Recently, the S.J.C. issued a decision, in George vs. George, which addressed the issue of whether a trial judge, on a complaint for modification of an alimony judgment that predated the Alimony Reform Act, may deviate from the durational limits of M.G.L. ch 208 §49, on the basis that the alimony provisions of the parties’ separation agreement, which were merged into the judgment, were inextricably connected with the property division provisions of the agreement, which survived the judgment.
In the decision, the S.J.C. engaged in a discussion regarding deviations “in the interests of justice,” after proof “by preponderance of the evidence” (see page 9 of the decision). Section 49(e) states that, “unless the payor and recipient agree otherwise, general term alimony may be modified in duration or amount upon a material change of circumstances warranting modification.” Section 49(f)(2) goes on to say that the court may grant a recipient an extension of an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of (i) a material change in circumstances that occurred after entry of the alimony judgment; and (ii) reasons for the extension that are supported by clear and convincing evidence.”
In George, the S.J.C. acknowledged the clear and convincing standard at the bottom of page 5 (onto page 6), namely that under “the act, general term alimony may be modified in amount and duration upon a material change of circumstance.” Yet, it then concluded at Page 9, that “the recipient spouse bears the burden of proving by a preponderance of the evidence that deviation beyond the presumptive termination date is ‘required in the interests of justice’” pursuant to Section 49(b).
It is uncertain how that portion of the George decision and Section 49(f)(2) can be read together. In this respect, it may be that the S.J.C. is mistaken.