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Tom Matlack

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Divorce Reform In Massachusetts: David vs. Goliath

Posted: 11/17/09 12:45 PM ET

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.

 

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