Massachusetts Alimony Reform: Some Judges Ignore the Law

October 25, 2013 by Robert Franklin, Esq.

Twenty months ago, the State of Massachusetts reformed its law on alimony. For many years, critics of the law pointed out its many flaws that left payers (almost exclusively men) deeply in debt and unable to retire at a reasonable age, while payees (almost exclusively women) were encouraged to avoid productive work and remarriage. Into the bargain, judges had almost complete discretion about what amount of alimony to award and for how long. The result was that neither lawyers nor their clients could predict what any given judge might order. So, often lifetime awards were made for marriages of short duration. In the news media, the public was treated to case after case of men slaving well into old age to support women they’d been married to for only a few years, women who lived off the alimony rather than supporting themselves. Read about it here (Boston Globe, 10/20/13).

In March of 2012, the state legislature unanimously passed a law whose purpose was to inject a bit of predictability into alimony orders, reduce the length of time alimony is paid, do away with lifetime alimony except in rare cases and stop alimony altogether when the payee takes up with a new partner.

The new law, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades and as a model nationwide, with alimony based on need. Unanimously approved by the Massachusetts Legislature, it curbs lifetime payments and sets specific time limits on alimony for marriages of 20 years or less. In longer marriages, judges may still determine the length of support payments. It also terminates alimony when the payor reaches full retirement age as defined by the Social Security Administration, though judges can extend alimony payments only for “good cause shown.” Such exceptions must be justified in writing by the judge. Also under the new law, alimony is supposed to end when a recipient spouse has been living with another partner for at least three months. “The message here is that everyone has to plan and be responsible for his or her own retirement,” says state Representative Gale Candaras, Democrat of Wilbraham, who cochaired the task force that wrote the new law. “The alimony law we had before discouraged people from rebuilding their lives and taking care of themselves after divorce.”

That’s what the legislature intended, but apparently the state’s judges have other ideas. The linked-to article provides two examples of men paying alimony to their ex-wives in which the judges seem to have simply ignored the clear intention and, in one case, the explicit words of the new law.

The first is that of Gary Young. He’s a veteran of the Marine Corps with a degree in pharmacy and an MBA. He and Elaine were married in 1979, and he made good money as a pharmacist while she worked in sales. That all ended in 2008 when Gary decided to start his own company. The economy was the worst it had been since the 1930s and his company failed. Elaine, who suffers from rheumatoid arthritis, became disabled.

They began divorce proceedings in 2011 which were finalized in July, 2013, i.e. 16 months after the new law’s passage. Gary is 67 which, under the new law, means that he should pay no alimony without a written explanation by the judge as to why it was ordered. But apparently Judge Patricia Gorman simply ignored both requirements of the new law. She ordered Young to pay almost $4,000 a month to his ex with no explanation why she was requiring a retiree to do so.

That’s made all the worse by the fact that Young has no money. Even Elaine agrees he’s deeply in debt, but no matter, Judge Gorman ordered him to pay alimony anyway. She did that by the tried and true method of imputing income to Young that he in fact doesn’t earn. He doesn’t earn because he doesn’t have a job and his company went bankrupt. Elaine got their house in the divorce settlement.

Yes, Young has presented the court with the numerous applications for employment he’s made, but to Judge Gorman, none of that matters. Ten years ago, before he’d reached retirement age and before he’d lost everything in his business venture, he had a good income. The fact that he has nothing now and no one will hire a 67-year-old man makes no impression on Judge Gorman. She’s so impressed with Young’s earning capability that she ordered him to pay Elaine’s lawyer $20,000 and, when he didn’t, tossed him into jail for contempt of court. His friends and relatives raised the money to free him.

That’s when Young, who is part Cherokee Indian, fled to the reservation in Oklahoma. His sole income is his Social Security check in the amount of $2,200 which the State of Massachusetts garnishes in the amount of $1,320 leaving Young $880 per month to live on. By contrast, Elaine receives that $1,320, plus her own Social Security plus $422 from a previous husband’s employer’s pension plan. That comes to $3,100 per month for her.

The new law isn’t meant to change the practice of imputing income to people who say they don’t have money, and that’s a problem apart from that of judges refusing to abide by its clear terms. The whole idea of imputation of income stems from the idea that some people will intentionally refuse to work and earn just to spite their ex. I suspect that practice is rare given the fact that, if one doesn’t work and earn to spite one’s ex, one spites oneself into the bargain. Still, I’m sure it happens.

But it seems that judges impute income to every man who claims he can’t find a job regardless of the circumstances. In Gary Young’s case, he provided proof that he’d tried to find a job, and any dispassionate person can figure out that few places are going to hire someone of his age. He’s not as vigorous as younger employees, more likely to be injured on the job, they’d have to pay him more because of his experience and they know he’s not going to be long at the company. He’s 67 years old, for heaven’s sake.

That brings up the question that arises in every case of imputed income, “How do you prove you don’t have something?” How do you prove you aren’t earning money or don’t have assets. Truth to tell, it’s not at all easy. A man’s ex-wife, or her lawyer or a judge can always say “Well, what about overseas bank accounts?” “What about cash income?” Tell me how a person is supposed to disprove income or assets. But that’s what Judge Gorman wanted Young to do. When he couldn’t, she chose his top earnings years and decided he could make that much now.

“It’s very difficult to prove that you don’t have money, that you can’t afford to pay,” says [reform advocate Steve] Hitner, president of Mass. Alimony Reform, a nonprofit advocacy group. “And some people either go to jail, or they skip town, and you can’t blame them.”

Now, as I’ve said for some time, some former spouses should receive some sort of alimony from their exes. Those are the ones who can’t get a job themselves due to age or disability and Elaine Young may well be one of those. The article doesn’t delve into just how disabled she is due to her RA, but apparently she’s not capable of doing her old job. Still, how does Elaine or anyone else defend the fact that, counting the alimony Gary pays and she receives, her monthly income is three and one-half times his? In fact, Gary is retired as is she. But in the twisted world of alimony law, she’s entitled to be, but he isn’t.

Elaine doesn’t do her cause any good when she attempts to answer that question by resort to her own self-interest alone.

[A]fter her 34-year marriage she says she was “left with nothing. I think I deserve some support, and people like me deserve support.”

Whether she realizes it or not, every word of that statement describes Gary and his situation as well as it does her and hers. The difference is that he pays and she gets paid.

Despite the law’s reform, some things never change.

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