Lawyers Journal

Alimony for the real world

It only took eight years. But once it got traction, nothing could stop it.

The Alimony Reform Act of 2011 was signed into law by Gov. Deval Patrick on Sept. 26 after winning unanimous approval from both houses of the Legislature. Family court judges are no longer constricted by legislation derived from 1785 English law, and now have many options to use when issuing an alimony decree.

The Reform Act does the following:

  • Sets limits on duration of alimony
  • Establishes separate alimony categories
  • Alters alimony when ex-spouses cohabit with new partners
  • Adds factors to consider in an alimony order
  • Allows judicial discretion to deviate based on particular case facts.

Under the old law, alimony was a blunt object. Now, it's more like a scalpel. Instead of alimony for life, which originated in a time and place in which wives were 
considered the property of their husbands, judges can adjust the terms of 
alimony to reflect the length of the marriage. And now, not only do judges have alimony options that reflect how people live today, they are allowed to make exceptions on a per-case basis.

"The previous law was more about keeping the receiver's standard of living. There was no consideration of the standard of living of the payor. The new law will [consider] the standard of living of both parties, and will also encourage people to be responsible for themselves and take control of their lives," says Steve Hitner, president of Massachusetts Alimony Reform, a grassroots group that took its case to Massachusetts lawmakers.

On first glance, that sounds as if the new law offers exemptions of a sort to the divorcing party with more financial clout, which throughout most of history has been the man. But the law gained the support of the Massachusetts Bar Association, the Women's Bar Association, the Massachusetts Bar for Indigent Women and the Second Wives and Partners Club, before its acceptance in the Legislature.

The scrapping of the antiquated alimony-for-life proviso makes alimony a more viable option for marriages of short duration, thereby making it more plausible to award to indigent and marginally-indigent individuals (who are still mostly women) to transition out of a short-term marriage, says MBA Immediate Past President Denise Squillante, a family law attorney who practices in the Fall River area.

The provisions in the Alimony Reform Act reflect decades old social changes, such as more women in the workforce, the rise of cohabitation without marriage, the economic consequences of people living longer, sometimes with long-term chronic diseases and in need of long-term care.

"Overall, it's good public policy -- good for families and for the commonwealth. Going into alimony in the past was the great unknown for all the parties, and it could vary from judge to judge," Squillante notes.

The new law "provides payors with knowing there's an end, and provides payees with reasonable expectations. This is fair to both sides," she says. It also addresses cohabitation. Under the old law, a payee could be living with someone, sharing a common household with the accompanying economic advantage, and still receive alimony. The second hot issue, she says, is second wives. Before, a second wife's income could be taken into consideration in determining alimony payments when the payor remarries. Now, it can't. The third "very hot issue" deals with retirement. Payors who work after retirement age shouldn't have that income factored in.

This provision is long overdue, indicates Hitner. "We have people in their 80s with Alzheimer's, who don't understand why they're going to jail for nonpayment of alimony," he says.

In addition, the law takes into consideration the double penalty of child support and alimony. If a payor is paying out a majority of income on child support, the new law prevents the excessive overlap of child support and alimony.

There are exceptions, such as when a long-term marriage dissolves and the payee is battling cancer. Health insurance and who pays it are also on the table now -- a reflection of the economic significance of what under the old law was barely on the radar screen.

From many voices, one

For years, call for alimony reform has resonated beyond the legal community. Every year since 2003, the Massachusetts Bar Association has filed and re-filed alimony reform legislation. During MBA President Mark Mason's tenure (2006-07), a joint task force of the MBA and the Boston Bar Association was convened to address alimony issues. Squillante served as the MBA co-chair and David Lee represented the BBA as co-chair. The task force issued its report in 2009, the recommendations of which were supported by both the MBA and the BBA. Later that year, Squillante was invited to participate in a legislative task force formed by the chairs of the Joint Committee on the Judiciary, Sen. Cynthia Creem and Rep. Eugene O'Flaherty. Task force chairs Sen. Gale Candaras and Rep. John Fernandes proposed a bill to address the need for alimony reform.

Massachusetts Alimony Reform's Hitner was the only non-lawyer on the task force, but it was through his dogged efforts to build a critical mass of credible people adversely impacted by alimony law (he dubs both male and female speakers the "Minute Men") that kept the wheels moving. His own experiences with alimony have taken a heavy financial toll on him, pushing him into bankruptcy and foreclosure. His experience might have been a prime breeding ground for fringe-group zealotry, but Hitner didn't go that way. "I backed up what I had with proof. I wasn't looking for anything extreme," he says.

Through an online network, he built a cadre of people with alimony experiences similar to his, and coached them in how to meet with and build relationships with their lawmakers. He also kept the network updated as to when issues were coming up for a vote.

Attorney Rachael Biscardi represented the poorer, largely silent group of women recipients, says state Rep. John Fernandes, a member of the task force, which filed the legislation. "She was really the conscience of our task force. She made us look at the perspective of the indigent spouse, and without her, we would not have [had] the voice we needed to hear in that room."

Biscardi, a representative from the Women's Bar Association and director of the pro bono project for the Women's Bar Foundation, notes the many problems with the old law, most notably that judges felt they didn't have the option to award short-term alimony.

"If I had someone who was a victim of divorce from a short-term marriage, who needed alimony to get themselves back together, then it was really hard to get that," she says." One of the major reasons people stay in abusive relationships is that they can't support themselves. ... Clients might need alimony for a short time to get themselves together, but judges thought they were unable to award alimony in those cases."

During its 14 months of work, the task force adopted pieces of legislation from other states and the American Academy of Matrimonial Lawyers. "Nobody compromised on this," Hitner says. "Compromise means people gave things up. We came up with a solution, the way the system was designed to work." As he recalls it, the "victims of the old system" approached their lawmakers. "There was no picketing, no name-calling, there was nothing but respect and listening to make change for a better system. Everybody agreed it was broken, but nobody knew how to fix it." But they would learn.

At first, the spokesperson group didn't understand the reasons why lawyers couldn't adopt certain measures, but they learned that some of the limitations occurred because of tax issues and other situations. Additionally, Hitner says, each attorney had a different point of view because of the type of clients they represented.

"It was like a room full of doctors. They didn't understand the problems the other doctors were having. Some dealt with indigent and abused clients only; others dealt with wealthy clients," he says. Despite that, the work environment was without argument. When differences of opinion arose, the group worked for however long it took to develop a solution, and then moved on.

When the bill came before the legislators, it moved smoothly from the house to the senate, and was not delayed in conference committee. At the end, the Alimony Reform Bill had 133 cosponsors. "Everyone was working for the same purpose -- to change a bad law," Hitner says.

Making the future better

"If a marriage lasts five years, and the litigants are in their early 20s, judges would have been very reluctant under [prior] law to issue alimony because they knew it would be for life," says Fernandes. "We looked and said we want to turn this upside down. It's too broad and too singular in its design. Let's create something that gives guidance to the court."

"People were abusing the system," Hitner says, citing alimony payment streams that endure for 30 years and more. "They were abusing it when the economy was good, and when the economy went bad, judges couldn't make changes."

"Everyone on the committee was extremely sensitive and compassionate about issues about low-income recipients, to make new law apply to everyone, not just those with the loudest voices," says Biscardi. "There's always going to be culture shock when a new law comes down. People find predictability will help settle cases. Family law cases rip a family apart. With guidance and help, we can allow parties and lawyers to settle cases, so families don't have to go through that."

Hitner notes, "I know on my last day of breath what happened to me will never, ever happen to someone [else] in Massachusetts. I won, that's what means the most to me. No one else will go through what I went through."

©2017 Massachusetts Bar Association