Such is the unique hell that is Massachusetts alimony law—a particularly ironic hell, given our pioneering, progressive reputation when it comes to marriage. Completely separate from child support—about which state law is surprisingly lucid—alimony is intended to provide for the financial needs of the lesser-earning, or "dependent," spouse after a divorce. "Need," according to Massachusetts case law, is whatever is required to keep up, to the extent possible, the standard of living the parties enjoyed before divorce. (Although it's a gender-neutral law, most alimony recipients in Massachusetts are female.)
Today many states have statutorily defined the purpose of alimony—for instance, as a temporary arrangement allowing the dependent spouse to get on his or her feet financially; as compensation for money invested in a marriage (like paying for a spouse's medical school); or as punishment in an at-fault divorce. In Massachusetts, by contrast, the statute mandates that alimony exist, but neither the courts nor the legislature has formally explained why. As such, the rules on who gets alimony, how much, and for how long are murky at best.
Because the statute is so vaguely worded, award decisions are habitually based on case law, the growing mountain of which is a hydra of rulings that point in so many directions that almost any decision can be defended or overturned on appeal, depending on how smart your lawyer is and which precedent he selects to argue your case. "There's no predictability about what a judge will do," says David H. Lee, a family law attorney and cochair of the Boston Bar Association's alimony task force, "and no predictability about whether an appellate court is going to be consistent with what was said months or years earlier. It's a real struggle." He adds, "A lot of people are looking for logical explanations. But when you look at alimony [in Massachusetts], you have to check logic at the door."
When an alimony case comes up before a judge, the focus is almost exclusively on the wealthier ex-spouse's ability to shell out, and hardly ever on the recipient's ability to fund his or her own needs. If the court believes a payor is intentionally underemployed in an attempt to lower alimony obligations, it will base the award on previous earnings history. In modification hearings, judges frequently count a second spouse's income as part of "total household income" and then use that figure in determining whether the payor has enough income to keep paying alimony (a backhanded way of tapping into a second spouse's income). But unlike in most states—and every other state in New England—here judges historically do not assume any income for the recipient, even if he or she is able to work but chooses not to. (In fact, Massachusetts' alimony system doesn't even conform with state rules for other areas of family law. In child support cases, recent reforms explicitly encourage the judge to impute potential income to a recipient if the judge believes the recipient is shirking higher-paying work.) Finally, when determining a payor's ability to meet alimony obligations after retirement, judges can count the income from retirement accounts, including those already divided in half during the original divorce proceedings. This last precedent confuses even the judges who must abide by it. "The courts have said up until now that it's not a double dip," says Edward M. Ginsburg, a retired judge who heard alimony cases for 25 years in the Middlesex Probate and Family Court. "But it is a double dip."
For all this, what really sticks in the craw of would-be reformers is that alimony in Massachusetts is so often a burden without end. While permanent alimony is frequently awarded nationwide for unions that lasted more than 20 years, judges in other New England states can set alimony duration, even for the longest marriages. New Hampshire, for example, tapers alimony over time to encourage a recipient to support him- or herself (judges there also take into account the recipient's income in setting the payment level). Alimony in the Granite State is by definition transitional, says Margaret Kerouac, chair of the family law section of the New Hampshire Bar Association. "There is case law that specifically says it is not a lifelong profit-sharing plan," she says. Not so in Massachusetts: The only way judges here will set a cutoff for alimony is if it is tied to a specific event, like the recipient's remarriage, death, or new inheritance. And since judges cannot predict what a recipient's financial circumstances will be at a point in the future, most simply award indefinite alimony and leave it to the payor to seek modification. The vast majority of judges who do want to set a duration get overturned on appeal, so few ever try.
"Massachusetts is unusual," says Gaetano "Guy" Ferro, a family lawyer in Connecticut and past president of the American Academy of Matrimonial Lawyers. "They're not consistent with the laws as I understand them anyplace else." He laughs. "I think I'm going to tell my female clients to move there."
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