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Saturday, February 13, 2010

It's a Trap!: The Massachusetts Alimony Debate

UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.

Because of my involvement in the creation of the Divorce Spousal Support Calculator I am often asked if I think alimony in Massachusetts is fair.

Of course, this is a loaded question, and so my typical answer is that nothing in the law is "fair", it is simply our best efforts to be "fair and equitable." In creating the Calculator, however, I have already expressed a desire for greater consistency. This in itself is an admission that I would like to see improvement in the current statute.

Many others have expressed there displeasure with the current statute as well. As a result there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the statute. But how this debate is now framed is a trap. There is no right answer because the choices are both inadequate.

The Boston Business Journal (Dueling Alimony Bills Raise Hackles in Legal Circles), NECN, WBZ, the MetroWest Daily News, and even The Wall Street Journal have all covered the debate with varying degrees of impartiality. Many of these stories concentrate on two bills that have been presented in the Massachusetts Legislature. The House Bill No. 1785 would add numerous changes to the current statute, including limitations on duration, sunset provisions reducing alimony after five years, limitations on increases in alimony to specific circumstances, termination of alimony upon retirement of the payor or cohabitation of the recipient, and limitations on the courts' ability to consider cohabitation of the payor. The Senate Bill No. 1616 would add only the words "and duration" to the language specifying the powers of the courts to determine alimony.

The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. Although it is my experience that most Judges are fair in their rulings, the lack of firm direction in the statute forces many cases to trial that might otherwise have been settled. Much of the criticism of the Senate Bill centers around this issue of protracted and expensive litigation. Indeed, the proponent of the Senate Bill, Newton Senator, Cynthia Creem, has been attacked as having a conflict of interest because she practices family law, and could potentially benefit from increased litigation costs.

Unfortunately, this is the type of debate you receive when only two solutions are presented to a very complicated and diverse set of problems. There are multiple criticisms of the current statute. They include the fact that the statute doesn't limit the duration of alimony, encourages litigation of the issue of alimony by its vagueness, and that it fails to address numerous scenarios in which unfair results may occur (such as forcing a payor to continue support after retirement age or when the recipient is cohabitating).

The Senate Bill admittedly only addresses one of these issues, the issue of duration. But to say that it further encourages litigation is a mistake. The current state of the law in Massachusetts is that Judges to do not have the authority to limit the duration of alimony in a Judgment. This forces further litigation because a Modification action is necessary to end alimony in cases where temporary alimony was appropriate or retirement has changed the circumstances. Adding the duration language suggested in the Senate bill could avoid future litigation, by allowing Judge's to address this issue in the original order.

In contrast, the House Bill attempts to address many of these issues at once, but takes a very specific position with respect to each issue. Since many of the proponents of this bill are alimony payors themselves (such as those quoted in another BBJ article) their conflict of interest is obvious (as opposed to the supposed conflict of interest of Senator Creem).

There are multiple ways other than the changes described by House Bill No. 1785 that we could improve the law in Massachusetts without moving it too far in favor of the potential payors. For instance, Maine has a statute that defines different types of alimony, allowing a Judge to order transitional or reimbursement support in cases where long-term support may not be appropriate.

Similarly, the House Bill's failure to address the creation of a formula (or at least a maximum), as recommended by the AAML, will leave us with the same problems of ongoing litigation. The House Bill might solve the problems of some of its proponents, but it is not going to reduce the litigation of most alimony cases which will still require the input of a Judge to decide the ultimate amount of spousal support payments.

This is why it's a trap to ask any experienced practitioner to choose between Option A (the House Bill) and Option B (the Senate Bill).

Whether or not changes to the statute favor the recipient or the payor, true reform of the alimony statute should provide consistency. Therefore, the most fair way to amend the statute would be to include both a durational component and a formula for calculating the appropriate amount of alimony, while still allowing Judges to vary from the presumption if they make findings that a specific factor (as suggested by the AAML) warrants such a deviation. This is the only way to reduce litigation and provide consistency.

While everyone may not consider a formula "fair", it will at least have the advantage of treating everyone the same, and the first step towards fairness is consistency.

For more information about the various formulas in use in other states (and by some Massachusetts Judges) view the Divorce Spousal Support Calculator or our accompanying Article.

9 comments:

  1. Many of the 19th century people who wanted to end slavery in the US were themselves slaves (Fredrick Douglas, etc). Many of the most active campaigners against landmines around the world are themselves landmine victims.

    Does this factor delegitimize their participation in the reform process?

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  2. Justin L. Kelsey, Esq.February 27, 2010 at 12:37 AM

    Although comparing alimony payors to slaves or landmine victims is an extreme analogy, you have effectively isolated one of the points of our blog post. Attacking the Senate bill because it was presented by a family law practitioner is just as senseless as excluding alimony payors from the debate. Both divorce attorneys and divorcing spouses (whether potential alimony recipients or payors) have valuable input to provide regarding the problems that arise in the current state of the law. Both groups also have personal motivations that might affect their approach to this debate.

    Either way, the participation of more citizens in this debate will hopefully result in improvement to the current law.

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  3. There is never one simple solution for a complex problem, but in order to even attempt to craft a solution one needs to identify the many intracacies within the larger whole. While no solution will ever be perfect, leaving alimony the way it is, or even adressing only one issue (duration S 1616) falls way short of solving the alimony crisis in MA. HR 1785, I believe, attempts to adress many aspects of the alimony issue in a way which is fair and equitable in a modern society. It assumes rightly, based on current statistics, that women can and will acheive employment sucess when entering the market place. The way the new law would be stated, they would be given the opportunity to get the education they need to go out into the marketplace and become employed. The new law would eliminate the archaic concept that an individual (usually women)should have the right to live the same lifestyler (forever) that they did pre divorce. IT would eliminate perpetual financial enslavement (which can be for some a cruel and unusual punishment) and by limiting duration of alimony reduce the likelihood that an individual who cannot pay alimony would have to go to debtors prison for contempt of court. Seen in this light, current alimony laws can be unconstitutional. HR 1785 would improve this situation. HR 1785 would allow a true divorce to be obtained and end the "partnership." The current situation perpetuates the partnership and promotes acrimony which can interfere with child rearing. In case you haven't heard, judicial discretion is or at least can be a big part of the problem. While some judges are fair, others clearly view alimony as a penalty for getting divorced and breaking the marriage vows, when in fcat the intent should be that alimony is rehabilitative. ITS NOT, when many alimony recipients choose not to work even though they are perfectly capable of doing so. 97% of the time it is the man who is penalized. It is unusual in MA for a judge to modify downward an alimony award and also not unusual to force the second wife to pay alimony if the husband can't (eg Pierce v Pierce). We need reform and we need it now. As a matrimonial lawyer, even if HR 1785 passes, there will still be p[lenty left for you to do, but because the law as written does not adress every possible compex combination of issues, does not mean this law should not be passed. It adresses these issues in a fair and honest way and still leaves room for litigation when there is a need to.

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  4. Justin L. Kelsey, Esq.March 9, 2010 at 12:58 PM

    Since the third comment above makes very specific arguments in favor of the House Bill HR 1785, I think it could be useful to clarify my opinions relating to that bill's specific provisions.

    My major objection to the passage of HR 1785 is that, in my opinion, it will not reduce litigation.

    One reason that it will not reduce litigation is that the bill is poorly drafted, i.e. it will not result in a clearly worded statute. Although it begins by adding the language "the court shall consider the following circumstances", the new subparts are for the most part not circumstances but limitations for the court. The first appeals issue I immediately spot is whether or not the subparts that list limitations are mandatory or just "circumstances" to be considered.

    For example, paragraph (e) states that the "The sole and exclusive reason or cause warranting an increase in the amount of alimony shall
    be the percentage rise, if any, during the prior calendar year in the Consumer Product Index,
    as published by the United States Department of Labor, such increase shall commence at the
    beginning of the calendar year and shall equal such rise provided that the earned income of
    the supporting party has increased during such prior calendar year by more than three times
    such percentage increase in such Index."

    This is not a circumstance. It is a direction to the Court. Yet it is listed along with the other "circumstances" such as the age and health of the parties. Does this mean that a health issue could override this paragraph? It's not clear from the way the statute is structured.

    Although this might seem like nitpicking, that is exactly the type of in depth review this statute will receive both by lawyers and judges. The fact that it is structured in a way that makes it unclear how a Judge should take into account subparts that in fact are not circumstances, but directions, is only one problem that could arise.

    Assuming that this drafting issue was addressed and the subparts that are not circumstances but limitations were correctly labeled, many of them would still result in more or the same amount of litigation. Although the current circumstances the court can review are broad at least we have an idea, due to case law and experience, what they mean. Adding new circumstances with complicated definitions will result in significant litigation until we figure out how the court is going to interpret those standards. For example subpart (a) adds language relating to "unearned income", "earning capacity", and "the time and expense of employment counseling and training", all of which will have to be interpreted by the Court and applied to the specific facts of each case.

    Adding this language may specify what the Court should look at, and how the court should maybe limit alimony, but it by no means reduces the number of facts the court must look at. In fact, requiring evidence on these factors likely requires a vocational expert in cases that might not have otherwise needed one. This will increase the cost of litigation.

    (continued in the next Comment)

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  5. Justin L. Kelsey, Esq.March 9, 2010 at 12:58 PM

    (continued from above)

    Even subpart f, which is specific as to its intent, and clear (though still misplaced in structure) creates problems. Subpart f states that all alimony orders end upon retirement age, but refers to a Federal social security statue for the definition of retirement age. This statue varies "retirement age" by increasing it in the coming years and varying it based on whether or not any previous spouses have died. Although these factors make sense for changes to social security, why should they affect alimony duration? This is especially confusing if the parties are not social security recipients.

    If the goal is to have alimony end upon a certain age than it should be defined in this statute, not with reference to an unrelated federal statute.

    Of course, this is also the type of subpart, which I was referring to in the original blog, that shows HR 1785 is intended to help a specific group. A drop dead ending of alimony at retirement age without any concern for the circumstances of the recipient is a very one-sided solution that doesn't take into account individual circumstances at all. Just because the payor should have a right to retire doesn't mean the alimony should be $0. What if the recipient has no social security and the payor has significant retirement assets? Do we expect a recipient (who is also likely retirement age) to get a job now? What about recipients whose divorce settlements or Judgments were crafted under a statute that didn't have this provision? Those property divisions didn't given consideration to a potentially retirement-age recipient who could no longer receive alimony.

    This section gives no consideration to payors for whom retirement age is really an arbitrary date, such as professionals like the Husband in Pierce. In that case, there was no evidence that he "couldn't" provide alimony so his new Wife had to. Instead the evidence showed he had chosen to stop working. For anyone who has this misunderstanding of the Pierce case, I suggest that you read the actual case, discussed in another blog post on this site. I agree that the statute should provide some consideration for voluntary retirement at a certain age, but there are many cases where a drop-dead date is inappropriate.

    Finally, I find it necessary to reiterate that I do think reform is necessary. But to argue that HR 1785 or S 1616 are the only options is irresponsible. The Massachusetts citizens would be much better off with a well drafted statute that actually stands a chance of reducing litigation, and takes into consideration the complicated factors involved in changing this law. The AAML recommendations linked in the original blog post would be a much better solution. Even if the AAML recommendations were tailored to include shorter durations or a smaller formula, they would still provide the appropriate balance between statutory guidance to reduce litigation and deviation in unusual circumstances.

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  6. This statue varies "retirement age" by increasing it in the coming years and varying it based on whether or not any previous spouses have died.The Massachusetts citizens would be much better off with a well drafted statute that actually stands a chance of reducing litigation, and takes into consideration the complicated factors involved in changing this law.


    Best Attorney

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  7. I find the blog comments both disturbing and entertaining. These 'complications' such as definition of retirement age for ending alimony payments is a case in point. YES there should be a zero alimony obligation when someone retires. The reason is goes to ZERO is so a person can get on with life. If you had a 7 year marriage that ended 20 years earlier the alimony should go to ZERO. The recipient should get on with their life and realise that personal responsibiliyt is that they GET A JOB and take care of themselves. If they did not work for the past 20 years because they were living off the alimony than TOO BAD. Get out there and take care of yourself. The alimony payor has a right to an end to the payment obligation. A health, college educated person needs to get out there working. I know of MANY healthy, college educated ex-spouses who INTENTIONALLY DO NOT WORK to keep the gravey train going.

    Look at this quote from above: "Just because the payor should have a right to retire doesn't mean the alimony should be $0. What if the recipient has no social security and the payor has significant retirement assets? Do we expect a recipient (who is also likely retirement age) to get a job now?"

    My reply is YES THEY NEED TO GET A JOB. MANY of these receipients have avoided working as advised by their attorneys just to make this argument to keep the alimony flowing. THE QUOTE ABOVE IS A PERFECT EXAMPLE OF WHY THE SYSTEM NEEDS TO BE FIXED. NOW. STOP WITH THE PERVERSE ARGUMENTS THAT THE SYSTEM NEEDS TO ALLOW FOR SPECIAL CIRCUMSTANCES OF PEOPLE WHO HAVE NOT WORKED FOR YEARS. TIME TO END THE VACATION. LETS GO>>>

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  8. If this change in the alimony law is passed will it be retroactive?

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  9. No, the proposed Alimony Bill will not make changes to current alimony orders retroactively. It does allow for parties who are currently paying alimony to ask for modification under the new law, if there Agreement or Judgment allows for modification and subject to certain time restrictions.

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