Tag Archives: alimony reform

The Real Story on the MA Alimony Reform Act

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
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Putting New Laws Into Practice

The BBA is where public policy, legal practice and the law intersect.  Our programs are designed to encourage dialogue among lawyers and policymakers.  We also provide a venue for provocative big-picture discussions and help members stay on top of new laws and changing issues.  Coming up are two programs that are closely tied to the BBA’s public policy process.  The programs are focused on the implications of the passage of the Alimony Reform Act of 2011 and the Transgender Equal Rights Bill.  Both will greatly impact the way lawyers advise clients in the Commonwealth.

The BBA has worked on these issues for years – testifying at public hearings, engaging legislators in conversations, strategizing with other supporters and providing public comments.  In the case of alimony reform, the BBA was proud to be at the table when the new law was being drafted.  These bills were passed by both the House and Senate and signed into law by Governor Patrick with much fanfare.

While we have always worked to move the ball forward, we realize that it’s one thing to be able to help shape legislation and another to be able to help implement and educate the public about the new law.  In the next few weeks the BBA will host programs featuring informative educational components of these new laws.  You can find more information on the programs using the links below:

CLE – Alimony Reform: Here and Now

What You Need to Know About the Transgender Equal Rights Law

Wednesday marked the beginning of the second year of the two-year session with the House and Senate participating in familiar formalities after a seven-week recess.   While the House and Senate sessions were not lengthy, they were steeped in pomp and circumstance.  The ceremonial start of the session included the formation of special committees and delegations in the House and Senate.  These groups were tasked with informing each branch and Governor Patrick that it’s time to resume work, proceed with the business of lawmaking and to work together in the best interest of the state.

What will the BBA be doing in the second half of the legislative session?   We’ll still be working to move our own bills towards the legislative finish line.  That means picking up on progress that was made during the first half of the session and working hard to ensure that our other issues are given their due consideration before legislative committees.  That requires meeting with the sponsors of our bills and fellow proponents, but also with any opponents.

There’s more to be done on criminal justice reform and it appears that January will present the House with an opportunity to consider and debate sentencing reform.  January will also kick-start the debate on the state budget with the Governor’s budget recommendations set to be released on January 25th.  With recent leadership changes, it’s now a question of building new allies and educating them about the importance of the things we care about.  Heading into the second-half of the session, the BBA is looking forward not only to more legislative victories, but also educating the public on their impacts on the practice of law.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Practictioners’ Perspectives on the Alimony Reform Act

With the Alimony Reform Act of 2011 poised for passage, we thought we’d ask some of our members to share their reactions on the coming changes.  Here are the independent thoughts of the expert family law practitioners we canvassed:

Nan Elder – Bowman Moos & Elder, LLP

I think the principle benefit of the impending statutory change lies in the fact that it provides some scaffolding around which alimony awards can be negotiated and structured.  But the amount is only “some,” and the structure only “scaffolding” because the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion – and it will take some years and quite a bit of litigation and appellate work to better clarify the full structural outlines.  For shorter term marriages, it may provide more guidance and definition sooner, and thus enable more ready resolution of them.   Longer term marriages will, however, quite probably still raise significant issues regarding its application.  This will be especially true in both new divorces and modifications for those “traditional” cases where one spouse has been the primary wage or salary earner and the other the caretaker and homemaker, often in expectation of, reliance on, and even with the express understanding between spouses of, the indefinite continuation of this family model.

As with any change of such magnitude, the transition will be arduous in a number of respects.   For litigants, it presents both an opportunity for relief and resolution for some and a source of reopening of wounds and the burdensome expense of extended or renewed litigation for others.  For lawyers, it presents an opportunity for some really creative thinking and lawyering, as well as for providing a framework for advising clients – but cynics might also suggest it presents an unexpected or unwarranted bonanza of new work.  For the courts, its implementation risks further burdening an already broken system.  Although the legislation staggers the availability of modifications of alimony judgments predating its effective date in March 2012, most practitioners I’ve talked with expect a flood of requests in addition to the uncertainty and litigation that will inevitably ensue as the statutory structure is fleshed out.

While the transition and implementation may well be both lengthy and rocky, the end result will hopefully provide some measure of clarity, if not certainty, especially for shorter term marriages.

Jennifer Rivera-Ulwick – Middlesex Probate & Family Court

The benefit of the proposed changes is the potential sense of predictability and consistency in determining alimony which will allow people to resolve this issue without seeking court intervention at the trial level.   Like the Child Support Guidelines, the law will provide a roadmap of sorts in formulating the appropriate alimony award, if any, based on the circumstances of the parties.  Given the new scheme for setting the duration, amount and form of alimony awards, I anticipate not only a decrease in the number of cases tried over alimony but also an increase in modifications being filed with the court to adjust prior alimony orders in accordance with the new legislation.  The roll-out dates, which determine when a modification may be filed as a result of the change in the law, will initially help relieve the courts from being overburdened with modification filings although the number of filings may depend in part on the level of awareness of the changes on the part of alimony obligors which is sure to increase each year after the law becomes effective.

Anita Robboy – Prince, Lobel & Tye, LLP

Massachusetts is long overdue for a critical look at Section 34 as our Commonwealth is very much out of line with nearly every state in the duration of alimony awards.  The Bill has clear guidelines regarding expected points of termination.  The major change will be that attorneys can no longer state that a Probate and Family Court judge lacks the power to terminate alimony.  The Bill specifically enables judges to limit the duration of alimony and to amend prior judgments that had no termination point.  The interplay between alimony awards, if any, and the division of assets is forever altered.  The recipient of alimony has lost an important ‘chit’: the value of future alimony.  The payor can rely on obtaining termination upon the happening of certain events, such as age, the length of alimony already received in relation to the marriage, and cohabitation.  Counsel must now advise clients that alimony comes, if at all, in a variety of flavors.  It will be important to strategize which form of alimony is applicable and/or most advantageous.

John Fiske – Healy, Fiske, Richmond & Matthew

As a mediator, I see the greatest benefit of the alimony bill as analogous to the Child Support Guidelines: it gives clients a good idea of what a court would do without their having to go to court.  In my 32 years of mediating divorces, the uncertainty of the length of alimony has been the most challenging obstacle for many husbands and wives.

I will tell [my clients] I want them to make informed choices, and to read the law, or any available summary of the law including my own, to get an idea of what a court would do before they choose their own solution.  The outcome of many of my cases would not be very different [had the reforms been in place previously], but the process of getting there will be more efficient. The outcome in some of my cases will be different, probably reducing the number of cases where clients define alimony for a certain period and then agree to leave open the question of whether to continue alimony in some amount after that date.  This law will be beneficial to just about everybody: clients, children, lawyers, mediators, judges, probation officers and financial planners for example.

-Michael Bouton

Government Relations Department

Boston Bar Association

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Celebrations in the Senate Before the Summer Recess

In the days and even hours leading up to the legislature’s unofficial summer recess last week, there was a flurry of activity in the State House.  In the hubbub of lawmaking that took place, there were a few no-brainer bills that passed, but more contentious ones – like the court reorg bill– came down to the wire.  Among the bills passed was the long awaited and widely supported alimony reform law.  Sailing through with unanimous support in both branches of the legislature, it will make its way to the governor’s desk once agreement is reached between House and Senate differences in the bill.  Also receiving a unanimous vote in the Senate was the bill to provide post-conviction access to DNA.

To an outside observer, or any of the tourists trying to peek their heads inside the jam-packed upper gallery of the Senate Chamber last Thursday, it may have seemed like just another formal session in the Senate.  Senators milled around the chamber, staff came and went.  At 1 p.m., the Senate convened and immediately went into a recess.  Thirty minutes later, Senate President Murray was at the rostrum long enough to recite the pledge of allegiance before recessing again for a few moments.  Over the next hour, after a whirl of activity on various Senate bills, alimony reform was finally taken up and engrossed by a roll call vote of 36-0.  Applause broke out in the Senate Gallery and in the hallway outside.

Next up: access to DNA.  Senator Cynthia Creem took the floor and spoke in support of the bill.  She recognized Betty Anne Waters and the BBA for their contribution to this legislative effort, drawing members of the Senate to stand and applaud their work.  Seven amendments to the bill were then taken up.  Of those seven, two were withdrawn, one was rejected, and the remaining four were adopted.  When the roll call was taken, the bill passed 37-0.

It may have looked easy and effortless, but it actually felt chaotic.  The day before, Senate Ways & Means released the access to DNA bill with improvements and changes.  After reading through the revised bill, the BBA had a few suggestions and asked Senator Creem to file an amendment, to which she agreed.  On the morning of the scheduled Senate debate, other senators filed even more amendments to the bill.  These last minute amendments sparked discussions in the Senate hallways and on email.  Even in the moments before the start of the Senate session we were still trying to fix loopholes that the additions to the bill had opened up.

Then, finally…a signal from the Senate floor.  A senior Senate staffer looked towards the gallery and flashed a thumbs up. Just like that, it was over.  The bill had passed unanimously, capping off a monumental afternoon for those who had labored for years on this issue.  While pausing to take in what had just happened, it was nice to see the House sponsor, Representative John Fernandes, waiting one floor down outside the Senate Chamber.  Rep. Fernandes indicated that he is looking forward to taking this issue up on the House side once the legislature comes back from its summer recess.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Long Overdue Alimony Bill Hits Gov.’s Desk

**UPDATE 9/26/2011 – Governor Patrick signed The Alimony Reform Act of 2011**

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Today the Senate picked up where the House left off last week — passing the long awaited Alimony Reform Act of 2011.  Advocates of alimony reform packed the Senate gallery, wearing red shirts as a sign of solidarity and as a visual reminder of the legislation’s numerous supporters.  Tucked into the cramped viewing area, members of the legislative task force on alimony patiently waited to witness their hard work come to fruition.

Getting to this point, with comprehensive alimony reform on the verge of enactment, has not been easy.  For years lawyers have shared anecdotes of clients forced to pay alimony indefinitely, regardless of circumstances.  They have also pointed to inconsistent rulings leading to forum shopping, and the need to consider cohabitation as a factor in modifying existing alimony agreements.

These past few weeks we have witnessed the culmination of years spent analyzing Massachusetts’ antiquated alimony laws and offering recommendations in the form of legislative proposals.  The process has had starts and stops.  It has been protracted and often contentious.  Yet now, thanks to the perseverance of the BBA and other organizations, the bill is on the Governor’s desk awaiting his signature.

It is remarkable how far we have come.  This outcome is an example of what can be accomplished when individuals with different perspectives identify a common goal.  By working collaboratively and cooperatively, stakeholders approached the problem rationally and hammered out an agreement in which everyone sacrificed something for the common good – the sign of a successful negotiation.

Session after session, alimony bills have been filed, many of which have garnered the BBA’s support.  One such bill added the words “and duration” to the current alimony statute, a simple addition thereby giving judges the discretion to place durational limits on alimony awards.  Pushing for a small change like this can have the advantage of quietly accomplishing a revision without causing as loud a clamor as sweeping change tends to do.  Yet in hindsight, it takes more than just a couple of words to fix the Commonwealth’s broken alimony system.

Last session, the Legislature finally saw the full scope of the problem.  After years of study and advocacy, how could they not?  The Judiciary Committee brought all of the stakeholders together to reach a fair and realistic consensus.  This bill goes beyond the BBA’s initial concerns; it tackles the broken system of alimony head-on in a clear and concise manner.

This entire process has broadened our view of a systemic problem in the administration of justice.  It has also opened our eyes up to just how much can get done when all of the stakeholders in an issue put everything aside to focus on the problem at hand.  The Alimony Reform Act of 2011 is the culmination of years of hard work and will be a victory for justice in the Commonwealth.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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