Monday, October 5, 2009

Alimony Reform and the Business of Divorce

The Boston Business Journal continues to cover the controversy over the competing Massachusetts alimony bills, and in Friday's article by Lisa van der Pool, Dueling alimony bills raise hackles in legal circles, the focus was on the question of whether Senator Cynthia Creem, chair of the Senate's Judiciary Committee, has a "conflict of interest" on account of her sponsorship of the alimony reform bill being heard by her committee, because she is also practicing divorce law in Boston.

Many in the Massachusetts Alimony Reform organization have voiced their belief that she has a conflict of interest. In the article, I was among the quoted legal observers who fail to find any conflict of interest here. And that is so even though I do not support Cynthia Creem's Senate bill, but support instead the much more comprehensive reforms of the House bill. As often happens in the world of family law litigants, logic and reason have become victims to emotion. And once again, I have gone on record to call it like I see it, only to insure I will probably please no one.

It is hardly shocking to find lawyers as legislators, and it is quite normal for them to take up, and draft, legislation within their own areas of expertise. Divorce lawyers such as Sen. Creem regularly take cases involving clients on both sides of alimony disputes, and will inevitably have clients who benefit, and others who will not, from any change to the law. That is true for her, and that is also true for me. We simply have different opinions as to what the law should be.

The argument of those who think they see a "conflict of interest" (although they mostly do not really understand the concept) goes something like this: Divorce and family law practices, or at least certain practices such as that of Senator Creem, benefit from preserving the status quo, and/or encouraging more, rather than less, litigation.

Any real alimony reform - the argument goes - such as that which would result from enactment of the House bill, would inevitably lead to less litigation, while the enactment of the Senate bill would either fail to reduce litigation, or might even increase it, as the Senate bill would only add durational language, but without any real guidance, thus leaving extremely vague the legal standard for determining alimony awards, and thus continuing to confer upon judges overly broad discretion that would lead to more disputes and more litigation. Lawyers in general, and supposedly rich divorce lawyers in particular, would thus continue to reap huge financial benefits from this vague alimony standard.

But do you know what? The only parts of that argument which are not obviously specious are at their very best merely speculative, and the available evidence might more readily support a quite contrary thesis: that is, that our very vague, quite unpredictable, and often unreasonably high and long, alimony obligations may be partly responsible for the fact that we have had a declining rate of marriage in recent years (interestingly, this particular point has indeed been made by the Alimony Reform Movement itself), and also for the fact that we have a very low rate of divorce relative to other states.

Indeed, the only studies of which I am aware point out that New England in general, and Massachusetts in particular, have the lowest divorce rates in the nation. (See the end of my earlier post on divorce and baseball for links on this issue).

Could it be that draconian, unpredictable, seemingly dreadful divorce laws have contributed to preserving many marriages? Here, I'm reminded of the male joke about not getting divorced because "it's cheaper to keep her." Also might it be possible that these supposedly bad laws prevent many who would otherwise eventually divorce from marrying in the first place? And is it so bad to have laws that make marriage a serious commitment, with very serious consequences? Indeed, that is how marriage used to be in this country before the advent of no-fault divorce. Funny, but some of the conservative, male critics of the current family law system are also the same ones who pine for those more traditional times.

Let me be clear. I believe the current alimony law in Massachusetts is in need of reform, because it too often leads to absurdly unfair results, as it fails to compel judges to limit alimony in the way most people today believe it should be limited, and in the way current economic and social realities suggest it should be limited. However, I am not at all sure that either bill under consideration would help or hurt lawyers in the modestly paid field of family law.

Many of the big problems with current alimony law in Massachusetts relate to the higher economic class of divorcing couples, who are more likely to be caught up in fights with opponents who have considerable assets and earnings, and who are therefore able to pursue "money is no object" battles in court. When the law is too vague, as I do believe it is, there is more at stake in such disputes, and wealthier individuals often believe, however wrongly, that they have no choice but to hire the most expensive, high-overhead law firms to fight spouses who have hired other expensive, high-overhead law firms, all to determine how much will be paid, and for how long, in spousal support.

If I had to guess, I would predict that the passing of the House bill, or any such extensive reform bill limiting alimony, might eventually lead people to marry more often, and earlier, and lead more already married people to get out of marriage when things go wrong; less cumbersome alimony obligations would be less of an impediment both to divorce and to marriage in the first place.

I imagine that with more reasonable alimony laws, we could see higher marriage rates and higher divorce rates, like those that currently exist for example in the state of Georgia, and other "red" states, where it is easier and less costly for the higher-earning spouse to get divorced (and by "costly" here I am referring to the total economic costs in a broad sense, not simply the narrow costs of paying legal fees). Perhaps only the nature, but not the size, of family law practice would thus change, as divorce lawyers would have more clients, but would also spend less time, and bill less, on each individual case; furthermore, high income and high conflict cases would likely account for a smaller percentage of client caseloads.

But all of this is speculation. Would the whole family law business shrink or grow with alimony reform? Who knows? Even if we could answer this, it is really the wrong question.

We really should be debating what the appropriate spousal support obligations of divorcing parties should be, period, rather than making speculative arguments about how different laws might affect a small sector of the legal services industry. Our alimony law should reflect what our community believes those obligations should be, and should reflect current economic and social realities. That is what is important.

The reason this misguided "conflict of interest" argument has gotten any traction is that angry individuals hate lawyers and judges, and not just the flawed law and legal system of which they are a part, and these guys are venting (for more on this, see my last post on this blog). It has all become personal.

By the way, if you're not already exhausted after reading this ridiculously long blog, you can find more level-headed, interesting, and even funny, comments on the issue of alimony reform in Massachusetts at Stephen McDonough's blog.

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