The Supreme Judicial Court recently issued its decision in the case of Holmes v. Holmes involving the issue of alimony paid under a temporary order and its impact on the durational limits under the Alimony Reform Act.
In Holmes the Court, Gants, J., unanimously decided that a Husband payor's long term alimony obligation should be measured starting from the date of the Probate Court's judgment of divorce, and not from when the payor was first ordered to pay temporary alimony.
The Court stated that temporary alimony is separate and distinct from general term alimony:
“Under the Alimony Reform Act of 2011, St. 2011, c. 124 (reform act), ‘[i]f the length of the marriage is [twenty] years or less, but more than [fifteen] years, general term alimony shall continue for not more than [eighty] per cent of the number of months of the marriage’ unless the judge makes a written finding that deviation beyond this time limit is required in the interest of justice. G.L.c. 208, §49(b)(4).
The issue presented in this case is whether alimony paid under a temporary support order during the pendency of a divorce proceeding, pursuant to G.L.c. 208, §17 (temporary alimony), must be included in calculating the maximum presumptive duration of general term alimony under §49(b). We conclude 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.
We also conclude 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.”
Counsel for both sides should keep this in mind when drafting temporary orders for alimony and/or the final Separation Agreement to include language regarding the intent of the Parties regarding any temporary alimony orders and the start date for the durational limits set out in the Act.