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their own stories to argue that the state’s statutes are outdated and unfairly burdensome to payers.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

Follow Mike on Twitter @MikeFaher

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

Mike Faher reports and writes for both VTDigger, and The Commons (Read more

EMAIL: MFAHER@VTDIGGER.ORG

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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

vtalimonyreform@outlook.com

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

smurray@langrock.com akestner@langrock.com

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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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