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.