December 1, 2009
Written by Dr. Lynne C. Halem, CMDR Diector
Since November 9, 2009, the Massachusetts Supreme Judicial Court decision in Pierce vs. Pierce has been the talk of the town. In its essence, the Court denied Rudolph Pierce, a former state judge and former law partner, his appeal to terminate alimony payments to his former wife, Carneice Pierce, on the basis of his retirement. While the Court approved a reduction in annual payments from $110,000.00 to $42,000.00, they opined that the circumstance of his retirement, albeit an important consideration, was by no means the full story. His former wife was currently unemployed and, being 64 years of age, was not yet eligible to collect full social security. On the other hand, Mr. Pierce had a working wife and the ability, in the Court’s opinion, to generate additional income from teaching and legal consulting. Also, he, at age 67, was receiving $24,000.00 per year in full social security.
The key question posed by the case was based on whether or not an alimony payor’s retirement, after an equal division of assets upon divorce, would compel the Court to terminate spousal support. The Court’s ruling issued a resounding – “maybe”. A payor spouse “may be expected temporarily”, it stated, “to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.” In this instance, Ms. Pierce had been earning $95,000.00, but resigned in June 2008 after her job was restructured to include more travel.
Part of the Court’s ruling was related to the voluntary nature of Mr. Pierce’s retirement; his employment, after all, was not terminated. Part of the ruling was related to Mr. Pierce’s ability to maintain his standard of living after his retirement. Clearly, however, the ruling pivoted on the judge’s determination that Ms. Pierce’s need for financial assistance was real and Mr. Pierce had the financial ability to help.
Fair or unfair, as you may call the judicial ruling, the key point to remember is that the termination of alimony depends squarely on the circumstances of the parties. The Court, in its ruling, reminded Mr. Pierce that the parties’ agreement did not provide for termination upon retirement. Why, the court questioned, in 1999 (not so long ago), when Mr. Pierce was 57 years of age, was retirement not part of the deliberations? Why did the parties’ agreement omit any consideration of retirement as a point of change?
Since in other cases, appeals to terminate support upon retirement are often approved, it is clear that both recipients and payors of alimony need to consider termination and change points in their agreement. End points limited to remarriage of the recipient spouse or the death of either spouse are simply too narrow and quite obviously present invitations for modification pleadings.
While Ms. Pierce was victorious in 2009, her alimony was still reduced by 62%. Mr. Pierce plans to return to court in two more years, once again to ask for a termination of alimony. Please note the complaint for modification was first filed on August 24, 2007. An order was issued on March 17, 2008 and then appealed. The appellate ruling of November 9, 2009 sent the case back to the Probate Court for further proceedings consistent with the high Court’s opinion. How much, one needs to ask, did each party pay in legal fees from August 2007 through November 2009 to achieve the verdict they received? Clearly the ruling did not even constitute a real victory for Ms. Pierce. And, again, how much will the cost be when the parties return now to the Probate Court for more proceedings? How much again in 2011?
Perhaps the parties should mediate a resolution to their dispute. At some point in time, the alimony termination will be approved. Will the cost of its adjudication exceed its monetary value? Will the emotional angst cause more damage? Perhaps the parties need to take control of a system that is not helping either of them. Perhaps the parties need to consider the costs at stake, both financial and emotional, and take the initiative to determine their own fate.