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  NISSENBAUM’S STANDARD SET OF

 SUMMARIES OF LAW

Modifications of Judgment

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 WARNING!  THIS IS A DISCLAIMER!  NOTHING ON THE WEB SITE IS TO BE CONSIDERED IN THE NATURE OF LEGAL ADVISE, NOR IS THE INFORMATION PROVIDED NECESSARILY UPDATED TO INCLUDE THE LATEST MASSACHUSETTS CASES OR CASES FROM OTHER JURISDICTIONS WHICH MAY EFFECT THEIR CASE.   YOU MUST CONTACT THE LAWYERS AT Wendy Hickey Law OR OR ANOTHER EXPERT IN FAMILY LAW IN ORDER TO SEEK INDIVIDUAL LEGAL ADVICE ABOUT YOUR CASE. 

1.0 Modification Of Alimony.

"[T]he fundamental purpose of alimony [is] to provide economic support to the dependent spouse." Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).

Even "scrupulous and careful" effort by the probate judge is inadequate if it failed "adequately to take into account traditional alimony considerations and resulted in an inequitable award." Grubert v. Grubert, 20 Mass. App. Ct. 811, 811 (1985).

Modification decision must be based upon a balancing of all the financial and equitable factors. Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987)).

Modification must be "consistent with common sense and justice" Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 570 (2001).

Probate court judges have a great breadth of discretion when dealing with complaints for modification of alimony pursuant to G. L. c. 208, � 37. Schuler v. Schuler, 382 Mass. 366, 368 (1981), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

Judge is required to fairly and equitably evaluate and all of the circumstances relevant to the totality of the parties' situations. Schuler v. Schuler, 382 Mass. 366, 370-373, 376 (1981), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

A "party has no right to waste an asset deliberately or ignore a feasible source of income . . . ." Pagar v. Pagar, 9 Mass. App. Ct. 1, 4 (1980).

Capital assets should be used to evaluate a supporting spouse's ability to pay alimony in a modification proceeding. See Krokyn v. Krokyn, 378 Mass. 206, 213-216 (1979); Schuler v. Schuler, 382 Mass. at 375-376; Pagar v. Pagar, 9 Mass. App. Ct. at 8; Cooper v. Cooper, 43 Mass. App. Ct. 51, 53 (1997), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

"Common sense and basic concepts of fairness support the notion that ownership of a valuable asset demonstrates ability to pay without further inquiry as to whether payment can be enforced directly against the asset. . . . The law does not require that an obligor be allowed to enjoy an asset -- such as a valuable home or the beneficial interest in a spendthrift trust -- while he neglects to provide for those persons whom he is legally required to support." Krokyn v. Krokyn, 378 Mass. 206, 213-214; Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

The judge must consider the income, potential income, or assets of a party’s then spouse in assessing the party’s overall financial capability and expenses. See Bak v. Bak, 24 Mass. App. Ct. 608, 623 (1987); Cooper v. Cooper, 43 Mass. App. Ct. 51, 55-56 (1997); Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

An obligor's personal aspirations "must be balanced against his obligations to support his former [as well as] present families." Schuler v. Schuler, 382 Mass. at 372).

The original judgment reflected no expectation or intention that Nathan's alimony obligation was to end short of his death or clearly established inability to pay. See Huddleston v. Huddleston, 51 Mass. App. Ct. at 570. Cf. Freedman v. Freedman, 49 Mass. App. Ct. 519, 523 (2000).

The abrupt termination of otherwise unconditional and indefinite alimony demands "clear and adequate explanation," Bowring v. Reid, 399 Mass. 265, 268 (1987).

An arbitrary limitation on the duration of an alimony obligation to a spouse whose needs are current and predictable is unwarranted when based on an assumption of future events, the occurrence of which is uncertain or unpredictable. See Goldman v. Goldman, 28 Mass. App. Ct. 603, 612-613 (1990); Martin v. Martin, 29 Mass. App. Ct. 921, 922-923 (1990); Ross v. Ross, 50 Mass. App. Ct. 77, 80-81 (2000).

It is a public policy to not make an order that would result in a party becoming a public charge. See O'Brien v. O'Brien, 325 Mass. 573, 578 (1950); Knox v. Remick, 371 Mass. 433, 437 (1976).

"We do not believe that the [former husband] ought to be permitted to shift to the public the obligation he assumed when he married [his first wife]. It may be that because of his second marriage he will suffer some financial hardship, but the short answer to that is that he must have entered into the second marriage conscious of his obligations to his former wife so that the second marriage with its attendant obligations affords him no relief." O'Brien v. O'Brien, 325 Mass. 573, 578 (1950), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).

A support provider does not "have to deplete his total liquid or other assets in an effort to meet his support obligations". Schuler v. Schuler, 382 Mass. at 375.