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February

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Lawyers Journal

Filing of the Alimony Reform Act of 2011

The end of this year will mark my 28th year of practicing law in the Probate and Family Court. Family law is one of the most dynamic areas of practice, with major changes in the law seen in the last three decades.

Family law involves some of the most emotional and difficult cases for practitioners to work on, as they involve assisting families in crisis to move forward in their lives. These cases often deal with the sensitive issues of how to share children, how to protect someone from domestic violence and how to have two families come from one and financially survive, often when the family had financial difficulty living under one roof.

Over the years, I have heard many lawyers remark that they were leaving this practice area, as they found it very difficult and mentally draining. I commend each and every lawyer in private practice, those in legal services and Probate and Family Court judges and staff, for the difficult work that they do each and every day assisting real people dealing with real problems who are looking for assistance to find real solutions. Their jobs have not gotten easier over time. These difficulties are reflective of the increased complexity of issues people are dealing with as a society.

The work of the Probate Court, as with all Massachusetts courts, is impacted by the longstanding hiring freeze and ongoing budget constraints. Yet the stream of people continues to grow in the Probate and Family Court and we all wrestle with how to assist these families in crisis. I have always considered the work in this area to be incredibly important to our communities as we are dealing with the foundation of our society - families.

One particularly emotionally charged family law matter is alimony. Under the current law, resolution of this issue is complex and time consuming, often impeding cases from settling.

Specifically, the duration of alimony has been problematic. In March 2003, I stood before the Massachusetts Bar Association House of Delegates to present a resolution that the association file legislation adding two words -- "and duration" -- after the word "alimony" to the statute that deals with property division and alimony. At that time, almost eight years ago, the consensus of the Family Law Section Council was that this would assist in the negotiation and resolution of alimony and give judges the ability to set a term limit on alimony.

This began the long journey to where we are now, with the filing of The Alimony Reform Act of 2011.

Since 2003, the MBA would re-file this piece of legislation with the start of each legislative session. And each year, the outcry for reform strengthened within and beyond the legal community. During MBA President Mark Mason's tenure, a joint Massachusetts Bar Association and Boston Bar Association task force was convened to address the complex issues surrounding alimony orders. I served as the MBA co-chair and David Lee represented the BBA as co-chair. Months of analysis and discussion culminated with a task force report issued in 2009. Both the Massachusetts and Boston bar associations supported the group's recommendations.

Later in 2009, I was asked to participate on a legislative task force formed by the chairs of the Joint Committee on the Judiciary - Sen. Cynthia S. Creem and Rep. Eugene L. O'Flaherty. Through the leadership of task force chairs Sen. Gale D. Candaras and Rep. John V. Fernandes, the group worked to propose a bill that lessens the ambiguity associated with alimony rewards.

The Alimony Reform Act of 2011, if passed, represents major alimony reform. Among its provisions, the 2011 legislation recommends:

  • Establishing separate alimony categories with clear definitions and set limits on duration;
  • Opportunities to terminate alimony at retirement;
  • Altering alimony when ex-spouses cohabitate with new partners;
  • Adding factors to consider in an alimony order; and
  • Allowing judicial discretion to deviate based upon particular case facts.

The MBA Family Law Section Council has voted unanimously to support this proposed legislation. On Jan. 20, 2011, the MBA House of Delegates also voted unanimously in support of the act.

Now, through the efforts of Chief Operating Officer and Chief Legal Counsel Martin W. Healy and Legislative Activities Manager Lee Constantine, our collective position on this legislation will be made known. We will continue to keep you updated on the status of this important legislation.

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