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The New Alimony Laws In MA -- And Maybe In FL, NJ, CT, And OR?

Posted: 03/ 7/2012 12:50 pm

"So you're the little woman who wrote the book that started this great war?" Abraham Lincoln is said to have asked Harriet Beecher Stowe, whose novel, Uncle Tom's Cabin, published in 1849, was an instant bestseller and dramatized the horrors of slavery for all to see, years before the fighting began.

Fast-forward to suburban Boston, 2006. A working man with a printing and copy store, Steve Hitner, is reeling after a bruising saga in the Cambridge family court. Ordered to pay $865 a week in permanent lifetime alimony in 1999, when his business crashed after 9/11, he returned to court to ask for a reduction, as the law allowed.

Because he was self-employed, his documented financial ruin was suspect -- and ultimately rejected, even though he came to court with an auditor and his tax returns -- and he'd already gone bankrupt. The judge disallowed a reduction and ordered his new wife to work a second job to help him pay his alimony. After Hitner pleaded that he had massive credit card debt, the judge said, "When you run out of credit, I'll put you in jail."

Was this Steve Hitner's America? In his despair, he created an organization, Mass Alimony Reform (MAR) and put up a website. "The most surprising thing," he says, "is that women contacted me. They were paying alimony to their husbands' ex-wives." Out of that was born an offshoot to MAR: The 2nd Wives Club. It's been common in Massachusetts that when alimony payers remarry, their new spouses' income is included in the pot from which alimony can be taken in a modification -- often forcing working women to help support women who either work themselves or who are under no obligation to work, ever.

All of that and more changed on March 1, when the state's new alimony laws, last revised in 1975, went into effect. It's widely understood among lawmakers and lawyers that without Steve Hitner's tenacity and the political clout of Mass Alimony Reform, reform would not have happened.

Hitner's life has changed too: Because of his understanding of the new law -- he was on the Judiciary Committee Task Force that rewrote it -- he's consulting with people getting divorced, before they enter a lawyer's lair. He wants to help folks avoid ending up where he did.

His success in the political arena has spawned grassroots organizations across the country, in states where alimony laws, in whole or in part, resemble Massachusetts' -- Florida, New Jersey, Connecticut, and Oregon, to name a few.

The new Massachusetts law -- and those proposed in other states -- does not do away with alimony. To the contrary, it's awarded more like child support, with guidelines based on the length of the marriage and the income of the parties. And there is room for exceptions and judicial discretion. But the basic idea is that people need to know what they'll be getting or what they'll have to pay; they need predictability and the ability to settle out of court. Payers need a real right to retire and end payments, and those who cohabitate need to move on with their lives, minus lifetime alimony.

Alimony originated when women had no economic power, divorce was uncommon, and cohabiting was scandalous -- and those days are long gone. But laws in many states have not changed with the times, in part because lawyers have a stranglehold on the system -- and they profit from open-ended laws and the ability to generate conflict, and hence litigation.

Other attorneys take a broader view. When I asked his opinion on the reformed law, New York's "Dean of Divorce" Raoul Felder told me, "On the whole, the overhaul of the law is a good thing, and all divorce laws should be overhauled periodically to see if they keep pace with society's progress."

Florida's laws are steeped in the past -- but perhaps not for long. The House just passed a new law by 83 to 30, and the Senate is likely to vote on it soon. Florida Alimony Reform (FAR), the public, the media, and many lawyers and even judges understand the kinds of abuses that take place when there are no limits in the amount or duration of alimony. One Tampa man, who is 51 and suffers from throat cancer, was ordered to pay 85 percent of his income to his ex-wife -- and has been in court for years trying to undo the damage.

Says FAR's co-director, Alan Frisher, a Certified Divorce Financial Analyst, "Legislators are listening to our horror stories. For the most part, they understand that permanent alimony as a default needs to end."

But the Florida Bar Association's Family Law Section, which has had a heavy hand in rewriting the bills being considered, doesn't agree. The Bar recently posted a petition on their website, opposing every aspect of reform. Tales of foreclosure, bankruptcy, alimony payers with Alzheimer's paying until they die -- these are often met with skepticism, dismissal, or some version of: "This isn't the whole story. Maybe they went to court without a lawyer." Often payers do go to court without lawyers, because they can't afford them, but the laws are so skewed toward permanent alimony that even top lawyers can't get relief for their clients.

Many family lawyers in New Jersey read from the same script. In a state notorious for its out-of-date alimony laws and for judges who refuse to lower payments even when people have lost their jobs, legislators are considering a bill that would permit modifications in changed circumstances, and one that would establish a commission to update the law. "We must be doing something right," says Rutgers professor Tom Leustek, who runs New Jersey Alimony Reform, "because legislators are listening to our stories, and lawyers are trying to deny them."

Connecticut's alimony laws are under scrutiny, too. While judges there can order short-term or limited term alimony, they are free to order support for any amount or any length of time. Stamford Attorney Victor Cavallo, whose website openly declares that he fights for the rights of fathers and husbands "which are often disregarded in the midst of family law controversies," told me in an email that some features of the new Massachusetts law would be useful in Connecticut, including, at a minimum, guidelines for duration and termination of alimony, and recognizing "that alimony can be awarded as financial rehabilitation rather than gifted as a windfall at the payer's expense."

At the other end of the spectrum, noted Greenwich lawyer Wayne Effron, whose clients include many wives of wealthy Wall Street brokers, had a different take on the Massachusetts bill. "This law is a response to a public that is increasingly rejecting the use of lawyers in divorce cases. It lends some predictability to the outcome and helps those who represent themselves better understand the parameters for settling their divorce. The problem is that the financially disadvantaged spouse, often the wife, is the one who gets hurt by this legislation. There is now a ceiling on what she can hope to achieve from the divorce. Moreover, since most divorce cases are settled, she has lost bargaining power in the negotiations. A husband in a fifteen-year marriage knows he can't be made to pay lifetime alimony if the case goes to court. Therefore why should he 'give' his wife the house? ... Like most divorce 'reforms' these days, this one favors the spouse with the money and the earning power," he wrote in an e-mail to me.

Mr. Effron makes a strong point: In states where permanent alimony is common, the recipient has the upper hand. S/he is entitled to be supported in the "lifestyle of the marriage," though it all too often means that the payer's lifestyle is that of a struggling graduate student.

In Massachusetts, lawmakers and lawyers have just embarked on a plan that will tip the scales in the other direction -- many believe, in the direction of fairness for both parties, in the direction of how we might best live, love and divorce in the 21st century.

Elizabeth Benedict is a novelist and journalist who wrote an op-ed in the Boston Globe in 2008 that ignited the alimony reform movement in Massachusetts.