Breaking News: Duration of temporary alimony is not included in arriving at maximum durational limit of alimony absent unfair delay by the recipient spouse or an unusually long duration of temporary alimony. Holmes v. Holmes, SJC – 11538 (2014)
The issue in Holmes was whether temporary alimony paid during the pendency of a proceeding (pursuant to M.G.L. c. 208, §17) must be included in calculating the maximum presumptive duration of general term alimony (pursuant to M.G.L. c. 208, §49(b)). In Holmes, the parties were divorced in 2008 after a marriage of just over 15 years (measured at the time of service of the complaint for divorce).
General Laws c. 208, §49(b) provides that
“Except upon a written finding by the court that deviation beyond the time limits of this section are required in the interest of justice, … (3) if the length of the marriage is twenty years or less, but more than fifteen years, general term alimony shall continue for not longer than eighty percent of the number of months of the marriage.”
In this case, the duration would be a period of approximately 12 years.
In 2011, the wife in Holmes sought to increase alimony, and the husband counterclaimed to reduce child support. The trial judge modified the duration of the alimony so that it would end upon the earliest to occur of October 2020 (12 years from the date of divorce) or other circumstances not related to duration.
The SJC concluded, based upon the language of the Alimony Reform Act,
“…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.”
The SJC also concluded 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.”
Holmes; see M.G.L. c. 208, §53(a) (in determining appropriate duration of alimony, judge may consider other factors that are “relevant and material”).
Frances M. Giordano, Esq.
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