MODIFICATION OF ALIMONY
George Clemence v. Kristine Sklenark, 90 Mass.App.Ct.646 (2020)
A key decision that determines alimony waivers constitutes a "zero-dollar alimony award" and starts the clock for the Alimony Reform Act's durational limits.
After thirteen years of marriage, George Clemence and Kristine Sklenark decided to part ways and divorced in January 2017. The judgment of divorce incorporated the terms of the parties’ separation agreement within which the husband conditionally waived any past, present, or future alimony. Mandated by the alimony condition, the marital home was to be sold to a non-relative for $725,000, with 60% of the resulting equity belonging to the husband. If the marital home could not be sold for the agreed-upon amount, the husband would hold the right to seek future alimony by filing a complaint for modification.
The marital home sold in August 2017, for $433,000 – resulting in a significantly smaller equity payment to the husband than outlined in the separation agreement. Following the sale, the husband brought forth a complaint for modification, seeking alimony. On November 9, 2017, the probate court judge ordered the wife to pay $200 per week in alimony for the maximum duration under the Alimony Reform Act of 2011 for a 13-year marriage – 98 months. The alimony award would continue unless modified, until October 8, 2026, unless a party died or if the husband remarried or cohabitated with another.
Following this judgment, the wife challenged the alimony duration by arguing the ninety-eight (98) month duration should be counted from the initial judgment of divorce instead of the date of the judgment for modification, which would eliminate approximately 43 weekly alimony payments from the wife’s obligation. Previous court decisions have established that the maximum alimony durational clock begins to run on the date of the initial general term alimony award. Generally, this would occur on the date of the divorce judgment, however, a later date may be used if alimony is not addressed at the time of the divorce judgment. On appeal, the Court discussed whether a waiver of alimony constitutes a “zero-dollar alimony award” or if the husband had not had full opportunity to adjudicate his claim for alimony.
The Court first reasoned that the separation agreement contained an initial award of general term alimony as required by the Alimony Reform Act because the existence of such a waiver was proof that the husband was provided sufficient opportunity for contemplating alimony, even if the resulting amount was zero. Additionally, the alimony waiver implicitly provided that if the marital home could not be sold within the outlined conditions, that the husband would have a right to pursue future alimony. Essentially, the reduced proceeds from the sale created a “material change in circumstances” for which a modification of the initial zero-dollar alimony award would be warranted. Since proving a material change in circumstances is not required during an initial award for general term alimony, the Court was persuaded that the husband had previously received an alimony award. Ultimately, the Court held in favor of the wife by deciding that the maximum duration she could be ordered to pay alimony to the husband began on the date of divorce.
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