Family Law Keyed to Weisberg

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Keller v. O

Citation. Keller v. O’Brien, 420 Mass. 820, 652 N.E.2d 589, 1995 Mass. LEXIS 314, 47 A.L.R.5th 855 (Mass. July 24, 1995)

Brief Fact Summary. Plaintiff brought suit requesting a modification of his alimony payments to defendant upon her remarriage.

Synopsis of Rule of Law. The Court adopts a rule whereby the recipient spouse’s remarriage does not of itself automatically terminate alimony, but is prima facie evidence requiring the court to terminate alimony absent proof of extraordinary circumstances established by the recipient spouse warranting its continuation

Facts. Plaintiff, husband, and defendant, wife, were married for 26 years prior to divorce. Plaintiff was a successful bank executive, while defendant experienced limited employability and was qualified only for minimum wage positions. After the divorce plaintiff found work as a medical assistant, earning $90 a week. Both parties remarried, with defendant’s spouse earning $28,000 per year, $7,800 of which he paid in child support to a former spouse. Plaintiff’s income had increased to more than $180,000 at the time that he requested a modification. Plaintiff claimed that defendant’s remarriage constituted a material change in circumstances.

Issue.
Should the court adopt a rule automatically terminating alimony on remarriage of the recipient spouse?

Did the probate judge err in finding that the defendant was still in need of support and that her remarriage did not constitute a material change in circumstances?

Held. The recipient spouse’s remarriage does not of itself automatically terminate alimony, but is prima facie evidence requiring the court to terminate alimony absent proof of extraordinary circumstances established by the recipient spouse warranting its continuation.
This court has held that remarriage is prima facie evidence of a material change in circumstance. The majority of States have statutes providing alimony payments automatically terminate on the recipient spouse’s remarriage. In States where legislation does not specifically address the issue, most courts have held remarriage does not automatically terminate alimony, but creates a strong presumption or prima facie case.

The new spouse assumes a duty to support on marriage. The mere fact that without alimony the defendant cannot live with her second husband as she had with her first is not a valid reason to terminate alimony.

Discussion. The Court states that the majority rule is to terminate alimony on remarriage, but determines that in some cases it would be preferable to permit alimony to continue on a showing of extraordinary circumstances.