I ran into a divorce and personal injury litigator at a party in Cambridge the other day (background on Massachusetts family law). Her most recent trial concerned the amount of alimony that a defendant who had reached full retirement age (67 currently) should pay. Under a 2011 law characterized by proponents as “alimony reform” (I personally reject that characterization since family law is pretty much a zero-sum game and what looks like a positive “reform” to a plaintiff will generally be a negative for a defendant, or vice versa), the defendant should have been able to stop paying the plaintiff. What did the judge decide?

First, a little background… about 30 years ago the plaintiff sued her husband. As is typical in Massachusetts, the plaintiff prevailed (obtaining the house, kids, cash) but the profitability of the whole enterprise was limited by the defendant’s below-average income. Stripped of daily contact with his children, his domicile, and most of his spending power, the defendant went over the border and moved in with his brother in a neighboring state, thus saying goodbye to the plaintiff and severing his ties with the children (consistent with the research results summarized in http://www.realworlddivorce.com/ChildrenMothersFathers: “Ten years after a marriage breaks up, nearly two-thirds of the children report not having seen their fathers for a year”). The plaintiff eventually learned that the defendant, together with his brother, had won his local state’s lottery and thus 20 years of substantial annual payments. She went back to court and sued for increased alimony and child support payments based on the new cashflow. “We were able to get almost 100 percent of the net lottery proceeds transferred to us,” said the litigator, “in a combination of child support and alimony. But there were a lot of hassles due to the interstate nature of the litigation.” My companions and I at the party congratulated her on winning what seemed like a complete victory. “My client did make one mistake,” she said ruefully. “She should have gone back to court to get her alimony increased when her children turned 23 and the child support payments stopped.”

The latest court proceeding was started by the former husband. “His income from wages was zero,” said the plaintiff’s lawyer, “and the lottery payments had ceased, but he was still under a court order to pay the same amount out of his Social Security and retirement savings.” The former husband sought to have the alimony terminated in accordance with the headline language of the new alimony statute. The former wife, who had never worked and therefore was not entitled to Social Security, sought to have the court order her ex-husband to keep sending checks in the same amounts, regardless of his new lower income or advanced age. The judge split the difference and ordered the man to keep paying the woman indefinitely, but at a reduced rate. (The fine print of all of these laws gives judges discretion to do more or less whatever they want.)

[Note that this is consistent with what a divorce litigator with 40 years of experience told us. “Statutory language changes, but there is no jury in a divorce lawsuit,” she said. “So if the Legislature gives the judge any discretion the outcomes won’t change. The judge has a certain idea of what a fair resolution looks like and, absent removing judicial discretion, the only thing changing the statute does is change what the judge writes to justify that outcome.”]