REDUCING, TERMINATING OR SUSPENDING ALIMONY DUE TO COHABITATION

The Alimony Reform Act, effective March 1, 2012, finally brought Massachusetts in line with alimony policies in almost all other states by considering cohabitation, retirement and length of marriage as important factors in conjunction with setting the duration of a person’s right to receive alimony.

This week’s article addresses cohabitation, which was the central subject of a trial handled by Grossman & Associates, Ltd. on January 24, 2013 in the Middlesex Probate Court in Cambridge.  The new statute says: “General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months.”

There is no Massachusetts case yet to help us interpret the meaning of the cohabitation provision, so we can only use our plain English interpretation to anticipate what might happen.

The first hurdle is to prove the cohabitation itself.  In anticipation of the statute, some alimony recipients changed their cohabitation.  People have been known to conceal their cohabitation in order to avoid detection and loss of alimony.  Private investigators report that surveillance for cohabitation has risen.  Those seeking to prove cohabitation look to various sources such as voter registration, tax documents and employment records to show that people are residing at the same address.

Once cohabitation is established, the analysis turns to the alimony recipient’s need, and the payor’s ability to pay.  Whether the need analysis at the time of cohabitation is the same as the need analysis at the time of divorce is to be determined by future case law.  What guides the Judge in determining whether to reduce, terminate or suspend alimony?

The importance of determining “need” has been shown in various cases, such as Heins v. Ledis, 422 Mass. 477 (1996) and Gottsegen v. Gottsegen, 397 Mass. 617 (1986), as alimony is not intended to pay 100% of a recipient’s expenses.  Doing so would only encourage a recipient to increase their spending, incur additional credit card debt, and live a life more lavish than they can afford.  Burdening the payor with the obligation to meet their former spouse’s arbitrary, and perhaps inflated expenses, is unfair.  Determining need is a fact sensitive analysis made by the Judge, who is guided by past cases and a sense of fairness.

So far, many cohabitation cases have settled without a trial, meaning that the parties reached and signed an agreement between themselves which documents the change in alimony.  Their Agreement is then presented and approved by a Judge, who makes the Agreement a Court Judgment.  Such settlements are not decided by a Judge after hearing the facts at trial, but instead are merely reviewed by the Judge for fairness, and are not usually instructive of how your case would be decided at trial.  While these settlements are part of the court’s public record, they are not generally available to the public unless you are one of the party’s to the case or one of the connected attorneys.

The most expeditious way to resolve the cohabitation issue is directly with the opposite party, or through mediation, to explore settlement without substantial litigation cost.  If reason prevails, alimony can be reduced or terminated, an Agreement drafted, signed and approved.  Absent agreement, we wait to see what decisions are made by Judges on this issue, keeping in mind that rarely are two cases built on the same facts.

Advertisements

PARENTS WHO AREN’T RECOGNIZED UNDER THE LAW

The New York Times article about a man who has no legal rights to a child born of his live-in partner by in-vitro fertilization highlights a growing problem of parent’s rights.  Recent cases have shown that the changing definition of family challenges the traditional understanding of a person’s rights and obligations to a child.

Essentially, a person cannot be a child’s actual parent unless it is through legal adoption or biology.  Parenting rights are not acquired by living together, the number of diapers changed, trips to the park, birthdays celebrated or nights of homework.  The right to be a child’s parent does not happen by default unless you have a biological connection to the child’s life.   If not biologically connected, it is critical that a person who wants to be a child’s parent pursue the legal adoption process and secure the approval of a Court.

If named as a Guardian in a Will, a person can garner certain rights to a child along with certain obligations for their care, but they cannot be a “parent” through someone’s Will.   In Massachusetts, the Probate Code permits a Court to appoint a Guardian  for a minor child if: i) the minor’s parents are deceased or incapacitated; (ii) the parent’s consent; (iii) parental rights have been terminated; (iv) the parents have signed a voluntary surrender; or (v) the court finds the parents, jointly, or the surviving parent, to be unavailable or unfit to have custody.    If appointed a Guardian, that person has the powers and responsibilities of a parent regarding the child’s support, care, education, health and welfare.   A minor child age 14 or older has the right to object to a Guardian.

State courts are more and more challenged by the changing constitution of a family.  Recent cases in Connecticut, and elsewhere, show the difficulties in juggling the rights of children to be cared for, the obligations of parents and their partners (regardless of sex or marital status), and the public policies created by each set of facts.

As for people thinking they are parents, the best way to ensure “ownership” of a child is to formally adopt.

Hindell S. Grossman, Esq.
Grossman & Associates, Ltd.
(617) 969-0069

DO YOU NEED A SECOND OPINION?

Perhaps you could use a second opinion about a legal issue you are experiencing.

While a formal process for securing Second Opinions from lawyers is not a recognized practice in legal circles, like there is in the medical field, there is no reason for it to be ignored as it can be an excellent option.    The value of a second opinion, or even a third, is the advantage of different perspectives, approaches and experiences.   If a second opinion yields almost the same opinion as the first advice, then you are more confident of its success.  If not, then you have broadened the options for resolution.

Some clients fear that a second opinion will offend their first attorney.   While I appreciate client’s concerns about my feelings, I am of the position that the client must do whatever necessary to feel that the approach to their legal problem makes sense.  If a client does not have that level of confidence, they should get a second opinion from another lawyer.  A second opinion does not necessarily mean that you need to abandon your first attorney; it only offers an opportunity for additional ideas.  You may choose to bring the idea back to your original attorney without disclosure of the second opinion.   You may find that the second opinion merely confirmed the direction originally suggested.  You may also discover, however, that there is an alternative approach which had not been mentioned.

As a consumer of legal services you should be sure you know the full range of legal options so you can make the most informed decision, weighing the time, cost, commitment and burden required of each option.   Don’t be shy.  Get a second opinion.

Hindell S. Grossman, Esq.
Grossman & Associates, Ltd.
(617) 969-0069