Should Permanent Alimony Be Eliminated?
By Barbara von Hauzen, Esq.

"The long-term financial implications of unconditional and indefinite, life-time alimony awards, as judgments of the Probate and Family Court, often create an unending and unfair economic burden on the obligor. Uniformly, the judiciary, counsel, and clients are affected by alimony factors that are subject to wide interpretation, applied inconsistently from judge to judge and even from case to case, and fail to address societal realities. The current statutes and case law require judges to enter “decisions based on speculative projections of each person's future expenses and income.”

"Awards that provide spousal alimony for indefinite periods of time are common and presume and foster the inability of each party to take fiscal responsibility for his or her future needs in perpetuity. Additionally, they place limits on each party’s post-divorce economic and social recovery. For example, the possibility of an obligee’s co-habitation or engagement in alternative living arrangements where financial support from another individual is available is not reflected in the award calculation, thereby creating an unjust burden to the obligor."

"...it is fair to say that the permanency of today’s alimony award results in incarceration with no chance of parole."

"Why Alimony Reform Is Urgently Needed"
By Mass Alimony Reform

Emily Rooney, the host of WGBH's Greater Boston TV show, referred to Massachusetts' alimony laws as draconian in an interview with Elizabeth Benedict, author of The Chilling Effect of States Divorce Laws. Why draconian? The problem is that the penalties for the higher-earning spouse are severe, such as:

• Lifetime alimony (welfare) payments (See The New York Times);
• Alimony payments 1/2 or more of the higher-earning spouse's after-tax paycheck, even after splitting all assets and retirement accounts 50-50;
• Never-ending threat that the lower-earning spouse will go back to court for more money at any time and from time-to-time (see Wall Street Journal);
• Threat that the second-wife will be forced to pay alimony to the husband's first wife (see 2nd Wives Club, and the Boston Globe, "The Chilling Effect of States Divorce Laws");
• No due-process in "No-Fault" divorces. Judges with wide discretion simply order the higher-earning spouse to pay life-time alimony to the "walk-away" spouse who unilaterally chooses to abandon the marriage and not work (see Boston Globe, Adrian Walker, Alimony agony;
• Court restrictions on higher-earning spouse's freedom to change jobs if the new job pays less than the previous job;
• No relief from paying alimony to ex-spouses who co-habitate with another person; and
• Jail sentence and loss of passport when the higher-earning spouse loses his/her job and can no longer make alimony payments (See Fox News 25).

More...

SPOUSAL SUPPORT DISORDER: AN OVERVIEW OF PROBLEMS IN CURRENT ALIMONY LAW by Jennifer McCoy
FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 33:501]

"As demonstrated in the previous section of this Comment, significant problems exist with spousal support law as it exists today. There is no legal basis for requiring someone to continue supporting his or her former spouse, especially one with no childcare responsibilities or health problems that prohibit employment. Everybody resents making support payments, the system is often taken advantage of, and the mere existence of spousal support contributes to society’s negative image of women as helpless and dependent on men. So why do legislatures and courts continue to maintain the system? Perhaps more importantly, should legislatures and courts continue to maintain the system? " ...

"Instead of basing this new system of spousal support on the compensation or rehabilitation theories, the court should base support on a temporary basic needs model. The temporary basic needs model would focus on supporting the immediate, physical needs of the recipient spouse, such as shelter, food, clothing, and medical care. Under this rationale, the less economically advantaged spouse will not become destitute following divorce, and the wealthier spouse will not be required to assume total responsibility for someone else’s future. In determining the monetary value of support awards, courts should still use traditional statutory guidelines and judicial discretion, but the primary determinant of the award’s value should be the supporting spouses’ own needs, salary, and ability to make payments without sacrificing their own standards of living and without compromising their future abilities to assume responsibility for new spouses and children. Most importantly, support payments under this new system would only be temporary. Awards should last no longer than one or two years. This period constitutes a sufficiently reasonable period of time for the recipient spouse to adjust to his or her newly single status, but not long enough for him or her to become accustomed to such payments. Payments should end immediately if the recipient remarries, cohabitates, or attains steady employment prior to the cut-off date.

Although no system of spousal support will ever be perfect, a good system will balance the needs of the supported spouse against the burden on the supporting spouse and will ensure that the negative effects of divorce are imposed equally on both partners to the marriage.171 Spousal support should be a temporary measure. It should not be a way of life the recipient can rely on forever and not a responsibility for which the paying spouse remains indefinitely obligated."

Alimony: Peonage or Involuntary Servitude?
by Alfred J. Sciarrino
and Susan K. Duke

Abstract: "...Most spouses contemplating divorce must be prepared for economic suicide. The income that marginally maintained one middle-class household will most surely not be able to maintain two. ...For such a determination may result in one spouse actually supporting the other for a period of time, and even for a lifetime, and sometimes resulting in the supporting spouse’s inability to sustain such support and be held in contempt, or coupled with child support result in the inability to provide properly for the child or children when in his or her care. No wonder, for many, an award of maintenance, and especially of lifetime maintenance, may smack of peonage or involuntary servitude."

Problems With Division Of Marital Property and Alimony in the USA
By Dr. Robert B. Standler
October 4, 2008

This 116-page legal analysis provides an in depth discussion of the history of alimony, the legal basis and problems of alimony, and the constitutional issues, all extensively referenced with footnotes. In addition, the paper includes a state-by-state analysis of alimony law.

The author provides detailed analysis of the constitutional and practical problems with the current state laws and offers recommendations to correct such problems.

The MA Bar Association's Alimony Task Force Guidelines

A Step In The Right Direction, But Not Sufficient.

Download the MBA's Alimony Task Force's Proposal

In cases without dependent children, the Massachusetts Bar Association's Task Force has offered a set of guidelines for judges to consider. While these guidelines do not have the force of law, nor can they influence case law decisions, the MBA has moved significantly to address some, but not all, of the problems identified by the press and the Massachusetts Alimony Reform (MAR) group. These guidelines show that the MBA as been thoughtfully considering the problem of lifetime alimony awards.

A. Positive aspects of the Task Force proposal include:

• The MBA has proposed specific formulas for calculating alimony in marriages lasting less than 20 years. These formulas, while extending alimony terms beyond reasonable and sufficient periods proposed by MAR, are still an important recognition that Probate and Family judges need guidelines to make alimony awards consistent and predictable, regardless of the judge hearing the divorce case.
• The MBA recognizes that alimony payers have a right to retire:
  
  "Retirement-Notwithstanding the above, a payor’s alimony or spousal support obligation for general alimony is presumed to terminate upon the payor spouse’s retirement in fact from gainful employment at an age that would be considered usual retirement age for the spouse’s career."
• The MBA proposes a cap to Alimony payments:
  
  "V. INCOME GUIDELINES (NOT APPLICABLE TO REIMBURSEMENT ALIMONY) An alimony or spousal support order in a specific dollar amount when set, should be entered in consideration of traditional concepts of alimony including marital lifestyle and need of the parties. The dollar amount should not generally exceed 33% of the difference between the gross ordinary incomes of the parties. The Alimony Task Force emphasizes that the foregoing is not to be utilized as a “formula” for setting an alimony or spousal support order.
  
  Any support being paid for child support (payer’s pre-tax equivalent) or for spousal support pursuant to a court order should reduce the payer or payee’s gross ordinary income for the purposes of this Section V."

B. Deficiencies of the Task Force Guidelines Make Them Unacceptable:

• Second-Wives are not protected from paying alimony to first wives.
• The guidleines are still too general, with multiple considerations for judges to consider, increasing litigation and court costs and leaving the rule of law up to the discretion of judges, not the legislature. As shown in the media and law journals, the wide discretion of judges has led to inconsistent life-time alimony awards and jail sentences that depend on the judge assigned to the case, not the facts of the case.
• Co-habitation of the alimony receiver is not a defined reason for lowering alimony payments.
• There is no limitation on an alimony receiver going back to court - even decades later - to start alimony or to increase alimony in a long-term marriage.
• Alimony dependency continues greater than reasonably necessary for an alimony receiver to go to college, get career training, and become a fully independent, self-sufficient, and productive member of society.

S 1616 Perpetuates Lifetime Pain for Higher-Earning Spouses and Second Wives

Senate Bill 1616 simply adds TWO WORDS to the thirteen or so broad considerations in the current alimony legislation, "and Duration". Senator Creem's proposal will keep the case-law driven alimony system unclear and unpredictable -- continuing to maximize animosity among divorcing couples, increase contentious and bullying lawyer debates, and add to already excessive legal fees in the court room. The revised language does:

• Nothing to clearly end the automatic sentencing of lifetime alimony to people who's only "crime" was to be divorced by a walk-away, lower-earning spouse under the state's "no-fault" divorce laws.
• Nothing to clarify the hodgepodge, quilt work of antiquated case law decisions, creating a lifetime of worry and fear for honest, higher-earning men and women who are at the unbridled mercy of judges' unpredictable and inconsistent decisions using their wide discretion;
• Nothing to stop second wives from being forced to work and support first wives in alimony modifications;
• Nothing to clarify when an alimony payer can retire;
• Nothing to support lower-earning spouses to develop self-confidence and independence, rather than becoming a life-long, dependent ward of their higher-earning spouses;
• Nothing to stop alimony receivers from coming back to court to demand an increase in alimony or to come back and restart alimony long after the original alimony ends; and
• Nothing to stop the alimony receiving party from collecting full alimony, even when he/she cohabitates, but does not marry his/her partner.

The Probate and Family Courts are overcrowded with divorce and alimony modification cases, forcing judges to make their own "cookie-cutter" rules that will speed the cases through the divorce court mill. Except in expensive trials, each judge metes out his or her own alimony decisions based on their personal guidelines. The result is that alimony decisions vary from judge to judge, creating a violation of the equal justice provision under the United States Constitution. Email your opposition to Senate Bill 1616.

The Lawyers' "Partnership Model" is a wrong construct for these modern times.

The Women's Bar Association argues that the "partnership" model for divorced couples means that the higher-earning ex-spouse must pay alimony for past career sacrifices made by the lower-earning spouse [conveniently ignoring the career sacrifices by the higher-earning spouse]. Does this partnership model still apply when the lower-earning spouse walks-away from the marriage, has an affair with another man or woman, or otherwise is at "fault" for the divorce due to unilateral choices he or she made? The issue of fault is ignored by the Woman's Bar Association since Massachusetts is a "no-fault" state. Rather, the rule of case law is simply to punish the higher-earning spouse, for life, solely for being the higher earner at the time of the divorce.

Today, according to the Wall Street Journal Article, In Downturn's Wake, Women Hold Half of U.S. Jobs, 50% of the workforce is made up of women, and 40% of women in marriages earn higher incomes than men. The partnership model was conceived when women did not have the career successes and choices that exist today.

In addition, the lawyers supporting this "partnership" model appear to be hypocritical, as they do not follow an analogous partnership model in their own firms. When a long-term law partner quits the firm -- even after decades of service -- that attorney surrenders all partnership benefits. That partner no longer receives a share of the firm's profits in an amount that he or she became accustomed to receiving after long years of service.