The Massachusetts Alimony Reform Organization has just issued a 26-page report, “The Shame of Massachusetts: Alimony Horror Stories,” that presents stories describing the effects of the state’s archaic lifetime alimony laws in no-fault divorces, on 41 people and their families.
To view full press release.
Also see: Horror Stories Posted on Fox 25 News
Published: August 24, 2009
Massachusetts Lawyer's Weekly
Excerpt: "Proceeds that an ex-husband received by exercising stock options were part of his gross annual income and had to be shared with his former wife as part of her alimony, the Appeals Court has ruled in a case of first impression.
The couple, Janet and Thomas Wooters, divorced in 1994. Their divorce judgment called for Thomas to pay Janet, as alimony, one-third of his "gross annual employment income."
Thomas received shares of nonqualified stock options as part of his salary package as executive vice president and general counsel for LoJack Corp. In 2006, he exercised some of his stock options and listed the money received as part of his gross pay on his 2006 W-2 form. He did not, however, pay any part of the proceeds to his ex-wife as part of her alimony.
When Janet learned this, she filed suit in District Court, claiming that her ex-husband was in contempt of the divorce judgment's alimony provision.
Probate & Family Court Judge Dorothy M. Gibson agreed, finding that the exercised stock options fell within the definition of "gross annual employment income" as provided in the divorce judgment and ruled the ex-husband in contempt.
He then challenged the judge's ruling in the Appeals Court, which concluded that exercised stock options are part of a divorced man's annual income. It found no controlling case on point in Massachusetts but did find decisions supporting its conclusion in Arizona, Arkansas, California, Florida, Illinois, New Hampshire and Ohio. MORE..
[MAR Editor's Note: Notice that the Massachusetts Appeals Court will selectively look at other state laws to justify its decisions because the legislature has not written clear laws to guide judges.]
August 10, 2009
From the Massachusetts Appeals Court Decision:
"The wife does not argue that the judge's findings are clearly erroneous. She argues instead that the judge abused her discretion by considering only the wife's increased income, not the simultaneous, larger increase in her living expenses. We agree.
"To be successful in an action to modify a judgment for alimony... the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.' ... Absent a material change in circumstances, a reduction in alimony constitutes reversible error notwithstanding the considerable discretion that probate judges otherwise enjoy in setting alimony. ... 'In determining whether to modify a support or alimony order, a probate judge must weigh all relevant circumstances." ...
[MAR Editor's Note: The Massachusetts Appeals Court reaffirms that an alimony receiver has no obligation to take responsibility for his/her life, either managing expenses or getting a job -- thus maintaining the alimony receiver in the status of dependent ward of the higher-earning spouse.]
Massachusetts Bar Association, Section Review, Vol II, No 1, 2009
Eyster v. Pechenik — A Miranda warning for prenuptial agreements?
By Attorneys Thomas J. Barbar and Liza M. Connell
In Eyster v. Pechenik, the Massachusetts Appeals Court held that their pre-nuptial agreement was invalid.
According to the above authors,
"The court applied the “fair disclosure” rules articulated in Rosenberg v. Lipnick, 327 Mass. 666 (1979) to determine if the prenuptial agreement was valid at the time of execution. Those rules are: (1) the agreement contained a fair and reasonable provision as measured at the time of its execution for the party contesting the agreement, (2) the contesting party was fully informed of the other party’s worth prior to the agreement’s execution, or had, or should have had, independent knowledge of the other party’s worth, and (3) a waiver by the contesting party is set forth.
"Eyster’s appeal in the matter focused on the third Rosenberg rule, and that is where the court began its analysis. The court held that there was no informed waiver of marital rights because the agreement did not contain any express provisions regarding what the rights of the parties would be under M.G.L. c. 208, § 34 and how the disposition of the assets and property in the prenuptial agreement could be very different from how they might be divided in a divorce proceeding."
"While the right to have an attorney retained to represent one’s interests in a prenuptial agreement is certainly not a protected right under the Constitution, in this case, the lesson seems to be that when it comes to prenuptial agreements, one cannot afford not to have counsel at least review the agreement and ensure its validity prior to execution. The parties would have better spent their time and resources obtaining counsel prior to execution, rather than having the agreement declared invalid by the court when the husband sought to enforce it. By not retaining counsel during the drafting, review and execution stages, the parties essentially created a document that had no effect when needed. While this worked to the advantage of the wife, as she did not want the agreement to be enforced, it went against the entire purpose of the agreement that Pechenik had in mind and left him in the exact same position as if the document had never been signed in the first place, a mistake most people cannot afford to make when drafting prenuptial agreements. Certainly the legal fees associated with the drafting of the prenuptial agreement would have been a very small percentage of the attorney fees associated with the litigation in the Probate and Family Court and the Massachusetts Appeals Court."
[MAR Editor's Note: In Massachusetts, the higher earning spouse - male or female - is at risk of paying lifetime alimony. This obligation also comes with the risk of jail sentences if that higher-earning spouse loses his/her job and cannot meet alimony payments. Futhermore, the higher-earning spouse faces the risk that the lower-earning spouse will come back repeatedly to increase alimony EVEN if the couple signed a pre-nuptial agreement to eliminate alimony.
From a rational perspective, why would any higher-earning spouse marry and/or live in Massachusetts when, under no-fault divorce, the lower-earning spouse can unilaterally walk-away from the marriage and receive life-time alimony? Wouldn't it be more rational to live in Rhode Island, for instance, and commute to Massachusetts or to move your business out of Massachusetts?]
Woman lawyer jailed for contempt involving alimony squabble
Tuesday, December 16, 2008
By Karen Nugent TELEGRAM & GAZETTE STAFF
CLINTON — A prominent Clinton lawyer and civic leader is in prison on a contempt of court charge stemming from the failure to pay money she owes her ex-husband in a drawn-out divorce settlement.
Cynthia A. Dziurgot of 75 Walnut St. was sent to Framingham State Prison on Dec. 2 after receiving a 90-day sentence in Probate and Family Court. A state Department of Correction spokeswoman said yesterday she is listed as an inmate there.
According to court documents, Ms. Dziurgot was found guilty of contempt in April, for failing to comply with a Probate Court order to pay her former husband, John A. Farnsworth of Lancaster, approximately $800,000 from a division of property agreement. She was ordered in January to pay $500,000 of the amount by Nov. 28, with the balance, $329,478, due Dec. 19. To read more
Massachusetts Horror Stories From Legal Sources
- Have the Courts Overlooked the Problem of the Predator Spouse? by C. Peter R. Gossels, and published in The Massachusetts Lawyers Weekly, February 5, 2007
Governor Patrick encourages citizen's to speak out on topics of high importance. He has a special website for hearing the views of Massachusetts citizens. Read the comments on Alimony and Family Court Reform, and then write your own comments about the above alimony horror stories, and especially the need for legislative reform.