MBA–BBA task force debates future and fairness of alimony awards

Issue December 2007 By Kelsey Sadoff

The Massachusetts Bar Association and Boston Bar Association have created a Joint Alimony Task Force, which met for the second time on Nov. 14. The task force is focused on stimulating judicial, academic and legislative discussion in order to foster consistent and predictable alimony awards.

The Massachusetts alimony debate centers around “and duration,” two words amending G.L.c. 208 § 34 concerning the apparent breadth of discretion available to the court in fixing alimony orders. The task force hopes to recommend standards for reasonableness of amount and duration.

“Divorce is by definition a dissolution of an economic partnership,” said David H. Lee, the Alimony Task Force co-chair for the Boston Bar Association.

The 1974 amendment to the Massachusetts alimony statute, c. 208, sec. 34, allowed courts to order equitable division of property without reliance on traditional alimony concepts. Many members of the task force now worry that current Appellate Court case decisions are actually discouraging marriage unions.

“I was involved with 25 prenups this year – more than ever,” said Lee. “The Appellate Court cases are ignoring one factor of the statute.”

“It is confusing because the Appellate Court is making decisions based on a case-by-case basis,” said MBA Vice President Denise Squillante, the MBA’s co-chair on the task force. “There is no precedent set. There is a fear from the bench that if they award alimony, it will be forever.”

Closely tied to the discussion of ali- mony is a concern about child support. While there is an indication that child support guidelines may be adjusted in the future, members worry about the adverse effects of an alimony order in a case where levels of income may be affected by a child support decision.

“I believe everyone has a responsibility under the circumstances present to pro- vide financial support for themselves and their family,” said the Hon. Robert W. Langlois, of the Middlesex Probate and Family Court, East Cambridge Session.

“Judges are able to take a relaxed approach,” said Rachel Biscardi, super-vising attorney for the Women’s Bar Foundation. “Alimony and child support are interrelated.”

Same-sex divorce was specifically debated among members because of how “and duration” might be questioned in court proceedings. Although not an issue limited to same-sex marriages, often the dissolution of same-sex partnerships results in discussion about length of marriage versus length of relationship, due to the evidence of a commitment prior to legal contract.

“Judges who are practicing are more active in addressing the [alimony] issue than judges who are just reading Appellate Court decisions,” said Lee.

With such inconsistency in recent alimony court decisions, task force members are currently researching practices in other states for evidence of statutes that seem to restrict alimony. The hope is to eventually rework the concept of “stand-alone” alimony, and its connection to family support, for an alimony baseline in future court decisions.

The Alimony Task Force plans to meet later this year to continue discussion about ways to improve alimony awards in Massachusetts.