From IssueSpot: The Real Story on the MA Alimony Reform Act

Thursday, March 15, 2012

This article was originally posted in IssueSpot, the BBA public policy blog. Click here to read the original post.

An op-ed that ran on CNN.com last week took a critical and somewhat nonsensical look at the Alimony Reform Act of 2011.  Issue Spot has reported on how well-received the legislation was by the private bar, the Probate & Family Court and the Legislature.  It has been heralded as a model of grassroots activism, coalition building and real collaboration.  Last week’s op-ed oversimplifies the new law and ignores key parts of the legislation.  Allow Issue Spot the opportunity to set the record straight.

The op-ed begins by describing the Alimony Reform Act as “strangely arcane” and a few paragraphs later as “a dangerous bill.”  The structured blueprint for awarding alimony that is spelled out in the bill is clear and transparent.  As for it being dangerous — this bill wasn’t hastily drafted, and it doesn’t disguise what it proposes to do.  There was a public hearing and, remarkably, the bill won the bipartisan support of the House of Representatives and the Senate when it was passed unanimously.  The Task Force behind the bill was then lauded for their outstanding work and tireless efforts by Governor Patrick at the signing ceremony.

The article also points to victims of domestic abuse who “might feel pressured to stay in an abusive relationship to make it to a particular cut-off period.”  Abuse-based relief was actually written into the law whereas in the past it fell under the umbrella of “conduct.”  It was judge-dependent how much weight would be given to conduct when deciding this issue.

What the CNN guest contributor is also discounting, or not mentioning, is that there are short term marriages in which there is domestic violence.  In the past, it could be a terrifying prospect to leave an abusive marriage in which the victim was economically dependent, precisely because the old law made it difficult for spouses in short term marriages to obtain alimony orders.  With the new law, alimony is available to the short term marriages, which can give a leg-up to victims who need to get out of the marriage.  Under the old law, those victims may not have received relief due to the brevity of a marriage.

These charges against the Alimony Reform Act are unfounded.  Conveniently for the author’s argument, she omits that under the new law alimony is awarded according to specific timelines.  The new law still allows the court to deviate from the durational requirements for reasons set forth in the statute or for any other factor that the court deems relevant and material.  Although one of its appealing benefits is that it provides clarification and predictability for awarding alimony, the court must still take all factors into consideration when making any decisions.

As one family law expert told Issue Spot this summer “the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion.”  This makes the author’s example of a woman faced with homelessness if her alimony payments cease far-fetched.  What judge would ignore such a situation and condemn a woman to homelessness

Besides, the author says that the alimony payments of the woman in this example will stop in two years under the new law.  This is not necessarily true.  For starters, payments don’t automatically end under the new law.  The payor has to file a complaint for modification.  It’s hard to know for sure what will ultimately become of the alimony payments, but any complaint for modification is an opportunity for further discussion.  To take an extreme case, as the author has, and hold it up as an example of what durational limits will do without acknowledging that this woman has the ability and the legal grounds to seek additional relief is disingenuous, to say the least.

The article ends with a typical refrain thrown at members of the Legislature: lawmakers only answer to the whims of lobbyists.  The process used to reform the alimony laws in Massachusetts was exhaustive and inclusive.  The Task Force assembled by the Legislature drew all stakeholders to the table – the BBA, the Massachusetts Bar Association, representatives from the court, attorneys who represent the very wealthy and those that represent the poor, concerned citizens, and even the Women’s Bar Association.  Instead of celebrating and acknowledging the contributions of those involved, the article diminishes their work.  The new alimony law in Massachusetts, despite what is claimed by critics, is not an oppressive, automatic cut off; it is a framework with a built-in mechanism for a judge to consider facts in order to make fair alimony determinations.

- Kathleen Joyce
Director of Government Relations
Boston Bar Association