person into
our marriage and our life is not our own.
It is time to let your voices be heard so that we can make a change for ourselves and future
generations. Please join us now!
The probability that we may fail in the struggle ought not to deter us from the support of a cause
we believe to be just. - Abraham Lincoln
You can make a difference. If you are tired of the intrusion of the family court system in your life
relative to lifetime alimony, we want to hear from you.
If you want to learn more, please contact Amy Fleming at 802-490-8534 or Click To Email Us
Second Spouses and Partners Alimony Stories I am writing this to share with other families the complete travesty that is going on behind
closed doors in the Vermont Family Courtrooms. I am a second wife to a lifetime alimony payor
from Vermont. Every person that I have told my story to is in compete shock and disbelief as to
what goes on in Vermont with respect to alimony. It is so horrific that I believe our Forefathers
would literally be rolling around in their graves if they knew what is happening in the Courts
there.
I write about my story, the story of my family, but I would be remiss without sharing that
countless others have contacted me with their own Alimony horror stories and have asked for my
help. Family Court leads to more suicides than all other forms of court combined. Why? These
lifetime alimony payors – men, and in increasingly more cases, women, believe there is no way
out of the lifetime sentence imposed on them in a civil case.
My husband is the most outstanding human being I have ever known. He is kind, fair to
everyone, and has worked hard his whole life. He is guilty of one thing: a failed marriage. At the
time of my husband's divorce, his children were grown adults. The financial penalty imposed on
him for his entire lifetime is not to care for children; it is to provide "maintenance" to his
remarried ex-wife in her new life.
In most states (and particularly "no-fault" states such as VT) distribution of assets occurs, and
folks are able to move and enjoy life. Vermont, which is one of the most progressive of states
socially (one of the first to legalize same-sex marriage) has some of the most archaic Family
Laws in the Nation, which are nothing short of Draconian in nature.
Alimony, when awarded, should have a specific purpose, such as rehabilitative (to help one re-
establish a career) or transitional (to assist for a period of time to help the recipient spouse to
transition to a life on their own). Alimony should not be arbitrary, punitive, or capricious, but
designed on an established and predictable set of guidelines. Why is alimony designed to allow a
recipient spouse to "live the lifestyle they were accustomed to during the marriage" forever and
literally force the paying ex-spouse into poverty? When two people were married and living
together and now are not, how is one person supposed to be able to maintain the other at the
previous level and still have anything to live on? That simply does not make logical sense. My
husband was forced to modify his lifestyle drastically because he has been forced to by the facts
and the balance sheet of reality. Why is this not expected of his ex-wife? Why is the law so one-
sided?
My husband's ex-wife remarried just over a year after we did, to a man who was working full-
time when they met, and shortly thereafter, stopped earning income. Under current law, if a
recipient spouse remarries and the combined income does not meet the ex-spouse's basic needs,
the responsibility resides with the ex-spouse. We are NOT talking about child support here, the
children are grown. This is JUST alimony! My husband's ex-wife took a voluntary reduction in
pay, and her new husband stopped working and earning a paycheck, allowing them to remain
dependent on my husband. Now my husband has to support two full-bodied, capable adults off
of his severely reduced earnings that are not even part of our family! Why is this the case? What
if my husband's ex-wife leaves her current spouse, and decides to marry another? Does he or
she get to stop working so we can support them too? Why does she need her salary, the financial
support of an ex-husband forever and to be married to meet her basic needs?
The most unbelievable statement of fact in my husband's modification of alimony support appeal,
in addition to the Court not recognizing my husband's change in financial circumstances, was the
comment made by the Court regarding the adoption of our daughter. My husband testified that
we used some of his savings (of which his ex-wife already was given half of) to adopt a child,
and that she had some medical issues which we had to pay for out of pocket. The Court replied
with the statement that although it is normal for a newly married couple to want children, he
(Mr. Fleming) should have kept the money in his savings to maintain his ex-wife's previously
accustomed to lifestyle rather than adopt a child. He should've, according to the Court,
recognized his financial support obligation to his (remarried) ex-wife, rather than have
proceeded with the adoption. The Court allowed his ex-wife to state that she absolutely needed
the money for things such as spa treatments and personal gifts, but we weren't allowed to adopt
a child? This is not only "double-dipping", but under whose authority is the Court able to
determine future life choices for either party? Alimony should be based on earned income and
basic life necessities, not savings which have been previously split amongst the parties equally,
nor life's extravagances.
The Court also admitted paperwork into the trial stating that the ex-wife's new husband did not
earn any income, without requiring proper documentation, and further, allowed my husband's
ex-wife to submit as one of her monthly expenses, payment for health insurance policy for her
new husband. We were not to adopt a child, an innocent being that needed a loving home, yet
my husband's ex-wife could support a grown and able man? Where is the justification for this?
How can we be assured that there was no bias when we were told we shouldn't have adopted our
daughter, yet my husband's ex-wife can almost fully support her new husband and have
allowable expenses by the court to care for him, a grown adult's needs?
My husband and I both work long full-time hours, have had to borrow out of both of our savings,
take loans, use credit cards, and even borrow from family to be able to support our family, and
we still have not seen justice. With this judgment, he can never retire, for he has to continue to
toil in order to support his ex-wife and her new husband until death. When will this financial
noose that is unhealthy and tethering to all parties be eliminated? Permanent lifetime alimony is
damaging to all parties and needs to stop NOW!
Amy Fleming, case in Windham County, VT
I have watched my husband's health bounce around for the last three years. I am sure a lot of it
is contributed to stress. He works six days a week, often times seven and he works anywhere
from 8 to 12 hours each day. His pay is strictly commission. It doesn't matter how much he
makes each month, he is still required to pay his ex-wife $2750 for alimony, $200 for her lawyer
fees and is solely responsible for their marital homestead and all expenses (which has been on
the market for three years).
Unfortunately, my husband has to make the money he is making in order to pay his court
ordered alimony, so he is unable to change careers to be able to only work a normal 40 hour
week.
My husband attempted a modification, due to a pay decrease. The attempt only cost him
additional funds due to lawyer fees and the modification was not awarded. Why are we only
required to support our children until they are 18 but adult ex's receive alimony, often times for
20+ years?
Ginger, Windham County, Vermont
5. Vermont’s Current Alimony Laws
Vermont's Current Alimony Laws:
Are amongst the most Draconian and outdated in the United States
Allow for alimony to be paid for life, it is called permanent alimony
Do not allow payors the ability to ever retire and have their payments ended or lowered
without costly returns to Court; even when the retirement is forced
Dictate that payors must give up significant percentages of their pensions or social
security, even to an ex who has his or her own pensions and social security
Ex-spouses can remarry and still receive alimony payments from their previous spouse
Have no defined formula. Judges have arbitrary and unbridled discretion in ordering an
amount and duration to pay
The current alimony laws state that a payor can apply for modification of payment only
when there are significant, unforeseen changes in their financial circumstance; however,
there is no actual definition of what this means creating more judicial discretion and
confusion
The Legislative Goals of Vermont Alimony Reform are to achieve a constitutionally acceptable
reform of Vermont's outdated alimony laws through changes in legislation by the Vermont House
of Representatives and Vermont Senate. These changes can only begin to be accomplished
through the formation of a Legislative Committee that includes all participants in the Family
Court process of alimony. These include Legislators, Judges, Lawyers, and Payors. It is only
through open dialogue and transparency that we can all work together to bring consistency,
predictability, and fairness to the Family Court system as it refers to alimony.
6. Vermont Alimony Reform’s Legislative Goals
Legislative Goals:
Encourage self-sufficiency for the lower earning spouse in a reasonable amount of time.
Guidelines for the term of alimony payments based on the length of the marriage.
Establish guidelines and structure to provide consistency and predictability for litigated
cases.
Encourage mediation vs. litigation.
Provide guidelines to allow both payors and receivers to prepare for their retirement.
A second spouse's income should never be a factor when a payor remarries.
All financial obligations terminate automatically upon the recipient's remarriage.
An Alimony obligation terminates when the payor reaches the National FULL Retirement
Age, (currently 67) the ability to continue working should not be a factor. The current
laws do not allow a payor to ever retire.
Alimony amount based on NEED with a maximum of 30-35% of the difference of the
incomes of both parties.
Establish specific guidelines to give Family Court Judges direction and guidance, resulting
in greater consistency, predictability and fairness throughout the entire state of Vermont.
Co-habitation of the receiving spouse for a period of three months should terminate an
alimony obligation. A clear definition of co-habitation written in the law.
The right for existing alimony payors, with modifiable judgements or agreements to file
for a modification based on the new guidelines.
Alimony awards based on need and ability to pay rather than as an entitlement.
Several classifications of alimony to better fit the needs of people in divorce, including but
not limited to, Rehabitational, Reimbursement, Transitional, and General Term Alimony.
Any other reform to encourage and provide for people in divorce to move on with their
lives as peacefully and amicably as possible.
7. Contact Information
For More Information, please contact:
Rick Fleming, President
Vermont Alimony Reform
P.O. Box 1971
Brattleboro, VT 05302
(802) 490-8534
www.vtalimonyreform.com
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MASSACHUSETTS’
ALIMONY REFORM ACT
Susan M. Murray, Esq. Andrew J. Kestner, Esq.
Langrock Sperry & Wool, LLP PO Box 721
210 College Street Burlington, VT 05402
(802) 864-0217 Fax: (802) 864-0137
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Massachusetts’ Alimony Reform Act of 2011:
INITIAL NOTES:
Before discussing the Massachusetts Alimony Reform Act, it’s important to note that there are
significant distinctions between Vermont law and practice Massachusetts law and practice that may play
into how and why Massachusetts’ law evolved as it did. The most important of the distinctions between
the two states are these:
Inter-play between Child Support and Alimony:
o When analyzing the Massachusetts Alimony Reform Act, it is important to consider
certain differences between Massachusetts and Vermont practice in how support awards
are calculated.
o In Massachusetts, the Child Support Guidelines apply to the first $250,000 of joint
income earned by the parties.
o Income “treated” for the purpose of calculating Child Support may not be used as the
basis for an alimony award.
o Therefore, in cases with minor children in which Child Support is due, alimony is
frequently not paid unless the parties agree to an “all alimony” order.
o It is also important to note that Child Support does not have the same “independence” in
Massachusetts as it does in Vermont. There are no Child Support Magistrates in
Massachusetts and Child Support Orders are entered as part of a Judgment of Divorce or
Separation Agreement.
Merger and Survival of Provisions:
o In Massachusetts, parties may elect to have an alimony provision “merge” into a
separation agreement and, therefore, remain modifiable by the Court, or agree that the
provision will “survive” as an independent contract between the parties and not be
modifiable by the Court.
o Unlike Vermont, it is not necessary for alimony to be awarded at the time of the divorce
for it to be awarded in the future. Parties may waive alimony at the time of divorce, but
agree to a “merged” waiver which allows either party to seek alimony in the future (but
only in the event they can prove a material change in circumstances). Conversely, parties
are free to agree to lump sum alimony buy-out payments with the security of knowing
their agreement “survives” and is not modifiable in the future.
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Introduction to the Massachusetts Alimony Reform Act
The Massachusetts Alimony Reform Act of 2011 (the “Act”) was signed into law by
Massachusetts Gov. Deval Patrick on September 26, 2011. (Although commonly referred to as
the Alimony Reform Act, the new provisions were ultimately codified as Mass. General Laws,
Chapter 208, §§ 48-55.)
Among the important changes brought about by the Act were:
1. The establishment of four separate categories of alimony, including “general term,”
“rehabilitative,” “reimbursement” and “transitional” alimony.
2. The ability to place durational limits on an alimony award, as well as clear guidelines
concerning when, and for how long, a general term alimony order is appropriately
entered.
3. The ability to seek suspension, reduction or termination of alimony based upon the
cohabitation of the recipient.
4. An affirmative right to seek a termination based upon the payor having reached full
Social Security retirement age.
Summary of Former Law
Two problematic issues existed in Massachusetts practice prior to the passage of the Act:
o (1) A lack of consistency regarding when alimony would be awarded, and (2) the
inability to place duration limits on an alimony award once ordered.
With respect to the entry of an alimony order, the length of the marriage was (and
still is) a critical determining factor. However, prior to the Act Massachusetts
judges enjoyed great discretion in determining when an alimony order should be
entered. Although the common practice was for alimony to be awarded only after
10 to 12 years of marriage, different judges had different “rules of thumb” as to
when an alimony order would enter.
Perhaps most problematic for payors, if an alimony order was entered by the
court, it could not be terminated after a fixed number of years. Alimony could
terminate only upon a party’s death, the recipient’s remarriage, or the payor’s
actual retirement. As a result, many payors were obligated to pay alimony for a
term well in excess of the length of their marriage.
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“General Term” Alimony under the Alimony Reform Act
The lion’s share of alimony awards entered in Massachusetts are “General Term” alimony
orders.
Duration
The Act creates a clear formulaic framework for how an alimony obligation is calculated based
on the length of the parties’ marriage:
0-5 Years: Durational limit not to exceed 50% of the length of the marriage.
5-10 Years: Durational limit not to exceed 60% of the length of the marriage.
10-15 Years: Durational limit not to exceed 70% of the length of the marriage.
15-20 Years: Durational limit not to exceed 80% of the length of the marriage.
20+ Years: No durational limit required.
The length of a marriage is measured from the date of marriage to the date of service of a
Complaint for Divorce, not the date of the Judgment nisi. Judges may consider pre-marital
cohabitation when “tacking on” addition months to the length of the marriage.
Also note, according to the Act the term of the payment resulting from the formula is an outer
limit on the length of an order, not the presumed/default length. In practice, however, it is
commonly argued that the term of the payment resulting from the formula is the presumptive
length.
Amount
Note that the percentage basis for the award does NOT change based upon the length of the
marriage.
Specifically, the Act provides that an award “generally” should not exceed 30 to 35 percent of
the difference in the parties’ incomes. Prior to the Act, it was generally accepted that 33% of
the difference in the parties’ incomes was the benchmark for calculating an alimony award.
Therefore, the mechanics of the calculation changed very little with the passage of the Act.
Also note, as more specifically discussed below, alimony and child support are not calculated
based on the “same” dollars and in cases with children, alimony is typically only ordered when
the parties’ joint incomes exceeds $250,000, which is the maximum income upon which child
support orders are calculated.
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Life Insurance
(NOTE: In Massachusetts, courts can and usual do order payor spouses to obtain life insurance as
security for alimony and child support obligations.)
Additional Forms of Alimony
The Massachusetts Act allows for additional forms of alimony to be paid under certain specific
circumstances (these types of alimony are rarely awarded; the most common type of alimony is “general
term”):
Rehabilitative
A periodic payment to a recipient spouse who is expected to become economically self-
sufficient.
Maximum five year term.
Terminable upon traditional grounds such as remarriage or the death of either party, but
ALSO terminable upon the occurrence of a specific event set forth in the Judgment (i.e.
obtaining employment in a certain field).
May be extended upon a showing of “compelling circumstances.”
May begin upon the termination/expiration of a child support award.
Reimbursement
Applicable only in marriages of 5 years or less.
May be a periodic or one-time payment.
Intended to reimburse a spouse for contributions to the other spouse’s education or
specific employment training.
*Note that Massachusetts does not designate a professional license as a divisible
asset in divorce.
Recipient spouses are not required to prove “need” because the purpose is to compensate
them for their prior contribution.
NOT limited to compensation for direct financial contributions.
Transitional
Applicable only in marriages of 5 years or less.
May be a periodic or one-time payment
Payment term cannot exceed three years
Terminable upon death of recipient but NOT payor
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o May lead to estate claim; alternatively, life insurance may be required as security.
Sample Scenarios under the Alimony Reform Act
“The Good”
One could argue that the Act’s passage improved the position of spouses (and
practitioners) in divorces involving marriages of 10-15 years in duration.
In marriages of this length, enormous uncertainty existed as to whether alimony would be
ordered by the court, making it difficult for lawyers to advise clients of the likely
outcome at trial. Worse yet, the parties could not compromise and agree to a specific
term of alimony because term alimony could not be ordered OR agreed upon by the
parties. Unless a buy-out could be negotiated and labelled as property division, the
parties were in a very uncertain position.
Example(s) under the old law:
o Jack and Sally met in college and are married at age 25. After 15 years of
marriage and two children, Jack decides to end the marriage, and serves Sally
with divorce papers. Jack is a businessman and earns $350,000 a year. Sally
worked in the tech industry and out-earned Jack for the first three years of their
marriage, but she stopped working after the birth of their first child twelve years
earlier, and had not worked outside the home since then.
o Jack and Sally’s children are ages 12 and 10 when Jack files for divorce.
o Both prior to, and after the Act, Jack will pay child support on his first $250,000
of income. Since Sally is not working, Jack’s child support obligation will be in
the ballpark of $4,500 a month.
o Prior to the Act, enormous uncertainty existed regarding what, if any, additional
financial obligation Jack would have to Sally.
o Under Scenario #1, the case is assigned to Judge Stone Cold – who incidentally
has been paying his former wife alimony for 10 years and quietly supports
alimony reform himself. Jack decides to take the case to trial and Judge Cold
orders him to pay child support until his youngest child is emancipated (under
Massachusetts law, age 18, or up to age 23 if a full time student). He finds that
Sally, despite her twelve-year long absence from the work force, was a high
earner in the tech industry and can easily find gainful employment. Ultimately,
Sally never finds a job and when her child support terminates she’s 50 years old
and has no ability to support herself.
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o Under Scenario #2, the case is assigned to Judge Warm Heart. She orders Jack to
pay child support and finds that Sally has been absent from the workforce for too
long and that it will be difficult for her to become re-employed in her former
profession.
o Judge Heart orders Jack, in addition to child support, to pay annual alimony of
$35,000, to terminate on either parties’ death, Sally’s remarriage or Jack’s actual
retirement.
o Fast forward 23 years – Jack is age 63 with no realistic prospect of retirement on
the horizon. He’s paid Sally in excess of $800,000 of alimony over 23 years.
Meanwhile, Sally’s boyfriend John, also a successful businessman, realized what
a catch she was soon after her divorce from Jack. John had experienced his own
nasty divorce, and although happily dating for the last 20 years, Sally and John
never married.
o John is a doting boyfriend and attends to Sally’s every need. As for the $35,000
Sally receives from Jack, that pays for Sally and John’s annual trip to Fiji.
Example under the Alimony Reform Act
o The result of Jack’s and Sally’s divorce under the Act is much more
straightforward:
o First, Jack pays Sally child support on his first $250,000 of income.
o Second, because Jack served his divorce complaint a few months prior to their
15th
anniversary, Jack will also pay annual alimony of $33,000 for a fixed term of
about 10 years (14.5 years of marriage x 70%).
o Under the Act, Jack and Sally’s lawyers realize that Jack’s child support
obligation and alimony obligation will each extend for a term of about 10 years.
Therefore, they advise their clients, and the clients agree, that Jack will pay an
“all alimony” order for 10 years in an amount which is higher than the combined
child support/alimony amount. All of the payments are therefore deductible to
Jack, which is a benefit to him, and at the same time Sally has more after-tax
income in her pocket. Jack knows that Sally could take him back to Court for
child support after the 10 year term expires, and if his youngest is still enrolled in
college (and therefore not emancipated under Massachusetts law), but that’s a risk
he is willing to take.
o Alternatively, perhaps Jack and Sally negotiate an alimony buy-out. Jack believes
his business will continue to grow and wants freedom from future obligations in
excess of the child support he will pay Sally. While Jack’s income may increase,
thereby potentially increasing his alimony obligation, and Sally may become
gainfully employed, thereby potentially decreasing Jack’s alimony obligation, the
current alimony obligation ($30,000 to $35,000 annually) and likely term of that
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obligation (10 years) is very clear to both parties. Jack is reasonably confident his
total obligation will be at least $330,000, unless Sally remarries or passes away.
That’s a risk he is willing to take. After tax-affecting the lump sum amount and
negotiating a present value discount, Jack and Sally agree that he will make a
lump sum payment to Sally of $250,000 as a non-taxable property transfer
incident to divorce. The parties agree to a “survived” waiver of alimony (which
means that their agreement will not merge into but will survive the court order),
and both parties are pleased with the finality of the result. Sally still marries John
4 years later, but Jack’s business’s revenues triple over that time. Both parties
walk away happy.
“The Bad”
The relative positions of spouses in a short term marriage can be dramatically different
than what it had been prior to the passage of the Act.
Prior to the Act’s passage, in a short term marriage (of five years or less) a Massachusetts
court would generally leave the parties in the same position they found themselves when
they entered the marriage. A marriage of less than 5 years, most especially without
children, was seen as a “walk away.”
However, following the passage of the Act, the lower earning spouse in a short-term
marriage has a claim to a portion of the higher earning spouse’s income, the value of
which may exceed the amount of joint property the parties created during the marriage.
Example:
o Sam and Pat are married at age 27. Both come from comfortable families, have
no student loans and are gainfully employed.
o Pat serves Sam with a complaint for divorce on Sam’s 30th birthday, three years
after they were married. Sam and Pat have no children, rent a condo in Boston
and spent freely during their short marriage.
o Sam and Pat did manage to save $5,000 together, between wedding gifts and
modest savings. Other than automobiles, neither party brought any significant
assets into the marriage.
o Sam is a wholesaler at a large financial firm and just received a raise. Sam is now
earning $150,000 annually.
o Pat is a teacher and coach at the local high school and earns $50,000.
o Although Sam and Pat have only $5,000 of marital asset to divide, Pat can assert
an alimony claim and demand future payments from Sam or pressure Sam into a
“buy-out” of that claim.
o After three years of marriage, Pat asserts that Sam owes $33,000 of annual
alimony for the next 18 months, which is half the length of the marriage ((Sam’s
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income of $150,000 less Pat’s income of $50,000) x 33% = $33,000 per year), for
a total alimony award of $49,500).
o Although Pat’s lawyer may never make good on his threat to take the case to trial,
and might not be able to provide the requisite “need” necessary to merit an award,
Sam’s lawyer’s advises that she can’t guarantee what would happen at trial and
that Sam should not take the risk. Sam settles and agrees to pay $20,000,
borrowed from his parents, because a trial would cost $35,000.
o Before the passage of the Act, the marriage would be a “walk away” and Sam and
Pat would leave with their automobiles and $2,500 each. Alternatively, Sam
could offer Pat the entire $5,000 of savings and avoid paying to consult with a
lawyer. Prior to the Act, this would have been Pam’s best possible result, as no
leverage would have existed for an alimony buyout.
Issues with Implementation
As a general rule, the Act has been well-received by family practitioners and litigants in
Massachusetts.
The Act created certainty and made settling difficult cases more straightforward.
Primarily, the issues which have arisen regarding the Act relate to its implementation and
application to pre-existing alimony orders.
Limitations on Initial Right to Modify
Importantly, the Act contains specific dates upon which a party subject to an existing alimony
order can seek a modification based upon the current order having exceeded the durational limits
set out in the Act. This prevented, among other things, a flood of litigation in the Probate &
Family Court.
The terms of the Act outlined below were ultimately not codified in the Massachusetts General
Laws, but served an important role in controlling the tempo of litigation filed as a result of the
passage of the Act.
The following “schedule” dictated the timing of a litigant’s right to seek modification based upon
exceeding the durational limit found in the Act, with the earliest date falling exactly one year
after the Act became effective:
o March 1, 2013 for parties married five years or less;
o March 1, 2014 for parties married ten years or less;
o March 1, 2015, for parties married fifteen years or less; and
o September 1, 2015 for parties married fifteen to twenty years.
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*Recall that there is no durational limit imposed on alimony orders entered after twenty or
more years of marriage, and therefore, exceeding the durational limit found in the Act was
not possible and not a basis for modification.
Retroactive versus Prospective Application of the Alimony Reform Act
The Act specifically provided that payor spouses can seek a modification of their alimony
obligations if their existing obligations exceeded the durational limits provided in the Act.
Therefore, the Act clearly applies retroactively in these instances.
However, after the passage of the Act a great debate arose about whether any other provisions of
the Act could be applied retroactively to existing orders.
This, more than any other issue arising from the passage of the Act, was the subject of litigation.
The seminal cases decided by the Supreme Judicial Court of Massachusetts (“SJC”) after the
passage of the Act, dealt primarily with whether certain provisions of the Act should apply
retroactively or prospectively.
Chin v. Merriot, 470 Mass. 527 (2015)
After twelve years of marriage, the parties were divorced in 2011, prior to the passage of the Act.
At the time of the divorce, Husband was 67 years old and Wife was 69.
Husband agreed to pay alimony in the amount of $650 per month. The alimony provision of the
parties’ Separation Agreement “merged,” and, therefore, remained modifiable by the Court.
When Husband reached age 68, less than two years after the divorce, he moved to modify,
alleging that he had reached full Social Security Retirement Age, a basis for termination under
the Act.
Ultimately, the SJC found that the provisions of the Act relative to retirement age and
cohabitation did not apply retroactively to divorce judgments entered prior to the Act’s passage.
The SJC found “… the Legislature could not have expressed its intent more clearly; only a claim
for modification based on durational limits may, but will not always, apply retroactively to
existing alimony judgments.
Despite the SJC’s comment that the Legislature was clear, the decision came as a surprised to
many family law practitioners (see DeMarco v. DeMarco, below).
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Rodman v. Rodman, 470 Mass. 539 (2015)
In Rodman, the parties were married for 39 years and divorced in 2008, prior to the passage of
the Act.
The parties entered into a Separation Agreement which provided that the Husband would pay
$1,539 per week in alimony. The alimony provisions of the Separation Agreement were merged
into the Judgment, and were therefore modifiable.
Husband moved to modify, and sought a temporary order terminating his obligation during the
pendency of his motion.
The Husband argued that because the alimony provisions of the Separation Agreement were
“merged” they remained freely modifiable and subject to review by the court, including the
application of the provisions of the Act.
The court denied Husband’s motion and reported the case for immediate review by the Supreme
Judicial Court. The SJC upheld the denial of Husband’s motion and, again, held that the Act was
not retroactive as it applied both to “merged” and “survived” alimony orders. The SJC further
confirmed that the only basis for retroactive application of the Act was a payor having exceeded
the durational limits provided in the Act.
DeMarco v. DeMarco, 89 Mass.App.Ct. 618 (2016)
Confusions regarding the retroactive application of the Act was also front and center in the
DeMarco case.
The parties reached an agreement during the pendency of Husband’s modification action, prior to
the SJC releasing its decision in Chin v. Merriot. The settlement required the Husband to make a
lump sum payment to the Wife in exchange for a “surviving” agreement to terminate alimony.
Soon after, the Chin decision was released by the SJC, the terms of which materially
strengthening the Wife’s argument against modification. Specifically, the SJC held in Chin that
the retirement provisions of the Act did not apply retroactively, and that a payor under an
existing order could not seek modification solely on the basis of having reached full Social
Security Retirement age. Specifically, the Husband in DeMarco had reached full Social Security
Retirement age but continued to work.
In light of these facts, the Wife filed a Motion for Relief from Judgment asserting that she was
entitled to “relief from the settlement agreement based on recently released decisional law” – i.e.
the Chin case.
Further, she argued that she would not have accepted a lump sum payment in the amount agreed
upon had it been clear to her that the retirement provisions of the Act did not apply retroactively.
The Appeals Court ruled against the Wife, holding that it would not set aside an arms-length
agreement absent fraud, coercion or countervailing equities.
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