Divorce Reform In Massachusetts: David vs. Goliath

The long sought Alimony Reform battle will likely come to a climax this spring. In January of 2009 an almost unprecedented 72 State Legislators co-signed a Bill (House Bill 1785) that would make divorce law in Massachusetts more clear, predictable and fair. The upcoming legislative battle pits the big money, self-interested Boston Bar Association (represented by Senator Creem and Senate Bill 1616) against the little people - the men, women and children who have to endure the current vague and acrimonious divorce process. House Bill 1785 would be a major step forward for family law (into the 21st century) that would reduce the fear and uncertainty that currently characterize divorce in Massachusetts.

Most data suggest that 50% of first time marriages and 60% of all marriages will end in divorce. If you are married or even thinking about getting married (nearly everyone!) this issue will likely touch you or a friend or family member. By all accounts, the Divorce laws in Massachusetts are antiquated and badly in need of modernization. Several recent articles (below) do a great job of outlining the short comings of the current system:

The Boston Globe, November 13th 2009

WBZ News, November 10, 2009

The New York Times, November 9th, 2009

The Wall Street Journal, October 31, 2009

The reform efforts are based on two entirely different approaches.

House Bill 1785 would introduce dramatic change to the existing divorce law. There are six major goals of the two page Bill.

• Protect the truly needy
• Eliminate lifelong marital welfare
• End expensive lawyer battles over vague alimony rules and interpretations
• Provide equal and consistent application of the law, regardless of the judge
• End lifetime restrictions on the civil rights of alimony payers
• Support self-sufficiency and independence for both spouses.

Most importantly, House Bill 1785 would spell out the rules for alimony in a way that is clear and predictable for all.

The second approach was introduced by the Attorney and State Senator - Cynthia Stone Creem of Newton. Senate Bill 1616 would add only two words "and duration" to the existing divorce law and, thus, would preserve the status quo. This Bill represents the feeble attempt of Divorce Attorneys (represented by the Boston Bar Association and Senator Creem) to keep the Family Law money machine alive and well. Their argument is that the existing laws provide complete judicial discretion which is important, they claim, because no two divorces are the same. Senator Creem is a practicing defense attorney, a member of the Boston Bar Association and the Chair of the Joint Committee for the Judiciary which currently has jurisdiction over this entire matter. The conflict of interest is stunning. However, when asked in a recent interview with the Boston Globe about this obvious conflict of interest, Senator Creem had this to say: "I don't think the conflict you're driving at is there."

If you have had the misfortune to go through a divorce in Massachusetts, you would understand that complete "Judicial Discretion" (what the BBA is promoting) is what causes parting spouses to fight endlessly in drawn out legal battles. When there are no guidelines and Judges have complete discretion, divorcing spouses have little basis for understanding what is fair and what is not. Thus, with the encouragement of divorce attorneys (always willing to rack up billable hours) couples fight endlessly over everything, especially alimony. This acrimony ruins relations between parting spouses, ruins the chance for a stable post-divorce environment for the children and drains the family coffers. The only parties who benefits from complete Judicial Discretion are the divorce attorney's who use this pretense to maximize their billable hours.

Let me give you an example that will resonate with most adults. When you buy a car, you know that the General Manager of the Dealership has complete discretion on what price you pay, the value of your trade-in and the financing terms. Imagine yourself nervously approaching the dealer to buy a new car (Why are you so nervous? Because this will be the last car you ever buy and the choice you make and price you pay will effect the quality of the rest of your life) As you enter the dealership you realize that you have two choices: 1) get in and get out as fast as you can without much argument and OVERPAY or 2) fight like the dickens with the sales person, resort to childish behavior like stomping of the dealership in an angry huff and, ultimately, get a FAIR PRICE. Due to the full discretion on Family Law Judges and the absolute lack of any explicit guidelines for couples to follow, most rational couples chose to fight like the dickens and resort to all kind of inappropriate behavior to try to get a fair divorce.

To illustrate the unpredictability and capriciousness of Family Law, it is useful to consider a survey of 200 Family Law Judges completed recently in the Nevada (a State which also allows complete Judicial Discretion). These 200 Judges, all with considerable experience on the bench presiding over divorce cases, were given the exact same hypothetical example divorce. They were given a full description of the couple involved and all the relevant facts in the case and were asked to outline how they would rule in a court of law. The case involved an (upper) middle class family making $120,000 a year. Not surprisingly, the results were all over the map. Some judges did not award alimony at all, others awarded as little as $1,500 a month and others awarded as much as $5,000 a month. The length of the alimony award ranged from zero to life. If you do the math over the lifetime of the payer or the recipient, these awards would amount to $0 (nothing) to as much as $1,500,000 over a 25 year period. Given this ambiguity, who wouldn't fight over $1,500,000 especially if you had a divorce attorney encouraging you?

The Boston Bar Association is shamelessly lobbying behind the buzz words of "Judicial Discretion" to preserve the status quo and to keep divorce proceedings as lengthy and acrimonious as possible. House Bill 1785 creates a clear, predictable and fair law that will allow for sufficient judicial discretion. This law will make divorce less traumatizing for couples and their children and will leave families with more money to support their kids. The only losers with this bill are the divorce attorneys who are supporting Senate Bill 1616 which add ONLY TWO WORDS to the existing law - promoting the status quo. Massachusetts today has some of the most outdated divorce laws in the Country. The status quo is completely unacceptable.

To learn more I urge you to go to www.massalimonyreform.org

The families of Massachusetts deserve better.

 

Follow Tom Matlack on Twitter: www.twitter.com/tmatlack

Comments

[eb1225]

07:44 PM on 01/30/2010

How can anyone justify imposing an obligation to support an ex-spouse for many times the length of the marriage? I married a second time at age 50. My ex-wife was 43. We had no children. Because she had children from her second marriage living at home, I agreed that she should work only part-time. I provided about 70% of the family income. We divorced after less than six years of marriage. She got the house, but the judge also awarded alimony (about 20% of my income) because she claimed that she could only work part-time because of a head injury. I'll probably be supporting her for three or four times the length of our marriage and I probably will not be able to retire before age 70 or 72, if ever.

How is that just?

[Luckstyle]

01:49 PM on 11/23/2009

The recent irresponsible and criminal behavior (sexual assault, drunken driving, alleged payoffs) of some of our legislators is clearly unacceptable and in some cases may prove to be criminal offenses punishable by imprisonment. On another level lies another element of disconcerting behavior on the part of our legislature and their lawyer cronies. That is the attempt to preserve the current alimony system in Massachusetts to preserve personal income at the expense of fairness. While a committee is set to convene to study MA alimony laws, it is composed of legislators (many are divorce/matrimonial lawyers), members of the various bar associations (none too eager for change) and a lone advocate for reform, Steve Hitner. There is already wind that some of the 72 supporters in the legislature are feeling pressure to back off their support for fear of political reprisal from inside the system (like losing acommittee appointment). The issue of alimony and this subtle form of corruption have something very much in common: There is a presumption that even if circumstances change one should be provided with a guaranteed lifestyle. To those lawyers and legislators who think the system is not broken, consider what is must feel like to go to jail because your business has failed and you can't afford to pay and are thus in contempt. At this time of year we give thanks to our forefathers that we live in the land of the "some people are free."

[MetroWestWoman]

11:03 AM on 11/23/2009

On another note, I cringe just thinking about the tax dollars that go towards funding the overhead expenses (court rooms, judges, staffers, etc.) on these drawn out cases. I'd rather my family's money be spent elsewhere, rather than subsidizing the efforts of the spiteful and all those professionals who are dependent on the industry. Spend one day in a court room just listening to some of these cases, and you'll know what I mean.

[Tiger1985]

11:27 PM on 11/21/2009

To learn more about the Nevada survey of family law judges go to:
http://www.divorcenet.com/states/nevada/alimony_weakest_link
It is truly astounding how unpredictable alimony awards can be.

[Puma80]

06:36 PM on 11/18/2009

Obviously this has no direct bearing on Massachusetts, but here is how another former Commonwealth country, India, has recently made Supreme Court Decision on an Alimony case:

"No Alimony for Women who Desert Husbands":
http://www.deccanherald.com/content/36709/no-alimony-woman-desert-husband.html

Of course the WBA ladies would never sign up for this. It is their God given right to run off with Eduardo the Bartender, and have her ex-husband Chip support them both as they live a new life of pseudo-matrimony without actually getting married.

Here is One Idea: Only have Alimony in cases where there is Fault. And only then, in a way that punishes the at-fault party (for example an abusive husband). Also, like in the India SCJ case, make people at-fault forfeit any rights to alimony.

[Tiger1985]

03:30 PM on 11/18/2009

Here is one way David could slay Goliath - get HB 1785 out of the committee "black hole" and up for a vote. I would urge all those involved in alimony cases to STOP. Stop litigating and wait for HB 1785 to pass in a few months.
It makes sense, because if you cur are currently litigating a divorce here are your options:
a) Continue to litigate and spend tens of thousands on lawyers and wind up paying ALIMONY FOR LIFE, or
b) Wait a few months until HB 1785 passes, save the money you would have spend on attorneys (put it away for the kids for college) and get a fair alimony settlement - have the length of the marriage capped at 12 years.
In the meantime, I wouldn't pay my attorney one cent until the BBA backs of Senate Bill 1616 and endorses HB 1785.
If you like the idea, pass it on!

[Puma80]

05:23 PM on 11/18/2009

Here is what is in the cards for Massachusetts, the state which has the lowest heterosexual marriage-rates in the union, and the state which is following England's demographic footsteps very closely:

http://news.bbc.co.uk/2/hi/uk_news/7314435.stm

No Marriage = No Divorce = No Lifetime Alimony (indentured servitude)

As they say, Live Free or Die. That's one way to solve the problem, eh?

[Alimoan]

07:32 AM on 11/18/2009

As always, Mr. Matlack, you do a beautiful job of describing the current state of affairs as well as the enormous challenges that we face in our struggle to bring real reform to the hideously unjust alimony laws in Massachusetts. I think that you are particularly right to point out that our opposition (Sen Creem, Boston Bar Assoc., etc) are not to be underestimated in their rabid zeal (and formidable ability) to protect their economic interests by de-railing H1785 and maintaining the status quo. That is why it is essential that each and every advocate for reform continue to reach out to ALL members of the MA state House and Senate -- call, phone, write, or e-mail them AT LEAST twice per month insisting upon their active support of H1785 such that it emerges in this legislative session from the Judiciary Committee with a favorable recommendation. Creem and her gang are indeed the proverbial Goliath and know how to play this game much better than do we. The only chance that we, the proverbial David, have to prevail in our struggle for real reform is to keep the pressure on our elected representatives. Let's not let this historic chance to bring alimony laws into the 21st century slip through our grasp!

[Tiger1985]

08:33 PM on 11/17/2009

For those who argue that HB 1785 doesn't allow enough Judicial Discretion, please do the following.

1) Read House Bill 1785 - 2 pages

2) Compare it to Texas Law below from the Texas Bar Journal:

A LEGAL PERSPECTIVE: FAMILY LAW
By Mary Johanna McCurley and David A. Tanner

A trial court may, in its discretion, award spousal maintenance if certain requirements are met.1 Maintenance payments are limited to the shortest reasonable period but not more than three years, unless the spouse seeking maintenance can prove (1) that the parties were married for at least 10 years; (2) that the spouse seeking maintenance lacks sufficient property to provide for his or her minimum reasonable needs; and (3) that the spouse seeking maintenance cannot support himself or herself through employment because of an incapacitating physical or mental disability. If those conditions are met, the spouse may be awarded maintenance payments for an indefinite period.

http://www.texasbar.com/Content/ContentGroups/Publications3/Journal/2002/January1/andquot_Maintenanceandquot__Is_Alive_And_Well_in_Texas.htm

In other words, in Texas you can get alimony to a Maximum of three years unless
1) the marriage was longer than 10 years AND
2) the spouse has no money AND
3) the spouse is incapable of working.

How can Massachusetts and Texas divorce laws be SO VASTLY different?

[Puma80]

05:36 PM on 11/17/2009

Wow, nice research Tiger. I thought I was the only Stat-Cat in the house.

If Massachusetts goes the way of Texas, it's clear that many a divorce-lawyer in Boston will need to find themselves another area of law to practice in.

No wonder that the BBA is fighting the alimony reform bill (HB1785) like hell. The Mass divorce-lawyers have just as much to lose as the members of Oprah's Best Friend Club (i.e. Lifetime Alimony Recipients). What an Unholy Alliance.

[Tiger1985]

04:16 PM on 11/17/2009

I hope House Bill 1785 passes as well. It wil be a very positive step forward for divorcing parents and their children. But it will now be so good for Divorce Attorney Billable hours. That's why citizens need to go to www.massalimonyreform.org and gt involved. Otherwise, the lawyers will crush this legislation.

Here are the Facts:

Massachusetts has antiquated divorce laws and ALIMONY FOR LIFE
Massachusetts
-558 divorce attorneys
- population in 6.5MM
= 85 divorce attorney's per million (divorce rate = 2.5)


Texas is one of the Few states that has a limit on alimony (3 year max)
Texas:
- 1022 lawyers
- population is 24.3MM
= 42 divorce lawyers per capita (divorce rate = 3.9)

These are the facts.

Sources:

Divorce Rates: http://www.statemaster.com/graph/lif_div_rat-lifestyle-divorce-rate
Divorce awyers per state: http://www.lawyers.com/Divorce/browse-by-location.html
State Population: http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population

[Puma80]

08:20 PM on 11/17/2009

Looks like men are wising up! Here is the CDC's new-marriage rate (i.e. wedding rate) data for Massachusetts:

Massachusetts
Year : Marriage Rate (per 1000 population)
1990 : 7.9
1995 : 7.1
1999 : 6.2
2000 : 5.8
2001 : 6.2
2002 : 5.9
2003 : 5.6
2004*: 6.5
2005 : 6.2
2006 : 5.9

See a trend? Good luck to ladies in getting married in the coming years. They are going to need it. If the legislators don't fix the alimony human-rights problem soon, the demographic trends (i.e. young men voting with their feet) are going to fix it for them.

-------------------------------
* The gay marriage act of 2004 gave a temporary bump-up to marriage numbers due to pent-up demand within the gay community and out of state folks coming over for their ceremonies. However the overall trend is one of unstoppable decline in new-marriage rates. The apples-to-apples heterosexual marriage rates between 1990 and 2007 show a huge and ongoing drop.

[Robin M]

03:00 PM on 11/17/2009

I will keep my fingers crossed that this bill passes. There are several groups trying to pass laws in Florida re: alimony reform. We, too, have lifetime alimony and it is ruining the lives of innocent families every day. No one should have to support an adult for their whole life. It is unbelievable that this is still happening in this day and age. But, lawyers benefit from long, drawn out divorces and most judges just don't care that they are handing down lifetime sentences to men and women. We don't have to support our children financially after they graduate from high school, so why should grownups be supported for life???? Good luck!!!!