While the durational limits set forth under the Alimony Reform Act of 2011 are clear, judges, attorneys and litigants alike struggled over the issue of whether alimony payments made to a spouse under a temporary support order during the pendency of the divorce proceedings must be included in calculating the maximum presumptive duration of general term alimony.
In the case, Holmes v. Holmes, the Massachusetts Supreme Judical Court ruled that "temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony."
Background: In this case, the husband was ordered to pay alimony for twelve years from the date of divorce, which was calculated by the judge as the maximum presumptive duration of general term alimony under the Act for a marriage of fifteen years. Although the husband had paid temporary alimony for approximately two and one-half years prior to the divorce, the Judge did not subtract this time period from the maximum presumptive duration of general term alimony. On appeal, the husband argued that the term of alimony should be calculated from the service of the divorce complaint rather than the judgment of divorce, and that the twelve years of alimony should begin in June, 2006, when he was first ordered to pay temporary alimony, not on the date of the judgment of divorce in October 2008.
The Supreme Judicial Court denied the husband's appeal, ruling that alimony paid under a temporary support order during the pendency of a divorce proceeding is not included in calculating the maximum presumptive duration of general term alimony. However, the Court noted that "where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony." Because the Court concluded that there was no suggestion that the wife delayed final resolution of the parties' divorce case, the husband was ordered to pay twelve years of alimony commencing on the date of divorce.
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