NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12059

CLIFFORD E. GEORGE vs. JACQUELYN A. GEORGE.

Suffolk. September 6, 2016. - November 23, 2016.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & 

Budd, JJ.

Divorce and Separation, Alimony, Modification of judgment.

Complaint for divorce filed in the Suffolk Division of the 

Probate and Family Court Department on May 29, 2001.

A complaint for modification, filed on August 26, 2013, was 

heard by Jeremy A. Stahlin, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Brian J. Kelly for Clifford E. George.

Matthew P. Barach (Alessandra Petrucelli with him) for 

Jacquelyn A. George.

LOWY, J. Clifford E. George and Jacquelyn A. George 

married in 1989 and divorced in 2002.

1 Their separation 

agreement, and the judgment that followed, provided that

 

1 Because they share a last name, we refer to the parties by 

their first names.
2

Clifford would pay Jacquelyn monthly alimony. In 2013, Clifford 

filed a complaint for modification of the divorce judgment that 

sought, among other things, to modify his alimony obligation

based on G. L. c. 208, § 49 (b), part of the Alimony Reform Act, 

St. 2011, c. 124 (act), which became effective on March 1, 2012, 

nearly ten years after the parties' divorce. Section 49 (b)

provides that general term alimony for marriages lasting more 

than ten years but fewer than fifteen years shall not continue 

for "longer than [seventy] per cent of the number of months of 

the marriage," G. L. c. 208, § 49 (b) (3), a process by which a 

judge can deviate from the durational limit, where doing so is 

"required in the interests of justice." G. L. c. 208, § 49 (b).

The act also provided a phase-in schedule for when complaints 

for modification based on the new durational limits could be 

brought for alimony obligations that predated the effective date

of the act. St. 2011, c. 124, §§ 4, 5.

In his memorandum of decision, the Probate and Family Court

judge denied Clifford's complaint for modification because he 

found that deviation beyond the durational limits of the act was 

warranted. Clifford appealed from this judgment to the Appeals 

Court, and we transferred the case to this court on our own 

motion.

We affirm the judge's denial of relief but on the ground 

that Clifford's complaint was filed prematurely. However, we 
3

utilize this opportunity to set forth guidance for how the 

"interests of justice" standard of § 49 (b) should be applied 

when determining whether deviating beyond the durational limits 

of the act is warranted.

Background. Clifford and Jacquelyn married in 

Massachusetts in June, 1989. The parties were divorced in

November, 2002. Their separation agreement merged into the 

divorce judgment, except for the division of property 

provisions. According to one of the merged portions, Clifford 

was to pay Jacquelyn $1,800 per month in alimony, subject to 

termination "upon the earliest to occur of [Clifford's] death, 

[Jacquelyn's] death, [Jacquelyn's] remarriage or July 30, 2026."

The unmerged portion of the separation agreement and the divorce 

judgment gave Jacquelyn the former marital home and required

Clifford to pay for her health insurance.

On August 26, 2013, Clifford filed a complaint for 

modification, requesting that the divorce judgment be modified 

in several ways: to allow Clifford to cease paying for 

Jacquelyn's health insurance; to order Jacquelyn to refinance 

and remove Clifford's name from the mortgage on the former 

marital home; and to terminate alimony payments. Clifford 

asserted that changed circumstances warranted such modification.

Specifically, he claimed that the cost of health insurance had 

more than doubled since the time of divorce, his ability to 
4

secure credit for his business had been harmed by Jacquelyn's 

refusal to refinance the mortgage, and the durational limits of 

the act called for the termination of alimony payments based on 

the length of the parties' marriage.

Following a pretrial conference in May, 2014, the judge

issued temporary orders, ruling that there were no remaining 

issues relating to the health insurance or mortgage, and 

requested that the parties submit briefs and an agreed statement 

of facts as to the alimony issue. After reviewing the materials 

submitted by the parties, the judge issued a "modification

judgment" and memorandum of decision denying termination of 

alimony payments.

The judge found, and the parties do not contest, that the 

parties' marriage lasted 143.97 months (approximately twelve 

years) and that based upon the act's durational limits,

Clifford's alimony payments presumptively should have ended

after 100.78 months, or on April 23, 2011.2 G. L. c. 208, § 49

(b) (3). The judge noted that for divorce judgments predating 

the act arising from marriages that lasted as long as the 

Georges', uncodified § 5 of the act requires complaints for 

modification based solely on durational limits to be filed no 

earlier than March 1, 2015, which was more than one year later 

 

2 The judge measured the length of marriage from the date of 

marriage to the date of service of the divorce papers.
5

than the date that Clifford's complaint for modification was 

filed. St. 2011, c. 124, § 5 (3). Nonetheless, the judge went 

on to evaluate whether deviation from the durational limits was

warranted, stating that he was obligated to do so. The judge 

concluded that deviation was warranted because, he theorized,

Jacquelyn "bargained for" a specific alimony termination date in 

exchange for a certain division of property and, had Jacquelyn 

known that alimony would terminate before the date contained in 

the agreement, she would "likely have insisted on different 

property division terms." As mentioned, Clifford appealed from 

the judge's decision to the Appeals Court, and we transferred 

the case to this court on our own motion.

3 In his brief, 

Clifford makes clear that his appeal focuses only on the judge's 

decision that deviation from the durational limits was 

warranted, and on how such deviation issues should be analyzed.

Discussion. a. The Alimony Reform Act. The act became 

effective on March 1, 2012, and deemed all alimony awards that 

predated it to be general term alimony. St. 2011, c. 124, 

§§ 4 (b), 7. Under the act, general term alimony may be 

 

3 After the modification judgment was issued, Jacquelyn 

filed a motion for attorney's fees and costs. A motion hearing 

was held in December, 2014. In a memorandum of decision 

following the hearing, as well as in a supplemental modification 

judgment, the judge awarded her certain attorney's fees and 

costs. Although Clifford appealed from some of the award, he

stated in his brief that he is no longer appealing any issue 

involving attorney's fees. The issue is therefore waived. 

Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
6

modified in amount and duration upon a material change of 

circumstance. G. L. c. 208, § 49 (e). The act also provides 

presumptive termination dates for general term alimony 

obligations for marriages lasting fewer than twenty years.4

G. L. c. 208, § 49 (b). A judge may deviate beyond these 

termination dates if the judge makes a written finding that 

doing so is in the "interests of justice." G. L. c. 208, 

§ 49 (b).

Uncodified § 4 (b) of the act states: "Existing alimony 

awards which exceed the durational limits established in said 

[§] 49 of said [G. L. c.] 208 shall be modified upon a complaint 

for modification without additional material change of 

 

4 The presumptive termination dates -- which are expressed 

as percentages of the length of the marriage -- for payment of 

general term alimony are set forth in G. L. c. 208, 

§ 49 (b) (1)-(4):

"(1) If the length of the marriage is [five] years or less, 

general term alimony shall continue for not longer than 

one-half the number of months of the marriage.

"(2) If the length of the marriage is [ten] years or less, 

but more than [five] years, general term alimony shall 

continue for not longer than [sixty] per cent of the number 

of months of the marriage.

"(3) If the length of the marriage is [fifteen] years or 

less, but more than [ten] years, general term alimony shall 

continue for not longer than [seventy] per cent of the 

number of months of the marriage.

"(4) If the length of the marriage is [twenty] years or 

less, but more than [fifteen] years, general term alimony 

shall continue for not longer than [eighty] per cent of the 

number of months of the marriage."
7

circumstance, unless the court finds that deviation from the 

durational limits is warranted." St. 2011, c. 124, § 4 (b). 

Thus, the durational limits are retroactive and apply to alimony 

awards that predate the act. Rodman v. Rodman, 470 Mass. 539, 

544 (2015); Chin v. Merriot, 470 Mass. 527, 536 (2015); Holmes

v. Holmes, 467 Mass. 653, 661 n.9 (2014). Pursuant to 

uncodified § 4, a payor spouse with an alimony obligation that 

existed before March 1, 2012, and that exceeds the act's 

durational limits, need only file a complaint for modification 

to demonstrate a material change in circumstances. St. 2011, 

c. 124, § 4 (b). Nonetheless, a judge may order alimony to 

continue beyond the durational limit if the judge finds that 

deviation is "required in the interests of justice." Id.

Uncodified § 5 provides a phase-in period for when 

complaints for modification of existing alimony awards may be 

filed by payor spouses "solely because the existing alimony 

judgment exceeds the durational limits." St. 2011, c. 124, § 5.5

This phase-in period was created to avoid a rush to the 

 

5 Statute 2011, c. 124, § 5 provides: "Any complaint for 

modification filed by a payor under [§] 4 of this act solely 

because the existing alimony judgment exceeds the durational 

limits of [G. L. c. 208, § 49,] may only be filed under the 

following time limits:

". . .

"(3) Payors who were married to the alimony recipient 

[fifteen] years or less, but more than [ten] years, may 

file a modification action on or after March 1, 2015."
8

courthouse by payor spouses upon passage of the act. See Doktor

v. Doktor, 470 Mass. 547, 551 n.6 (2015). For marriages lasting 

fewer than fifteen years but more than ten years -- as is the 

case here -- that date is March 1, 2015. St. 2011, c. 124, 

§ 5 (3).

As Clifford admits, his complaint for modification was 

filed before the permissible filing date set out in uncodified 

§ 5 of the act. In light of the premature filing, dismissal of 

Clifford's complaint was appropriate, and we affirm the judge's

denial of relief on that ground. See Holmes, 467 Mass. at 661 

n.9.6

b. Deviation standard. We now set forth guidelines for 

how a judge of the Probate and Family Court should apply the 

G. L. c. 208, § 49 (b) "interests of justice" standard. The 

identity of the moving party will depend on whether the marriage 

ended before the act's effective date. For marriages that ended 

before that date, the payor spouse will be the moving party, and 

for marriages that ended after that date, the recipient spouse 

 

6 Clifford brought two additional claims with his complaint 

for alimony modification. The judge ruled that these claims 

were frivolous and without merit, and they were no longer part 

of the case when he considered and decided Clifford's request to 

terminate the alimony obligation. Still, the judge, recognizing 

our statement in Holmes v. Holmes, 467 Mass. 653, 661 n.9 

(2014), that claims not filed "solely because" the existing 

alimony judgment exceeded the act's durational limits may be 

considered by a probate judge, went on to address the issue 

whether deviation was warranted. See St. 2011, c. 124, § 5.
9

will be the moving party. See G. L. c. 208, § 53 (e) ("In 

setting an initial alimony order, or in modifying an existing 

order, the court may deviate from duration and amount limits for 

general term alimony . . . upon written findings that deviation 

is necessary."); St. 2011, c. 124, § 4 (b) (durational limits 

apply to alimony awards that predate act).

In either case, we conclude that when disputes of fact 

arise the judge must make written findings based on evidence to 

determine whether the "interests of justice" require alimony 

payments to continue beyond the durational limits of the act. 

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." G. L. c. 208, § 49 (b). See St. 2011, c. 124, § 4 

(existing alimony award exceeding durational limits is material 

change of circumstance). Further, a judge should evaluate the 

circumstances of the parties in the here and now; that is, as 

they exist at the time the deviation is sought, rather than the 

situation as it existed at the time of divorce. See Schuler v. 

Schuler, 382 Mass. 366, 377-378 (1981) (affirming denial of 

alimony modification where judge found "at the time of the 

modification hearing [payor spouse] had the ability to make the 

payments"); Katz v. Katz, 55 Mass. App. Ct. 472, 483 (2002) 

(reversing judge's decision to terminate alimony where payor 
10

spouse had income-generating assets "at the time of the hearing 

on the complaint for modification"). If relevant factors that 

existed at the time of the divorce persist when the complaint 

for modification is filed, a judge may properly consider them.

For example, if at the time of divorce a spouse was disabled and 

that disability was taken into consideration in setting the 

initial alimony award, and if that disability persists when the 

payor spouse files a complaint for modification, the judge may 

properly consider the impact the disability continues to have on 

the recipient spouse in determining whether deviation beyond the 

act's durational limits is "required in the interests of 

justice." G. L. c. 208, § 49 (b).

The importance of this temporal focus is shown in the 

instant case. The judge concluded that had Jacquelyn known that 

her alimony would terminate prior to the date in the merged 

portion of the separation agreement, she would likely have 

"bargained for" a different division of property. This analysis 

was flawed in two respects. First, there was nothing in the 

agreed statement of facts to support this finding. Second, this 

logic might well prevent nearly all payor spouses with alimony 

obligations predating the act from ever gaining the benefit of 

the act's durational limits, because recipient spouses could 

argue that, had they known that their alimony payments would be 

affected by the act, they would have negotiated their separation 
11

agreement differently. This is in direct contravention of the 

Legislature's intent that the durational limits apply to 

preexisting alimony awards. See St. 2011, c. 124, § 4 (b);

Rodman, 470 Mass. at 544; Chin, 470 Mass. at 536; Holmes, 467 

Mass. at 661 n.9.

"Although a 'judge has broad discretion when awarding 

alimony under the [act],' . . . the judge must consider all 

relevant, statutorily specified factors . . . ." Duff-Kareores

v. Kareores, 474 Mass. 528, 535 (2016), quoting Zaleski v. 

Zaleski, 469 Mass. 230, 235 (2014). Here, the appropriate 

statutory factors to be considered are set forth in G. L. 

c. 208, § 53 (e):

"(1) advanced age; chronic illness; or unusual health

circumstances of either party; (2) tax considerations 

applicable to the parties; (3) whether the payor spouse is 

providing health insurance and the cost of health insurance 

for the recipient spouse; (4) whether the payor spouse has 

been ordered to secure life insurance for the benefit of 

the recipient spouse and the cost of such insurance; (5) 

sources and amounts of unearned income, including capital 

gains, interest and dividends, annuity and investment 

income from assets that were not allocated in the 

parties['] divorce; (6) significant premarital cohabitation 

that included economic partnership or marital separation of 

significant duration, each of which the court may consider 

in determining the length of the marriage; (7) a party's 

inability to provide for that party's own support by reason 

of physical or mental abuse by the payor; (8) a party's 

inability to provide for that party's own support by reason 

of that party's deficiency of property, maintenance or 

employment opportunity; and (9) upon written findings, any 

other factor that the court deems relevant and material."
12

Conclusion. We affirm the denial of relief to the 

plaintiff on the grounds that his complaint was premature. See 

G. L. c. 208, § 49; St. 2011, c. 124, § 5. The plaintiff may 

refile his complaint for modification, and it should be 

considered under the standard articulated today.

7

Judgment affirmed.

 

7 We deny Jacquelyn's request for appellate attorney's fees,

as she has not provided a legal basis for such an award. See 

Fabre v. Walton, 441 Mass. 9, 10-11 (2004).