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Divorce Arianna-Style (c. 2009) vs. Massachusetts Alimony (c. 1850)

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Thank you, Arianna, for sharing the moving details of your family vacation in Greece with us. It's rare - verging on unheard of - for divorced parents to vacation together with their kids, as you and your ex-husband are doing. Leave it to you, with your indomitable visionary spirit, to create another way - a better way - of being divorced. We know it took you both a while to arrive at it, and the path was not easy. All the more reason to express our gratitude for opening the door to this very personal journey.

Your story comes at a special moment for us, writing from Massachusetts, which is known for its progressive politics, its history of feminism and women's rights, and of course for taking the lead in legalizing gay marriage. But there's a dirty little secret about Massachusetts that's unknown to most people in the state and beyond: It's no-fault divorce laws are considered by experts to be the worst in the country - the most backward, draconian, punitive, and out of step with the way we live now. One law professor said the laws would be appropriate for the year 1850! We think it's bad enough that they remind us so much of 1950.

The good news - we're always on the lookout for a glimmer - is that the awful truth has just been revealed in a major exposé in Boston Magazine's July issue, by Kris Frieswick, "Till Death Do Us Pay." The cover of the magazine says it all: "The Worst State To Get Divorced In (You're Living in It.)"

The other good news is that a reform movement is taking shape, and 72 state legislators have signed onto a bill, HR 1785, that will bring Massachusetts law into conformity with the rest of New England - and the rest of the country.

The opposition to reform comes from divorce lawyers, who make a mint from the status quo. They're holding out the way trial lawyers did before no-fault car insurance. In that fight, it was the trial lawyers vs. the insurance companies, and the insurance companies won. In this case, it's the divorce lawyers vs. The People, and it's a helluva fight that isn't over yet. A group called Mass Alimony Reform, headed by Steve Hitner, is leading the way.

The article points to opposition from State Senator Cynthia Stone Creem, co-chair of the Judiciary Committee and, in her spare time, a downtown Boston divorce lawyer, whose job in the Senate allows her to dictate whether the legislature will ever consider updating the laws in the direction of 2009. We're kinda wondering whether Senator Creem has a conflict of interest, wearing both those hats.

The heart of problem is that the state alimony statute is vague and toothless - and the case law that's arisen to give it direction is based on the premise - true in 1850 - that women don't work, can't work, shouldn't have to work, and if they do work, they are entitled to an additional unending stream of alimony until they remarry or die, even after they receive a fair share of the marital assets. The law is gender neutral, but the fact is that 96 percent of alimony payers are men and 96 percent of recipients are women.

When a couple divorces - in a no-fault divorce - a judge typically awards hefty alimony with no end date, even to spouses who are educated, employed, highly accomplished - and even those who have received millions in marital assets or inheritance. Judges who put an expiration date on alimony are often overturned on appeal. With ongoing alimony, a divorced couple must return repeatedly to probate court whenever their circumstances change - illness, job loss, retirement - and petition for a modification up or down.

These "modifications" are costly, contentious, and keep the threat of continuing trips to divorce court a fact of life for everyone in the state - or anyone who was divorced there but moves to a different state. Quite often, men petition to have their payments lowered and even when they have lost jobs or their businesses fail, they are turned down. Men are routinely jailed for months if they cannot make alimony payments, even because of job loss. (We know of only one woman who served time for not paying alimony, compared to a half dozen men.)

No-fault divorce in Massachusetts doesn't mean the end of a marriage; it means the start of a whole new bitter relationship with your ex-spouse and your lifelong divorce lawyer. Their rates are $200 to $700 an hour.

A payer's retirement doesn't automatically lower or end alimony either. Second spouses are often forced to contribute to the ex's alimony, because the court counts "household income" when recalculating alimony during modifications. Recipients of alimony are almost never expected to work, even if they have no children and have advanced degrees and nursing, teaching, or real estate licenses. One downtown Boston divorce lawyer, a woman, says that getting a divorce for women in Massachusetts is like winning the lottery. A woman who walks out of a marriage because she's tired of it is virtually guaranteed a lifetime sinecure. And so are the lawyers she and her ex must keep hiring for a lifetime of return trips to court.

The situation in Massachusetts is so extreme that most people do not believe it until they experience it themselves during divorce or read "The Shame of Massachusetts," a set of 40 horror stories put together by Mass Alimony Reform.

Divorce is one of the most trying circumstances people will ever find themselves in. What they must endure in Massachusetts - at the time of divorce and for decades after it's technically over - is a disgrace to the state and its citizens. It's blatantly unfair to the grownups, and it deprives children of ever seeing their parents become friends again, as Arianna's daughters have had the good fortune to see with their parents.

As we fight for legislative reform, we are keeping Arianna's enviable example of a family post-divorce in our sights even though, for the citizens of Massachusetts, that picture is a long way off.

Elizabeth Benedict is a novelist, journalist, and editor. Tom Matlack is a former venture capitalist turned writer and advocate for men as well as the divorced and remarried father of three. He co-founded The Good Men Project to foster a nationwide discussion on manhood through the forthcoming anthology of first person stories about defining moments as fathers, sons, husbands and workers.


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