Monday, March 12, 2012

Reaction to Editorial claiming "New alimony law is bad for women"

Wendy Murphy, an adjunct professor at New England School of Law and a former prosecutor, wrote an editorial at CNN.com entitled New alimony law is bad for women.  The article so poorly misstates what the law was in Massachusetts before The Alimony Reform Act of 2011 (which took effect on March 1, 2012), that I felt compelled to respond:

New Law does not Eliminate Lifetime Alimony in all Cases.

Ms. Murphy argues that the the new alimony law is unfair to women who are overwhelmingly the majority of alimony recipients because it limits the duration of alimony orders based on a formula.  She claims that the formula is arbitrary and that alimony "won't last a lifetime."  She admits that this is an oversimplification of the law, but it goes farther than that.  This is a misstatement of the new act because there are circumstances in which Judges can still order lifetime alimony, and in any marriage over 20 years the alimony order would be indefinite.

Under Old Law, Lifetime Alimony was the Default, not "rare".

Ms. Murphy correctly points out that the outcry which was partly responsible for passing of the new law surrounded primarily men (and/or their second wives) who were upset about lifetime alimony awards.  However, she claims that under the old law "Lifetime alimony, in such circumstances, is terribly unfair. But it's also rare, especially these days", and that "Lifetime alimony has been a problem, but the system mostly self-corrected when judges stopped routinely ordering it."   This is a gross misstatement of the previous law.

Under the old alimony law lifetime alimony was the only option for judges to order.  Although the orders were technically indefinite because Judges were not allowed to order duration limits, an indefinite endpoint meant that orders were for a lifetime unless there was a future change in circumstances.  This was the same for marriages of 5 years and 20 years.  Whether you look at the law from the perspective of women or men, treating marriages of 5 years and 20 years the same is unfair.

Unknown Effect of new Law on Stay-At-Home Mothers

The other inaccuracy in this editorial, is that Ms. Murphy assumes she knows how this new law will be enforced by Judges. The statutory changes include the ability for judges to take alimony orders into account when making property divisions. So a financially disadvantaged spouse (such as a stay-at-home mom) who has given up job prospects for the marriage might have limited alimony, but could also argue for a greater share of the assets. We don't know yet how this brand-new law will play out and whether or not it will be unfair to women or men, or neither, because we don't yet know how the Judges and the Appeals Court will interpret and enforce the various provisions as a whole.

Conclusion: Some Perspective is Important

While Ms. Murphy's effort to criticize the new law goes too far because of her failure to understand the old law, it is important to recognize that her conclusion might still be correct.  Because we don't yet know how the courts will interpret this new law, we don't know if it will have a greater negative impact on women, as she assumes.  If it does have a such a strong negative impact then perhaps some changes might be needed again in the future.

The history of alimony and divorce is traditionally unfavorable to women.  Until 1870 women couldn't own property in most circumstances and even after that alimony was typically used as a property substitute, and usually only awarded in cases where wrongdoing by the husband was proven.  For women who were unable to earn the same way as men, and much more likely to be stay-at-home mothers, this was truly unfair and unreasonable.  In Massachusetts, a more specific law requiring an alimony evaluation based on need and ability wasn't entered until 1974 along with no-fault divorce.  This law finally recognized the realities of a divorce, and the needs of the disadvantaged spouse.

But a lot has changed since 1974 and it is the job of the law to evolve with society.  The Alimony Reform Act of 2011 was a reaction to an unfair situation created by the blanket lifetime alimony ordered under the old law.  To ignore the fact that the old law was archaic and downplay lifetime alimony orders is just as ridiculous as suggesting that women still shouldn't be able to own property.

On a personal note:

As a Father, I recognize that even though my wife went back to work after both of our children were born, the time she lost for maternity leave and the time she misses work when the children are sick negatively affects her career path.  Having children hasn't had the same impact on my career being self-employed. I don't know if there's a fair or perfect way to compensate her for that other than appreciating her and telling her that I appreciate her. This article looks only at the narrow idea of compensating mothers for this loss with alimony orders in a divorce.

The reality is that society as a whole could do a better job of recognizing the value of motherhood and compensate women better for this service they provide to society, instead of only giving them an advantage if they get divorced.  Since 1974, I think American society has gotten better at recognizing the value of motherhood and women in society, and the greater likelihood that both parents work is something the law must evolve to recognize.  Because of that, I think The Alimony Reform Act of 2011 is a step in the right direction and contrary to Ms. Murphy I think we should keep moving forward instead of looking back.

Thanks to Amanda Glinski for bringing this editorial to our attention.

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