Massachusetts Alimony: Time for Reform?

In yesterday's Boston Globe appeared an op-ed article by novelist Elizabeth Benedict, critical of the Massachusetts alimony law and application of that law by courts in this state: Elizabeth Benedict: Boston Globe Op-Ed: The chilling effect of state's divorce laws. I actually know Elizabeth Benedict, and as one of the lawyers she talked to before writing that article, I must say that I welcome her criticism, even though I believe she may be, as I have told her, exaggerating the extent of the problem she sees.

Her problem is mostly with lifetime alimony awards and with what she rightly sees as the inconsistent, unfair application of alimony law. Of course, I have no doubt that the cases she discusses are real, and it only takes one bad experience in family court for any one person to be turned off and disillusioned with the whole process.

The main point that should be taken away from her article, in my opinion, is that the law on alimony is so vague as to permit a huge divergence of results, from one case to another. I would add that these results often depend on factors that should not be important and determinative: they are factors primarily related to the quality and experience of the judge, rather than factors actually relating to the facts of the individual cases.

In my experience as an attorney, I have been able to end lifetime alimony awards, as lawyer for men in each case, in every case where it was justified and where my clients and I tried to do so. However, in those cases, my male clients did not even come to me to try to eliminate the alimony until their children were emancipated and their exwives were working fulltime and earning as much as, or more than, they were. In other words, we had very strong cases to end alimony. And yet, although the cases did not require trial, they were at first hotly litigated cases, and they were hardly the walks in the park that they should have been.

I am happy to see Elizabeth Benedict join other disgruntled second wives and girlfriends in trying to help men to right this wrong in Massachusetts family law, particularly by supporting the enactment of HR 1567, a relatively unambitious, but sensible bill that, as Benedict notes in her piece, has been given an unceremonious legislative death as the bill was quietly committed to further "study."

We have long needed better guidance and clearer laws on alimony - and in the related area of child support as well, I hasten to add - that cover the needs of today's divorcing and separating parents and spouses. The child support guidelines have numerous flaws and do not cover those with combined incomes of $135,000 or more, exactly the group of people, interestingly enough, who are most likely to hire lawyers for their court cases. Such a situation leads intelligent people like Elizabeth Benedict to understandable cynicism about the legal process, and about lawyers themselves. And so Elizabeth Benedict states as follows:

The Massachusetts and Boston Bar Associations have created a task force to study problems stemming from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They may eventually support new guidelines for judges, not new legislation, which would clarify and simplify. They prefer ambiguity and case law, which produce more billable hours.

The crux of the problem is there is no agreement on a formula, or a uniform set of guidelines even, for alimony, and the law of alimony is essentially the same long list of statutory factors that are supposed to be taken into account in determining the division of assets upon divorce (M.G.L. ch.208, section 34). See the Massachusetts divorce statute here.

One former judge, Judge Ginsburg, formerly of the Middlesex Division of the Probate and Family Court, who in fact created his own alimony formula (called "the Ginsburg formula") which he, and some others, have used on an informal basis, especially back when he was still a judge, wrote an article, back in 1997, which is surprisingly still very relevant today: "The Place of Alimony in the Scheme of Things," Edward M. Ginsburg, Massachusetts Family Law Journal, Vol 14, No. 5 (January 1997). Sorry, but I can't find an online link to that article. In that article, then-Judge Ginsburg pointed out that there is precious little in the way of guidance in how to deal with different kinds of cases (short-term, mid-term, long-term marriages) and how to structure awards, both in terms of amount and duration. Well, not much has changed in the past eleven years, in statutory or case law, since Judge Ginsburg wrote his article, to alter this basic reality.

And what little new case law we do have has not remedied this problem. As pointed out by Massachusetts Attorney Peter Gossels in this Massachusetts Lawyers weekly article from February 5, 2007, the law as it still stands permits "predator spouses" to enter into short-term, childless marriages, and extract huge sums of money through alimony. See the Gossels article, both for another extreme example of how the vague alimony law can lead to an unfair result, and for a great discussion about some of the problems and limitations created by the case law on alimony.

However, as a practicing lawyer, I do believe there has been a positive change - despite the continuing existence of some rather unfair case results - in the way most judges are applying the broad, vague law. I believe judges over the past ten years have become far less likely to award alimony in cases where alimony is undeserved, they have been increasingly likely to expect former wives to work, or to go back to work, and they have become increasingly likely to apply the gender-neutral laws in a gender-neutral way. This positive change in the way that law has been applied, in fact, is one advantage, perhaps, of the law being as vague as it is. But all is not as it should be. Not yet. And I do believe there should be better guidance, and it should be statutory.

As long as judges have such wide discretion, with these vague laws in effect and in the absence of clear guidelines for different types of cases, judges will continue to be free to consider all the relevant statutory factors on a case by case basis. The question of whether we want the legislature to improve the law of alimony will then come down to whether we want to trust each individual judge to make the right decision when each one has such extremely wide discretion in making findings.

Although I trust most judges to try to do the right thing most of the time, I do believe they all need clearer laws and better guidance, for the sake of consistency and fairness.

Finally, Elizabeth Benedict's comments, both directly to me, and in this op-ed piece she wrote, give me hope for the future. I am encouraged to see such talented, intelligent, accomplished women recognizing the injustices often faced by men in family court. Benedict joins the ranks of another great writer, formerly a regular columnist at the Boston Globe, Cathy Young, about whom I have spoken favorably several times in this blog before.

Also, in this respect Benedict joins another acquaintance of mine, Iris Tanner, a cabaret singer, who long ago gave me a copy of her CD "Fresh Cut Iris" when I could not attend her appearance many years ago at Jimmy Tingle's Comedy Club, where she sang her original song Don't Get Married in Massachusetts (If You're Male).

It's a hilarious song by a woman who admitted in introducing the song on stage that she had been inspired to write it after having several boyfriends who had gone through divorce in Massachusetts. Even if you don't download the song (and you can do so - from my link above), the following sample of its lyrics should give you a laugh or two:

Matrimony may be great,
But there's a certain state,
Where a wedding's bad for your financial health,
Where if a marriage doesn't work,
The man will always be the jerk,
And lucky ladies gather in the wealth.

Where the judge's sacred duty
Is to give the wife her booty,
And do his best to drain the husband dry.
Though I know it's hard to swallow,
There are guidelines they must follow,
That will zap you if your chromosomes are Y.

If you're male,
Don't get married
In Massachusetts.
You'll only end up broke
And land in jail.
....

I should point out that, despite its women- and mother-friendly reputation and despite its sometimes-heard nickname "Planet Mommy," Massachusetts is hardly alone with this alimony problem. Other states are considering reforming their alimony laws to reflect the current economic and social realities. For a good discussion of this national trend, also mentioning the recent efforts in Massachusetts, see States Challenge Traditional Alimony, a February 15, 2008 article by Tresa Baldas in the National Law Journal.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.