Copyright (c) 1990 New England School of Law



New England Law Review

Volume 24, Spring 1990; article begins on page 745







Massachusetts is fifth in the nation in the percentage of families headed by women. Only the District of Columbia, New York, Georgia, and Mississippi have a higher proportion.

The feminization of poverty in Massachusetts is more acute than elsewhere. Nationally, 48% of those living below the poverty level are mothers and children; here, 68% of the poor are mothers and children. Female-headed households in Massachusetts are eleven times more likely to be in poverty than two-parent families, more than twice the national average.

In 1984, 70% of the female-headed households in Massachusetts had incomes below $ 20,000, while 80% of the two-parent families had incomes over $ 20,000.





Rule 401 should be revised to recognize marriage as a "partnership." It should impose fiduciary responsibilities of full disclosure upon the divorcing parties, and it should authorize sanctions for failing to do so. n11

I see them (family service officers) as browbeating the parties to the cases in order to process the cases more quickly. This saves the court the time it would take to hear the cases before judges. Family service officers are more interested in settling the cases than in getting to the right result.

At times it appears that the court and its personnel have a limited appreciation about the inequality in ability of parties to bargain effectively at the time of marital separation. Women in these times often feel less adequate than men in areas of articulating their needs and wishes, forcefulness in negotiating, and economic stability. Furthermore, women often have a wish to resolve conflict through communication and mediation rather than taking a more adversarial posture, and it is thus important that these differences be recognized rather than overlooked in any form of divorce proceedings. n14

If the support of all children by absent parents is to continue as public policy, then the findings from this study suggest that legislation mandating mediation in all disputed family matters involving child custody, child support, and visitation would be inconsistent with policy. Furthermore, the findings from the study would not support legislation to mandate mediation only in child custody and visitation disputes, since child support is so intimately entwined with the custodial arrangement.

a. they do not have to settle if they do not want to, and that the case can go to court on the election of either party.

b. the information gathered by family service officers is not confidential and when appropriate may be shared with the judge.

c. there are several purposes for meeting with family service officers, including fact gathering for the judge; assessment of issues in conflict; opportunity to clarify issues and defuse conflict; facilitate use of legal and social services; mediate temporary agreement if both parties freely accept the terms of the agreement.

a. signs of unequal power in the dynamics between the parties.

b. signs of unfair concessions by either party in the mediation

c. effects of abuse on the dynamics between the parties and adverse effect on children whose custodial parent is being abused.

a. There should be no mediation unless both parties voluntarily agree to it, and the parties appear to have roughly equal power, based upon a preliminary assessment of the family dynamics.

b. There should be no mediation of the division of assets until there is full disclosure and valuation, or acceptance of valuation, of assets. Courts can, however, go forward on temporary support issues.

a. All cases should go before the judge. At that time, the judge may offer to the parties, in appropriate cases, the option of giving information to a family service officer. Although this procedure may require [*776] several appearances, we believe that this quantity of time before the judge is justified, despite caseload pressures.

b. Family service officers will carefully explain to the parties that they are meeting only to gather information. The goal is not to balance the needs of one individual with the needs of the other, it is only to determine the needs of each. Meetings with each individual, instead of the two together, are encouraged whenever possible.

c. The Committee recognizes that in these meetings, it is possible that the needs of the couple may coincide in such a way that it may not be necessary to go before the judge. We recommend, nonetheless, that all cases where the family service officer has identified domestic violence should go before the judge who will publicly emphasize that such behavior is unacceptable.

Rule 401 should be revised to recognize marriage as a "partnership." It should impose fiduciary responsibilities of full disclosure upon the divorcing parties, and it should authorize sanctions for failure to do so. n33

TABLE 1: ANNUAL INCOMES * Name Year Before-Divorce Woman's Post-Divorce Filed Income Family Size Income Family Size 001 1984 $ 76,866 ** 4 $ 36,982 ** 3 002 1985 $ 13,702 1 2 $ 6,093 1 1 003 1985 $ 54,241 4 $ 24,704 3 004 1983 $ 153,900 2 $ 31,800 1 005 1985 $ 33,371 5 $ 15,015 4 006 1984 $ 28,637 3 $ 10,937 1 007 1974 $ 20,263 3 $ 17,780 2 2 008 1984 $ 47,840 5 $ 22,560 4 3 009 1978 $ 60,888 ** 4 $ 58,342 3 010 1971 $ 15,366 1 4 $ 5,200 3 011 1985 $ 49,762 4 $ 32,800 3 012 1984 $ 22,660 4 $ 8,860 5 3 013 1984 $ 43,144 4 $ 22,344 3

TABLE 1: ANNUAL INCOMES * Name Year Man's Post-Divorce Filed Income Family Size 001 1984 $ 39,884 ** 1 002 1985 $ 8,080 1 1 003 1985 $ 29,538 1 004 1983 $ 122,100 1 005 1985 $ 18,356 1 006 1984 $ 17,700 2 007 1974 $ 12,983 1 008 1984 $ 25,280 1 009 1978 $ 35,388 4 ** 1 010 1971 $ 10,166 1 011 1985 $ 16,962 1 012 1984 $ 13,800 1 013 1984 $ 20,800 1

TABLE 2: PERCENT OF MEDIAN INCOME * Before-Divorce Women's Post-Divorce Man's Post-Divorce Name % Median % Median Change % Median Change 001 247% 133% -114 181% -66 002 59% 26% -33 35% -24 003 165% 84% -81 128% -37 004 740% 153% -587 587% -153 005 105% 46% -59 79% -26 006 103% 50% -53 80% -23 007 156% 81% -75 125% -31 008 155% 73% -82 115% -40 009 298% 323% +25 250% -48 010 132% 50% -68 126% -6 011 152% 112% -40 73% -79 012 73% 32% -41 63% -10 013 139% 80% -59 94% -45

TABLE 3: COMPARISON OF STANDARD OF LIVING BEFORE AND AFTER DIVORCE * Pre-Divorce Standard of Living After Divorce Standard of Living Under 100% 100-135% 136-199% 200% or More of Median 004 - H - W 009 - H - W 001 - H - W 200% or More 003 - H - W 007 - H - W 008 - H - W 011 - H - W 013 - H - W 136-199% 010 - H - W 005 - H - W 006 - H - W 100-135% 012 - H - W H = Husband 002 - H W = Wife - W 0% Under 100% 100-135% 136-199% 200% or More of Median

TABLE 4: SUMMARY OF CASES STUDIED Length of No. of Av. Age Socio-Economic Status Children Marriage Cases W H Low Med High Yes No Less than 10 years 3 29 30 2 1 0 2 1 10-19 years 9 46 47 4 2 3 7 2 (3NM) (3NM) 20+ years 8 53 55 0 3 3 7 1 Total 20 6 6 6 16 4 (2NM) NM - Not Mentioned N/A - Not Applicable Note 1: Includes one case in which the trial judge awarded alimony to the husband. The award was vacated on appeal.

TABLE 4: SUMMARY OF CASES STUDIED Length of Ages of Children Alimony<1> Wife Employed Marriage 1-10 11-18 19+ County Yes No Yes No Less than 10 years 2 N/A N/A Plymouth - 2 2 1 2 1 Norfolk - 1 10-19 years 3 6 N/A Hampden - 3 5 4 4 4 Middlesex - 2 (1NM) Barnstable - 1 Hampshire - 1 Plymouth - 1 Suffolk - 1 20+ years 0 1 7 Hampden - 3 8 0 3 4 Middlesex - 2 (1NM) Norfolk - 1 Hampshire - 1 Plymouth - 1 Total 5 7 7 15 5 9 9 (2NM) (2NM) NM - Not Mentioned N/A - Not Applicable Note 1: Includes one case in which the trial judge awarded alimony to the husband. The award was vacated on appeal.

a. Use of wage assignment, the most effective means of support enforcement in most cases, is increasing. Wage assignment still is not put into operation administratively in many locations because there is no system to do so.

b. Actions for contempt are time-consuming, labor-intensive means to enforce support. They are not always effective and often create additional difficulties for women seeking support. [*801] They should be reserved for instances when no other enforcement method has worked.

c. In an effective enforcement system, jailing must be used to punish those who do not respond to other sanctions. Jailing is seldom used, however, in the Commonwealth.

d. Courts interpret the standard for modification of support too strictly, denying women the benefit of modifications to which they are entitled.

e. Child support awards virtually never are designed to keep up with inflation or with normal changes that occur over time.

f. Enactment of the relatively simple civil procedure for paternity establishment has eased the task of obtaining support for children born out of wedlock, but some provisions of the law are still not adequately used.

g. Faced with an increasing caseload, the court system as a whole, and the probate courts in particular, will require both increased resources and a more efficient case processing system. Quotas and other limitations on the number of support cases heard per week are inefficient and contribute to delay.

* The Department of Revenue (DOR) took the place of the Department of Welfare as the single, statewide coordinating agency for child support enforcement for welfare families, and it was given the additional responsibility of providing child support enforcement services to families not receiving welfare.

* The law allowing child support payment by wage attachment was strengthened.

* The state's paternity law was changed to permit the establishment of paternity in civil proceedings.

* Written, numerical guidelines to assist judges in setting child support amounts were mandated.

"when a mother misses a child support check and contacts the Family Service Department about it, she is told to wait longer, that maybe the check will come. In some cases, she is told to wait until a set number of checks have been missed. Generally that number is four. Meanwhile, there is no action taken in her case. Even if she is not told to wait longer, the Family Services Department has a policy that it won't take any action until the request is in writing . . . . This causes further and unnecessary delay, and it presents a real barrier to unrepresented women, to illiterate or barely literate women, and to women whose primary language isn't English."

a. About half of the probate judges surveyed agreed that "Mothers should be home when their children get home from school," and 46% agreed that "A preschool child is likely to suffer if his/her mother works."

b. Women who are separated from their children temporarily may lose custody, even if they have been primary caretakers.

c. Dating and cohabitation by mothers is still viewed differently than dating or cohabitation by fathers, although it may be less of an issue than formerly.

a. Permanent shared legal custody is being ordered inconsistently with existing law.

b. Shared legal custody is being ordered when parents are unable to agree about childrearing, and even when there is a history of spouse abuse.

c. The inappropriate use of a presumption of permanent shared legal custody and inappropriate awards of shared legal custody adversely affect women.

"Temporary" custody refers to arrangements about custody that are designed to be in effect only until a hearing on the merits can be held. Despite the label "temporary," these decisions are extremely important, because courts are reluctant to alter custodial arrangements that appear to be working.

"Permanent" custody refers to an arrangement that is part of a final [*828] judgment. Even "permanent" orders can be modified, however, since the court retains jurisdiction over minor children.

"Legal" custody refers to the right of a parent to be involved in making major decisions concerning education, medical care, and emotional, moral, and religious development. "Shared" (also known as "joint") legal custody gives both parents the right to be involved in making such decisions. "Sole" legal custody gives one parent the right to make major decisions, although the other parent has the same rights of access to academic, medical, hospital, or other health records of the child as he or she would have in the absence of the custody order.

"Physical" custody concerns the allocation of time a child will spend with each parent. It carries with it authority for the parent who has physical custody to make ordinary day to day childrearing decisions.

"Shared" or "joint" physical custody refers to a situation in which the child does not have a principal residence, but spends substantial amounts of time with both parents. When a child resides most of the time with one parent, that parent was traditionally said to have "custody" or "sole physical custody," while the other parent had "visitation" rights. Because objections have been expressed to the term "visitation," this arrangement is now sometimes characterized as one of "primary physical custody" and "secondary physical custody."

"Split" custody refers to a situation in which different parents have custody of different children.

The courts, as in the rest of society, expect far more from women as caretakers than as men. Any shortcomings the woman has, whether directly relating to her parenting or not, are closely scrutinized. Whereas, if a father does anything by way of caring for his children, this is an indication of his devotion and commitment.

The family service officer who performed the investigation recommended that custody be changed because the father had remarried and was capable of providing a more stable family life for the girls. The mother worked while the children were in school and sometimes was late, returning home 15-30 minutes after the children.

This mother "successfully" mediated her case by agreeing to joint custody and splitting physical custody. The girls stayed with her four nights and with their father three nights. The father was not ordered to pay any arrearage on the earlier support orders nor was he ordered to pay future support especially since he had the children half of the time.

There appears to be a minimal recognition of the difficulties facing single parents, particularly single mothers. Juggling employment, child care and emotional demands of all children is a monumental task. Mothers described as shirking responsibilities are often ones who are desperately trying to perform adequately in all areas but have found it close to impossible, given economic constraints, erratic child support [*835] and inadequate day care. In addition, requiring a mother to quickly achieve financial independence may be another overwhelming burden.

If a woman voluntarily gives up custody of her child and then wants custody later on, the judges will not give it. . . . [Women] . . . must demonstrate their parenting commitment all the time. Any deviation from that means that the court will not give the mother custody again.

The court treats a mother much more severely than a father if she leaves her family and then returns. She will have a big fight on her hands in order to get any visitation rights. On the other hand if the father leaves and returns, the judge will ask him what visitation does he want.

It happens all the time. Fathers go in ex parte even without an emergency. When they go back in, custody often is given to a grandparent. In [one] county where I practice, this is done a lot with no notice.

If a mother has lost the child in a previous court situation, that will [*836] raise questions about her fitness. The same is not true for fathers. Questions will not be raised necessarily about his competence because the loss is attributed to the divorce situation.

The temporary order is critical in custody cases. . . . You can't rectify the balance later on if the husband gets the temporary order unless he is an axe murderer.

Although . . . much of the time the homelessness was directly or indirectly caused by the father leaving the household without adequate support to pay the rent, the courts will routinely transfer custody to the father when the mother becomes homeless, thereby rewarding him for his misbehavior. If the woman was on AFDC, without her children she will lose her grant and the possibility of getting emergency assistance or housing help, making it less likely that she will ever regain custody.

In many divorcing families who appear before the court, the intimate relationships of parents to what are termed 'unrelated third parties' are often used as significant factors relevant to custody and visitation arrangements. [*837] Again, it is our impression that the standards applied to mothers and their conduct are often harsher and more rigid than those applied to fathers in similar circumstances.

The mother's new husband or boyfriend is seen as distracting her from her role as caretaker [for] the children, as at risk for physically or sexually abusing the children, as proof that the mother is unstable or promiscuous or less than adequate. At best, he is merely irrelevant. However, the father's new wife or girlfriend proves that he is stable, working toward providing a new supportive nuclear family. And she is assumed to be a caring person who can and does more than adequately care for his children.

[*838] Upon the filing of an action . . . and until a judgment on the merits is rendered, absent emergency conditions, abuse or neglect, the parents shall have shared legal custody of any minor child of the marriage; provided, however, that the judge may enter an order for temporary legal custody for one parent if written findings are made that such shared custody would not be in the best interest of the child and that the parties do not have a history of being able and willing to cooperate in matters concerning the child [emphasis added].

Only a few judges routinely ascertain whether the parents are able to communicate with one another; able to work together regarding the child's education, religious training and medical needs or even share the same basic philosophy regarding discipline or social contacts of their children.

have led to confusion and unrealistic demands for immediate joint legal and physical custody upon separation of the parents, by parents and lawyers who fail to understand what shared custody involves, and how to implement an effective shared custody plan . . . . Parents who lack the goodwill, capacity, and ability to cooperate are enabled, through a joint custody order, to further exacerbate and prolong the damaging impact of divorce upon the child. In addition, joint physical or legal custody may be awarded with complete disregard for the age and developmental stage of the child, thus causing severe hardship and trauma to the minor in order to serve the parents' need (p. 31).

M.G.L. c. 208, § 31, should be amended to require divorcing parents who request shared legal custody to demonstrate their ability to cooperate in protecting the child's interests by developing a mutually acceptable parenting plan, prior to the date the court renders its final decree.

I recommend [permanent shared legal custody] 90% of the time, if for nothing else to appease the non-custodial parent. Even when the parties can't work it out and can't talk to each other, I'll still recommend it.

when the statute [c. 208, § 31] is erroneously interpreted as presuming joint custody, a bargaining advantage accrues to a parent who would be an unlikely candidate for custody in the final decree. The more appropriate [*841] parent, aware of the deficiencies of the other adult, will often bargain away needed financial assets or income in order to win agreement for sole custody of the child.

It is important here to distinguish between violence against the mother and that against the children. A number of women will try to prevent visitation because they have been beaten, but if there is no incidence of the husband beating the children, the father should get visitation rights.

Allegations may arise only after a custody study or other court action has begun. There is no reason to believe that these cases are necessarily false. Many parents hope to divorce, gain custody, and restrict visitation without mentioning sexual abuse and inviting [child protective service] agency involvement [emphasis added].

Abuse may begin only after the divorce. Cases alleging such behaviors should not be dismissed as implausible.

One factor repeatedly cited as a deterrent to deliberate false reporting is the potential damage an allegation may do to the alleging parent's reputation. One guardian ad litem observed, "If mom does bring it up, people are going to ask, 'what did she do about it?' So, if you are just manufacturing a story, you'd better get ready for criticism." The sentiment that the allegation hurts the parent making the charge is echoed by others who believe that the court is likely to view most parents bringing such allegations as vindictive and angry (Pearson and Thoennes 1988).

In one instance in a pretrial conference, a father claimed he was denied visitation. Without even listening to the mother or her attorney, the judge gave custody to the father. In reality, the father's visits were irregular. He arrived hours late on his visitation days and brought the children back late. The custody decision was changed after hearing only the father's statements.

Although Middlesex County jurors as a whole appear to be evenhanded in their verdicts, male jurors as a group may be influenced in their individual decision making by stereotypical notions about men and women.

TABLE 1 AWARDS GIVEN BY MEN UNDER 40 IN MIDDLESEX Female Plaintiff Male Plaintiff Medical Expenses $ 82,611 $ 51,119 t = 1.9306; p = .0567 * Diminished Earning Capacity $ 1,075,618 $ 1,060,112 NS Pain and Suffering $ 985,722 $ 914,552 NS NS = Not Significant * = Marginally Significant ** = Significant

TABLE 2 AWARDS GIVEN BY MEN OVER 40 IN MIDDLESEX Female Plaintiff Male Plaintiff Medical Expenses $ 54,198 $ 72,584 NS Diminished Earning Capacity $ 1,101,543 $ 1,209,208 t = -1.9667; p = .051 * Pain and Suffering $ 551,430 $ 763,253 t = -2.0326; p = .044 ** NS = Not Significant * = Marginally Significant ** = Significant

TABLE 3 AWARDS GIVEN BY WOMEN OVER 40 IN MIDDLESEX Female Plaintiff Male Plaintiff Medical Expenses $ 60,337 $ 61,918 NS Diminished Earning Capacity $ 1,117,849 $ 1,155,555 NS Pain and Suffering $ 750,908 $ 933,486 NS NS = Not Significant * = Marginally Significant ** = Significant FOR ADDITIONAL DATA SEE METHODOLOGY SECTION.

In fixing [the value of such services] you must take into consideration the circumstances of [the decedent's] husband and children; the services she would have performed for her husband and children in the care and management of the family home, finances and health; the intellectual, moral and physical guidance and assistance she would have given the children had she lived. In fixing the money value of the decedent to the widower and children you must consider what it would cost to pay for a substitute for her services, considering both the decedent's age and life expectancy and the age and life expectancy of her husband and each of her children.

These factors are highly significant for the welfare of the children and are thus critical considerations for the judge in deciding on a custody arrangement which minimizes disruption and fosters a healthy environment for the growth and development of the children.

REPRINT: Gender Bias Study of the Court System in Massachusetts ** The Gender Bias Study of the Court System in Massachusetts (Gender Bias Study) is an official report of the Massachusetts Supreme Judicial Court. In 1986, Chief Justice Edward F. Hennessey appointed the Gender Bias Study Committee to determine the extent and nature of gender bias in the Massachusetts judiciary and to make recommendations to promote equal treatment of men and women. The Gender Bias Study is the result of the committee's research.has published the Executive Summary, Family Law, and Civil Damage Awards sections of the Gender Bias Study in their original form. The Introduction, Domestic Violence and Sexual Assault, and Gender Bias in Counthouse Interactions sections can be found in volume 23 of Suffolk University Law Review.expresses its appreciation to Gladys E. Maged, Executive Director of the Committee for Gender Equality, and Lois Frankel, Assistant Director, for their assistance in publishing this material.[*745]Gender bias exists in many forms throughout the Massachusetts court system. Sexist language and behavior are still common, despite an increased understanding that these practices are wrong. Beyond these overt signs of bias, many practices and procedures exist that may not appear motivated by bias but nonetheless produce biased results.We found gender bias to be in operation when decisions made or actions taken were based on preconceived or stereotypical notions about the nature, role, or capacity of men and women. We observed the effect of myths and misconceptions about the economic and social realities of men's and women's lives and about the relative value of their work. Throughout this report the workings of bias are illustrated in statistical data, expert testimony, and first-hand accounts of people using the court system.In issuing this report, the Gender Bias Study Committee has completed the task set forth in its mandate: to determine the extent, nature, and consequences of gender bias in the judiciary and to make remedial recommendations to promote the fair and equal treatment of men and women. As we pursued this task over the last three years, our attention was increasingly drawn to the larger goal underlying our mandate: the elimination of gender bias in any form from our judicial system.[*746] We believe that this larger goal can and must be achieved. Time and resources are needed, but the most critical need is for committed leadership. This type of leadership has already been demonstrated by members of the judiciary, the legislature, and the bar in their support of our study. It is to this same source that we look for the courage and commitment to complete the job.Because we believe so strongly that this goal can and should be achieved we intend to propose to the Supreme Judicial Court the appointment of a Commission to Eliminate Gender Bias in the Courts. This Commission will monitor recommendations contained in this report and formulate guidelines, standards, and procedures needed to implement them. The Commission will foster educational efforts for the bar, judiciary, court employees, and the public, and it will work in cooperation with any other organization or department that is pursuing the goal of eliminating gender bias.This report endeavors to evaluate many aspects of how the courts function, including the performance of judges. But to paint a fair picture, it must be noted that the overwhelming majority of judges and other employees of the court system do a remarkable job in serving the public. The men and women working in the judiciary do so in the public interest. And they do this day in and day out, despite the many challenges and difficult conditions they face.Gender bias was not born in the court system. Rather, it reflects the prevailing attitudes and conditions of our society. Regardless of its genesis, the cost of gender bias is great. The court system must examine its role in continuing and contributing to gender bias, and it must work to correct the problems that exist. As you read this summary and the fuller documentation and discussion contained in our report, we believe that you will join us in the conviction that gender bias must be eliminated from our system.FAMILY LAWResearch studies from throughout the country indicate that women's standards of living consistently decrease more than men's after a divorce because women are left with a disproportionately large share of the cost of raising children and a disproportionately small share of the marriage's wealth and earning power. The economic inferiority of women after divorce is inseparable from the problems women experience in getting and enforcing support and alimony orders. The issue of custody is inseparable from the economic issues of family law, and here, too, women face discriminatory attitudes and actions.As we began our investigation of alimony, child support, and child custody, we noted that three aspects of the family law system consistently, and negatively, affect women. The first and most serious is lack of access to adequate legal representation: many women cannot obtain [*747] the assistance they need, particularly in the crucial first days and months after separation. Women without legal representation () find the system difficult to navigate, and free legal services are often not available to them. Private counsel may be unwilling to represent women because of the difficulty obtaining adequate awards of counsel fees during, and sometimes after, a trial. The second issue is repeated concern expressed by family law attorneys regarding the accuracy of financial data presented to the courts and the failure of the courts to take seriously the rules surrounding discovery in family law cases.Lastly, our investigation raised questions about the use of mediation, as practiced in the probate courts, to settle family cases. Mediation, as it is commonly defined outside the courts, presupposes equal parties and a neutral mediator. Our research indicates, however, that women involved in divorce proceedings are often not on an equal footing with men. Women involved in the probate court's mediation of cases are frequently at greater economic risk, have less information about marital assets, and less information about their legal rights. They are also much more likely than men to bargain away property to get their preferred custody or visitation arrangements. The inequality between the participants is particularly severe when one party has been physically abused by the other.Although we feel strongly that parties should not be forced to mediate inappropriate cases or be coerced into settlement, we recognize that the family service officers who handle cases in the probate court provide a crucial service to both the courts and the litigants. We support the practice of referring litigants to them within the guidelines that we have delineated in our recommendations.In the area of alimony, the Committee found that very few women receive alimony awards, while even fewer women receive awards that are adequate. While many alimony awards undervalue the contributions of the homemaker to the family, they also overvalue the earning potential of homemakers who have long been out of the labor market. Further, only a minority of the alimony awards ordered ever get collected. This has a grave impact on those most dependent on alimony, particularly older homemakers who no longer receive child support and who have decreased earning potential because of years spent on childrearing. These women must rely on their own resources to bring contempt action in cases of nonpayment, and they receive little help from the courts.We began our investigation of child custody aware of a common perception that there is a bias in favor of women in these decisions. Our research contradicted this perception. Although mothers more frequently get primary physical custody of children following divorce, this practice does not reflect bias but rather the agreement of the parties and the fact that, in most families, mothers have been the primary [*748] caretakers of children. Fathers who actively seek custody obtain either primary or jointcustody over 70% of the time. Reports indicate, however, that in some cases perceptions of gender bias may discourage fathers from seeking custody and stereotypes about fathers may sometimes affect case outcomes. In general, our evidence suggests that the courts hold higher standards for mothers than fathers in custody determinations.Family service officers, probate judges, and appellate judges all say that giving primary consideration to the parent who has been the primary caretaker and psychological parent is in the best interests of children. In practice, however, it appears that as soon as physical custody is contested, any weight given to a history of primary caretaking disappears. Mothers who have been primary caretakers throughout the child's life are subjected to differential and stricter scrutiny, and they may lose custody if the role of primary caretaker has been assumed, however briefly and for whatever reason, by someone else.Two other aspects of child custody determination raised concern for us. The presumption in favor of shared legal custody that is currently held by many family service officers can result in the awarding of shared legal custody in inappropriate circumstances. We also found that abuse targeted at the mother is not always seen as relevant to custody and visitation decisions. Our research indicates that witnessing, as well as personally experiencing, abuse within the family causes serious harm to children.Women seeking child support enforcement have frequently found themselves facing an unresponsive and sometimes hostile system. We are, however, currently in a transition period. The court and the Department of Revenue (DOR) are establishing a new system that promises to be well-coordinated and responsive. Our study identified some key issues to be resolved during the transition period. Nonpayment must be met with predictable, steadily escalating enforcement sanctions. The child support guidelines, which have led to increased child support orders, should be used consistently in all courts. The standard for modification of an order must be redefined. Currently, the standard is so strict that it denies women modifications to which they are entitled. The court and the Department of Revenue need adequate resources to complete this transition. The community has a role to play in holding the court and DOR to the promise of a more responsive and respectful system that is focused on serving parents seeking support.Even when these reforms are accomplished, however, it will not ensure adequate income for all families. Families will still suffer economic hardship when there just isn't enough income to support two households. A progressive family policy may need to include economic parenting supplements, tax code revisions, or other methods that ensure adequate income to children and fair treatment of both parents.[*749] RECOMMENDATIONS:VIOLENCEWomen are disproportionately affected by crimes of violence involving nonstrangers -- colleagues, friends, relatives, or husbands. Beyond the "personal" impact on the victim, the high incidence of violence against women by acquaintances and relatives raises significant legal issues which challenge the long-held presumption that such matters are best left to the private sector and outside the realm of the courts.In 1978, Massachusetts passed M.G.L. c. 209A, which provides that in emergency situations women may obtain orders mandating that their abusers, in a domestic situation, refrain from violence against them. The law makes this process as easy as possible, allowing women to obtain this relief on their own, without having to retain counsel, and allowing them to enter most courts in the state for these orders. Unfortunately, a disparity remains between the protection afforded to the victims by the statute and the actual manner in which the statute is being applied.The Committee was impressed to find that petitions for orders of protection under c. 209A are almost always granted. Judges are providing women with the immediate relief from abuse that is available under the statute. Nonetheless, the Committee discovered several areas where improvement is crucial to ensure that women have access to the full protection of the law.While the law allows for proceedings to be, litigants not represented by counsel or assisted by trained advocates are not always able to obtain child custody, support, or other benefits available under the statute. The problem is exacerbated when one party, usually the male respondent, is represented by counsel and the female petitioner is not.[*751] The Committee also found that women contend with barriers to full use of the statute when they are faced with insensitive treatment and misleading information regarding their rights under the law. This problem is particularly acute when they get unclear or wrong information about the jurisdictions of the probate and the district courts.The Committee is also concerned that domestic abuse cases in the civil and criminal arena may not receive the emphasis they merit and that this underlies the poor coordination between the courts and law enforcement agencies. This results in delays in the service of abuse prevention orders. Likewise, we heard many reports that the courts are not using the sanctions available to them to punish the violation of orders in a way that would clearly and publicly convey the message that abusive behavior is not acceptable. Further, judges' decisions should make clear that, just as the criminal law punishes violence occurring among strangers, the criminal law will also punish violence committed among people who are related or share a household.In our research on sexual assault, the Committee discovered that the "rape shield" law is being correctly applied by judges and that sexual assault cases are generally treated very seriously by prosecutors. The vast majority of sexual assault cases involve parties who know each other. While most people feel that these cases should be treated in the same manner as cases of sexual assault by strangers, it appears that this does not always occur. Sentences seem to be set lower in cases where the victim and her assailant were acquainted. Stereotypes about relationships and victims' requests for lower sentencing in cases of acquaintance assault were both offered as reasons for lower sentences.According to survey responses, attorneys believe that jurors expect more corroboration in sexual assault cases than in other felonies of like seriousness and that jurors accord sexual assault victims less credibility than they do victims of other felonies of like seriousness. It is less clearcut how judges perceive victims. Although half of those surveyed agreed that judges accord sexual assault victims the same credibility as victims of other serious felonies, the responses of the rest of the attorneys differed depending on the sex of the respondent.A significant difference of opinion exists between the legal community and the rape crisis community regarding case dismissal policies. Police and prosecutors contend that virtually the only reason for dismissal of sexual assault cases is the victim's unwillingness to prosecute, while rape crisis counselors cite lack of prosecutorial zeal and discouragement of victims bY prosecutors as the chief reasons for dismissal. All parties agree that the victim/witness assistance programs provide much encouragement and support to victims.It is clear that the judicial system has become increasingly sensitive to the unique issues sexual assault cases present. It is equally clear that room for improvement remains. In order to encourage victims to report [*752] and prosecute these cases, it is important to eradicate the perception of the courthous as a hostile environment with few allies for the sexual assault victim. The legal system must remain focused on a greater expectation and vision that challenges the system to be vigilant in its aim for justice unfettered by society's prejudices.RECOMMENDATIONSCRIMINAL AND JUVENILE JUSTICEThe special needs and circumstances of female offenders pose unique challenges to the criminal justice system. Where the treatment of young girls does not respond to the demands of their lives and the treatment of adult female offenders does not acknowledge the ways in which their criminal histories, the crimes they commit, and the responsibilities in their lives are different from those of men, the system is biased against the women who come before it.In the Massachusetts juvenile justice system, status offenders such as runaways are serviced by the Department of Social Services (DSS), delinquent offenders by the Department of Youth Services (DYS). Although there are serious problems facing both male and female juveniles, testimony, surveys, and statistics all support the conclusion that girls are disadvantaged to a greater extent than boys in the area of DSS and DYS placement and service.Testimony indicates that service providers view girls as harder to handle than boys. Thus, even though in certain age categories more girls than boys require services, providers offer fewer programs for girls. Judges, in turn, commit a disproportionately high percentage of girls to DYS in the hope that the girls can be secured, stabilized, and provided with services not available from DSS. They base commitment either on contempt charges in CHINS (Children in Need of Services) cases or on detention for a minor delinquency offense. Unfortunately, our evidence indicates that often girls do not get the services they need at that point either, since the majority of the programs offered by DYS are male-oriented. In essence, girls are being detained to a greater extent than is merited in the hope that they can be helped, yet at no point [*754] are services sufficient to give them the help they require. Testimony from representatives of DYS reveals that the department is attempting to deal with the lack of female-oriented programs and facilities.Our study of adults in criminal justice focused on bail, sentencing, and probation and was limited to preliminary questions. The criminal histories, crimes committed, and life responsibilities of women and men are very different, so a thorough study of gender bias in these processes would require an in-depth study of individual cases. Since limited resources precluded such a study, the Committee focused its bail, sentencing, and probation research on discrete issues that might affect the treatment of female offenders during the various phases of the judicial process. Our study of the incarceration of women investigated the Massachusetts Correctional Institution (MCI) at Framingham.In the areas of bail and sentencing, the Committee focused on two discrete issues related to family responsibilities: child-care and financial responsibility. Controlling only for the impact of these two variables on the treatment of male and female offenders, attorneys' responses suggest that they are not the major determinants influencing judicial decision making in the areas of bail setting and sentencing. Though our data regarding these variables are informative, other factors must be considered to thoroughly understand differences in the experiences of men and women at the bail-setting and sentencing stages.The Committee also looked at the effect of substance abuse treatment needs on bail and sentencing. Judges reportedly recognize the needs of women to the same extent as those of men. The lack of appropriate programs may, however, lead to different sentencing patterns between male and female offenders, though attorneys surveyed do not agree on whether the lack of programs results in higher incarceration rates for women or for men.Finally, many attorneys reported that paternalistic statements are made to women in the sentencing process that are not made to men. This demonstrates that some judges still have sexist notions regarding the role of women.The Committee focused its study of women's experiences with probation on the risk/needs classification system. Apparently, the original risk/need classification system was based on a model of the male probationer. The Committee commends the Office of Commissioner of Probation for taking a look at this model and at the women who are subject to it. However, several areas remain where there is a risk of punishing women for their inability to conform to a system that may not take into consideration the ways in which their lives are different from men's. In particular, the factor of employment raises the question of whether the supervision levels and plans of female probationers, who often have child-care responsibilities and are unable to work outside of the home, [*755] require them to meet more stringent requirements of supervision than male probationers.In addition, we are concerned that women have slightly longer supervisory periods than men. The length of these periods is inconsistent with the fact that women commit fewer crimes against the person and have fewer prior court appearances than men.Finally, the personal and family issues faced by the typical female probationer appear significantly greater in number and complexity than those of the typical male probationer. Among other consequences, this may result in the female offender having to contend with a myriad of bureaucracies and agencies. This can be overwhelming and self-defeating.In regards to women who are incarcerated, the most glaring disadvantage to women is that almost all female offenders and detainees are incarcerated at one central facility, MCI-Framingham, whereas men awaiting trial or serving shorter county sentences are housed in local county facilities. Only a small number of women are at other state or county facilities.The Awaiting Trial Unit at MCI-Framingham, which is under the auspices of the courts, has held women under deplorable and dangerously overcrowded conditions for years. Because women are held at one centralized facility, rather than at localized facilities, they are at a significant disadvantage to similarly situated men who are held in county facilities much closer to their home communities. This results in severe limitations on women's access to legal assistance, bail review, enrollment in community-based programs, and visitation with children, family, and community contacts. Desperately needed health services and treatment programs are also limited by this situation.RECOMMENDATIONS:CIVIL DAMAGE AWARDSOur research tried to determine if the amount of damages awarded in civil actions depends on whether the plaintiff is male or female. National surveys and the opinions of local personal injury attorneys indicate concern about the possibility of bias in these awards. To obtain objective data from Massachusetts jurors, we surveyed people called for [*757] jury duty about the awards they would give in a hypothetical personal injury case. The research was carefully controlled so that we could draw conclusions about the influence of the plaintiff's gender on the awards.There is no statistically significant difference between awards given to male and female plaintiffs when the responses to the jurors' survey are analyzed collectively. When juror responses are divided into groups, however, the influence of bias emerges. The data suggest that women respondents, no matter what age group, treated male plaintiffs and female plaintiffs the same. In contrast, men under forty gave the female plaintiff higher awards for medical expenses, while men over forty favored the male plaintiff in the awarding of damages for both diminished earning capacity and pain and suffering.We have come to some tentative conclusions about the presence and absence of gender bias among jurors hearing and deciding civil cases and recommend steps to be taken to ensure that bias does not affect jury decisions. But more research is essential if we are to achieve a fuller picture of how bias operates in this area.RECOMMENDATIONS:GENDER BIAS IN COURTHOUSE INTERACTIONSWomen today have opportunities and roles open to them that were undreamed of a hundred years ago. This is true in the court system, as it is throughout our society. Yet barriers and discrimination still exist. From their entrance into the courthouse and throughout their participation in the business of the courts, female litigants, witnesses, employees, and attorneys are faced with unnecessary and unacceptable obstacles that can be explained only in terms of their gender.Women in the Massachusetts courts, whether they be attorneys, litigants, [*758] witnesses, or employees, suffer discriminatory treatment at the hands of some male judges, attorneys, and employees. Although male attorneys emerged in our research as the worst offenders, we must also recognize the part that court employees play in making the courthouse environment an uncomfortable and sometimes hostile place for women. Although judges were reported to exhibit gender-biased behavior less often than other groups, their responsibility for setting the standards of behavior in the courthouse increases the impact of their actions. Judges are the role models and the authorities for attorneys and employees. Accordingly, the evidence of judicial bias is most disheartening.As litigants and witnesses, women are subjected to inappropriate terms of address, suggestive comments, unwanted touching, yelling, and verbal harassment. Women litigants who must bring their children to court are further burdened by the lack of day care facilities and flexibility in court schedules.Female attorneys are also subjected to conduct ranging from discriminatory treatment to sexual harassment; this conduct is especially pronounced toward minority attorneys. Female attorneys are also disadvantaged in the area of court appointments, where they are significantly underrepresented among attorneys appointed by the Trial Court and Committee for Public Counsel Services.This bias undermines the credibility of female attorneys, hampering them in their role as an advocate, and weakening female litigants' testimony. When women, in their diverse roles, are denied credibility because of their gender, the courts are seriously impaired in their ability to deliver justice to anyone in our society.During the course of our research we sometimes encountered perceptions that biased treatment of women in the courts is a trivial matter or that reports of this treatment are exaggerated. As the chapter on courtroom environment in this report illustrates, however, women have good cause to anticipate that they will be treated differently than men. Furthermore, biased attitudes do more than hurt feelings. They affect women's ability to function in the system, and they are linked to unjust outcomes.RECOMMENDATIONS:COURT PERSONNELThe work of the court system's employees is critical to the efficient operation of the courts and to the public's image of the judicial system. Because of this, we reviewed employment practices to determine which practices might indicate active discrimination. We were immediately [*760] struck by the significance of a key overriding condition that seriously affects all employees: job segregation.As is true throughout the American workplace, many workers in the Massachusetts courts labor in positions that are clearly dominated by either women or men. In the Trial Court, which employs more than 95% of the total court workforce, three-quarters of the job titles with four or more job-holders are held by over 70% men or over 70% women. Women account for 90% of the workers in clerical track jobs, while men dominate in the higher ranked positions.Although some progress has been made through the efforts of the Affirmative Action Office of the Chief Administrative Justice of the Trial Court, statistics on the proportion of women in the upper managerial positions show that there is still a long way to go. In addition to job segregation, we also analyzed several more specific features of the employment situation: compensation, promotions, appointed positions, and working conditions.In the area of employee compensation, we studied the Trial Court evaluation system devised by Arthur Young and Co. We found that although the system is consistently applied to the positions it covers, the male-dominated, high-paying position of court officer is not included in the system. Our research was not extensive enough to draw conclusions about whether values (which underlie the evaluation system) were assigned in a gender neutral way.In the area of promotional opportunities, our research shows that gender does not have a negative impact on the promotions of women through most of the clerical track, though there may be a barrier to access to the higher positions in that track. However, the substantial underrepresentation of women at the assistant clerk level suggests that they are impeded from advancing beyond the traditional clerical track in any meaningful numbers. Our research also found that race seems to have a negative impact on access to promotions. The condition and extent of employment records precluded a meaningful investigation into additional aspects of the promotions picture, as well as the related area of hiring.The Committee also investigated women's access to two appointed positions that are high in pay and prestige, those of judge and clerkmagistrate. Though only one out of ten judges is a woman, there has been notable progress toward increasing the number of women on the bench. The current governor, Michael S. Dukakis, and the Judicial Nominating Committee appear committed to this increase, though criteria for nomination could be better articulated and recruitment efforts could be improved. The position of clerk-magistrate shows no comparable progress, with the applicant pool and the resulting appointments remaining heavily male-dominated.Run-down and inadequate facilities mean that the working conditions [*761] of the Trial Court are, in general, unpleasant for all employees. But, women report that they face additional problems, specific to their gender, including sexual harassment, other disrespectful treatment, and disadvantageous application of work rules, policies, and assignments. Both women and men believe that the Trial Court should provide day-care facilities and institute job sharing and flexible working hours so as to facilitate the employment and retention of working parents.RECOMMENDATIONS:COMPLETING OUR TASKThe elimination of gender bias from the court system requires time and resources. As a first step, the Supreme Judicial Court should appoint a Commission to Eliminate Gender Bias in the Courts. This report makes many recommendations that entail change throughout the system. An ongoing body is needed to oversee their implementation. To be effective, this commission must be composed of active members and have staff support.But the work of the commission alone will not be enough. We need courageous and committed leadership coming from all levels of the court system. The courts and the legal community displayed this type [*762] of leadership when they chose to undertake the public self-examination entailed in this study. What is called for now is a continued commitment by the leaders of the judiciary, the bar, the legislature, and citizen's groups to see that the task is completed. The citizens of the Commonwealth deserve a court system free of gender bias. This is a goal we can and must achieve.OVERVIEWOur work in the subcommittee studying family law issues was motivated in part by the growing statistical evidence that women suffer tremendous negative economic consequences following the dissolution of a marriage. This evidence is so provocative that it led us to examine whether national data on the economic consequences of divorce are applicable to Massachusetts and, if so, whether gender bias in the family law system contributes to the precarious economic status of women after divorce.Research studies from throughout the country indicate that women's standards of living consistently decrease more than men's after a divorce, resulting in a tremendous difference between the lifestyles of women and those of their former husbands. In Vermont, for example, a recent study found that men's income went up 120% following divorce, while women's income decreased by 33% (Wishik, 1986). In California, a study of postdivorce income revealed that, for middle-income couples married ten years or less, the husband's per capita income was 83% higher than the wife's (the wife was generally the primary caretaker of children). For higher-income families, the discrepancy between men's and women's postdivorce per capita income was 144%. The same study indicated that with respect to standard of living, the woman's standard declined 73% in the year following divorce, while the man's increased by 42% (Weitzman, 1985). Another study using national data from 1969 to 1975 found that in the first year following divorce or separation, the family income of women dropped to 70% of their previous income. Over 40% of the women had their incomes drop by more than half, compared to only one-sixth of the men (Duncan and Hoffman, 1985).According to these studies, the drop in women's economic standing occurs because women are left with a disproportionately large share of the cost of raising children and a disproportionately small share of the marriage's wealth and earning power.The decline in women's standard of living after a divorce is one of the major reasons that female-headed households are now the fastest [*763] growing segment of the poverty population. Statistics gathered by our committee clearly show that Massachusetts is very much a part of the national trend toward poverty for families headed by women: n1The family law system is an important area in which to explore solutions to the problems of economically disadvantaged women. Although the causes of women's desperate economic conditions are complex and deeply ingrained in our society, the courts must examine whether they play a role in continuing and contributing to women's inferior economic and social status. Divorce is a financial disaster for most low or middle-income families, and supporting two households on the income that previously supported only one can strain the resources of all family members. While committee members realize that the negative consequences of divorce are felt by both husband and wife, the task before the Committee was to examine whether the consequences of divorce have anegative impact on either men or women. Members of the Subcommittee on Gender and Economics examined court practices regarding custody, child support, alimony, and property division to isolate patterns of behavior that disadvantage women and to examine the results of this behavior on the economic status of women. We found that women face problems in the family law system that men do not and that these problems are linked to gender bias. We believe that the economic inferiority of women after divorce is inseparable from the problems women experience in getting and enforcing support and alimony orders and that those involved in the family law system must come up with solutions to the problems caused by systemic gender bias.Although each report in the family law section details specific ways in which gender bias occurs in the areas of custody, child support, and alimony, subcommittee members were struck by three overriding issues that consistently, and negatively, affect women in all areas of the family law system. These include: access to legal counsel; accuracy of financial [*764] data; and mediation in the probate courts. (When using the term "probate court," we are referring to the Probate and Family Court Department of the Trial Court.) Because these issues are pervasive throughout the system, we thought it crucial to highlight them at the beginning of the family law report and to recommend ways to deal with the problems raised.ACCESS TO LEGAL COUNSELlitigationThere is widespread agreement among attorneys and litigants that women who try to resolve problems in the probate courtencounter many more difficulties than do those who are represented by counsel. Both family service officers n3 and attorneys in focus groups reported a recent increase infemale clients, an increase that they believe the system is unprepared to deal with. Why this increase? As one public hearing witness put it, "Why do I and other mothers attempt to represent ourselves? The answer is simple. We have no funds, and the legal professionals have no services to offer low-income non-AFDC recipients." Reports from the litigant meetings confirmed that women lack information about court processes, how to get what they need from the courts, and how to get help with their legal problems. n4 An overriding [*765] theme that became apparent from the litigant meetings is women's lack of knowledge of how the system functions, what their options are within the system, and how and where to get counsel or other information pertaining to their rights as litigants. As one Boston attorney noted in public hearing testimony, a woman may be able to file papers in the probate court, but she may not know that she must serve process. Even if she gets process served, she may wait for weeks or months for a hearing because she does not know that she has the burden of marking up the case for trial.According to attorneys and family service officers, a particular problemwomen experience is lack of assistance and hostile attitudes from court personnel, especially assistant registers and assistant clerks. Several Worcester attorneys said at a focus group meeting that some assistant registers view it as their job to set up barriers betweenclients and judges. While such behavior occurs withclients in general, attorneys feel that the problem is particularly acute forwomen. Not only are women clients treated disrespectfully, but, according to family law attorneys, "they are often given the wrong information." These difficulties contribute to the feelings of powerlessness that many women experience as part of their family's breakup.At a litigant group meeting, one woman discussed her efforts taking her caseto the Supreme Judicial Court (SJC). While this litigant had a successful outcome at the SJC, she encountered harassment at the lower court levels, including being denied copies of her court papers, getting summoned to court from her job without advance notice, and receiving denigrating comments from court personnel. These problems were compounded by the psychological cost of pursuing support from a man who frequently changed jobs and earned below his capacity.One witness pointed to the utility ofclerks in the federal court and of housing specialists in the housing court, and wondered why the probate courts did not employ similar people to assistlitigants. n5Free legal servicesThe focus group of legal services advocates revealed that in many parts of the state no legal services staff lawyers work on family law cases. Most legal services programs rely on private attorneys to handle [*766] the cases. This practice has a strong negative impact on access to legal counsel. In the four westernmost counties, for example, no staff attorneys handle family law cases; the waiting list for alawyer can be up to two years. In addition, all legal services programs have stringent criteria for the cases they will accept. In Boston, for example, only primary caretakers in custody disputes are represented. n6 Private attorneys often limit the types of cases they will handle; in some areas, they will handle only uncontested divorces.Women's poverty is linked to unavailability of quick legal assistance. As one lawyer testified at a public hearing, "In our experience, it has been those first few days or weeks following a separation where legal assistance is most critical to the economic safeguard of a woman and her children. With the assistance of counsel a recently separated woman could file for separate support or a divorce with a request for support. A speedy request for a support or custody order would enable women to maintain or at least stabilize their living situations pending a full hearing." n7Attorneys' fees for private counselIn the family law survey, in focus group meetings, and in public hearing testimony, attorneys consistently reported that adequate counsel fees are not ordered in advance by judges, decreasing the incentive to represent female clients, who almost always have fewer resources than men. Eighty-five percent of the lawyers responding to the family law survey said that courts rarely or never award adequate counsel fees in advance to the spouse unable to afford fees, while 68% reported that judges rarely or never award adequate expert witness fees, either during or at the close of a case. One attorney from western Massachusetts related at the Springfield public hearing that in the 300 times she had applied for counsel or expert fees in advance, she was awarded a fee only once. Adequate fees are almost never awarded during the pendency of litigation, meaning that attorneys must bear all of the costs of the case until after trial.These sentiments were echoed in the attorney focus group in Boston, where participants stated that attorneys' fee decisions can deny effective representation to women, particularly in the area of discovery. These lawyers said that judges do not understand the economics of current law practice. As a legal services lawyer testified, attorneys' fees "is a mechanism which could provide some representation to women from middle-income families. However, it is rare that an attorney in private practice will accept a domestic relations case in anticipation of court [*767] awarded fees and costs and rarer still that a court will order payment of costs in the absence of the need for sanctions."Attorneys' comments were corroborated by data from our court records study. In the cases examined, fees generally were not awarded when sought, and several cases revealed one party's difficulty affording counsel fees. n8RECOMMENDATIONSACCURACY OF FINANCIAL DATAWe received a good deal of evidence indicating that the financial statements relied upon by the probate courts for determining financial [*768] awards are not sufficiently reliable. Since the financial awards affected by inaccurate financial statements often include child support, this is a situation that has a significant impact not only on women, but also on their dependent children. Although family service officers participating in focus groups differed in their assessment of how accurate financial statements are, all felt that some percentage are inaccurate. Family service officers also noted that filling out the statements can be very confusing, particularly forlitigants, and they suggested that the instructions be revised and clarified.Family law attorneys agreed with family service officers that financial statements are difficult to fill out, but they were more consistent in their view that financial statements have a low degree of accuracy. In response to the family law survey, only 35% of the attorneys stated that men's financial statements are always accurate, while 65% believe the same of women's statements. Attorneys in focus groups also noted that the current financial statements are incomplete and do not include such important assets as pensions. In the cases studied in the court record survey, a number of judges specifically highlighted the inaccuracy of financial statements. In short, informants from all categories generally feel that there are significant problems with the financial statements that are currently used by the courts.Financial statements do not represent the only financial data that are considered by the probate court, particularly in the area of equitable distribution. In the court record study, financial information presented by the parties was often found to be inaccurate or misrepresented. In one case, for instance, the husband stated that his pension was worth $ 19,000; the trial judge determined that it was worth much more. In another case, the trial judge labeled the tax return inaccurate. In two instances, the husbands were found to have withdrawn funds from joint accounts. And finally, in a case with a relatively large marital estate, the trial court stated that "there has been much controversy to the extent of the husband's income and assets . . . although the husband claims lack of income, he has managed to drive around in a Mercedes Benz automobile supplied by the company and to use his own airplane. What the husband shows on the books of the company as current income is not reflective of his ability to manipulate advances and loans." n9Questions about the accuracy of financial information submitted to the probate courts make the issue of discovery a crucial one. Yet, according to comments from attorneys speaking at focus groups and at public hearings, the courts do not take discovery seriously. Discovery requests are often ignored by opposing counsel, and the courts do not enforce them as they do in other nonfamily litigation. When discovery is not enforced, women are generally at the losing end of a fight to [*769] discover income and assets in which they should share. In the words of a Springfield attorney, "the women who have consulted me who feel that they have been victimized by a male conspiracy seem, in my experience, to be responding to their perception that the court declines to enforce full disclosure of assets with the stringency authorized by the rules. In the absence of complete and good-faith discovery procedures, there will be little in the nature of documentary evidence to substantiate (the wife's) belief that there is more money there somewhere!" As attorneys noted, this is particularly true in cases where the spouses are self-employed or in control of a business.RECOMMENDATIONSMEDIATION IN THE PROBATE COURTMediation has become an important part of the operation of the [*770] probate court. Some probate court judges commented to the Committee that, because of heavy caseloads, their courts simply could not function without the family service officers who aid in the settling of cases through mediation. Family law attorneys responding to our survey reported that 41% of their divorce cases in the last two years had involved mediation by family service officers or court clinics.In this report we comment only upon the system of "mediation" as it is practiced in the probate court. Mediation is used voluntarily in private settings and in various forms in several other courts. In the district court, for example, judges refer litigants, on a voluntary basis, to independent community-based mediators. We have not studied mediation as it is practiced in these settings, and therefore our comments apply only to the type of mediation practiced in the probate courts."Mediation" as it is generally practiced in the probate court is very different from "mediation" as it is described in the dispute resolution literature. One lawyer and mediator, for example, defines divorce mediation as "a voluntary, confidential process during which a neutral mediator helps a disputing couple reach agreement" (Fiske, 1986). Similar criteria are defined in the standards of the Massachusetts Association of Mediation Programs. These standards call for an impartial/neutral mediator, a confidential process, and participants who are informed about the process, voluntary in their participation, and able to determine a mutually agreeable outcome to the mediation. As comments from family law experts, attorneys, family service officers, and litigants reveal, what is called "mediation" in the probate court does not fit these criteria.There are several reasons for this discrepancy which can be explained by examining mediation as it is practiced in the probate court. First, although practices in different probate courts vary, mediation sessions are frequently mandatory, not voluntary. According to information gathered at family service officer and family law attorney focus groups, mediation often occurs in one of two ways. Parties must either meet with a mediator before they go before a judge or they are immediately ordered to mediation upon appearing before the judge. In neither instance is mediation voluntary on the part of the litigants.Second, family service officers mediate all kinds of cases, some of which may not be appropriate for mediation. For example, several family service officers participating in focus groups reported that they are asked by judges to mediate Abuse Prevention Act cases even though they themselves feel that these cases are inappropriate for mediation. Family service officers were also concerned that, although they do not have the legal and financial background to resolve disputes concerning the division of assets, they are increasingly being asked to handle cases involving complex economic cases. Several judges raised the same concern [*771] about family service officers handling these matters because they feel division of assets requires the input of a lawyer.Third, mediation in the probate court is conducted under severe constraints. Family service officers generally deal with a case only once, on the day it is scheduled forhearing, contempt or trial. Thus, there is no opportunity for parties to fully think about their needs nor to consider the long-term implications of what they might agree to. n12 Fourth, family service officers often are required to act as investigators and mediators in the same case or to reveal to the judge what transpired in mediation. Family service officers may explain this to litigants at the start of the mediation, but the loss of confidentiality is still a serious distinction from the usual mediation model. Fifth, family service officers are sometimes required by the court to give their recommendation on how the case should be decided; thus, they lose their neutral role. Sixth, and most important, "mediation" in the probate court has a particular goal. According to attorneys in the focus group sessions, the purpose of mediation is to dispose of the issues quickly so that a full judicial hearing is not necessary. A Worcester attorney described the effects that this dynamic can have on some cases:Not all family service officers behave as described above. Judges comment that many family service officers work hard to maintain a balance between the needs of the parties involved in mediation and the goal of reaching a stipulation or partial agreement. Meeting with a family service officer during the mediation process fulfills several important functions for the courts. These include: assessing the extent of agreement/disagreement in a case; allowing parties to vent emotions and clarify issues; and encouraging use of additional legal/social/psychological services. But these purposes can be lost if the desire to reach a settlement dominates the mediation situation. Comments from family service officers indicate that the pressure to settle cases is a real one. Family service officers feel pressure from judges to settle cases, and they tend to believe that their effectiveness as a family service officer will be based on how many cases they can settle. Judges, on the other hand, convey pressure to settle because they are feeling the pressure of the backlog and the press of new cases.[*772] As critical as caseload pressure is, it does not justify the maintenance of a system that systematically disadvantages people because of their gender. Our research indicates that the current practice of "mediation" in the probate court may indeed have that effect. An attorney in a Boston focus group commented that, when the goal of court-practiced mediation is to reachsettlement, "mediation allows the stronger, more powerful person to hold firm while the weaker person concedes more and more." The contention that mediators in the probate court sometimes coerce settlement, and that this practice may not affect both sides equally, is supported by the reasoning of a male litigant who defended mediation at the Boston litigants' meeting: "Mandatory mediation can be useful. When, people find a way to work things out" [emphasis added]. n13A process that empowers the already powerful is gender biased, for under current social conditions, the more powerful person is likely to be male. As Barbara Hauser, L.I.C.S.W., director of the Family Service Clinic at Middlesex Probate Court, testified:Attorneys pointed out other ways in which women are disadvantaged in the mediation process. The responses to the family law attorney survey clearly indicate that women are more likely than men to bargain away property to get their preferred custody or visitation arrangements. An attorney testifying on behalf of Greater Boston Legal Services observed, "Women who are afraid cannot mediate, especially regarding child support . . . . The woman, especially if unrepresented, is probably not likely to know what a fair support order should be. And in our experience few of the mediators give her any indication of what the guideline amounts would be." The attorney further testified that when a woman "is desperate to keep custody she is not generally in an equal bargaining position, so will bargain away all of her other rights to keep custody." Attorneys also noted that women frequently are at greater economic risk, have less information about marital assets, and less information about their legal rights.[*773] The inequality between the participants is particularly severe when one party has been physically abused by the other. This inequality creates problems whenever the victim is told to mediate issues with her batterer, not merely when she is told she must negotiate with her batterer about her physical safety. n15 "In [battering] cases I often have seen women sign agreements that are simply unconscionable because they want to avoid confrontation with the man," one Worcester attorney stated. Some family service officers agreed. "It's scary because a woman will be willing to take less to get out of the situation because of the danger. She's not looking out for her long-term financial interest." While it is at the temporary orders stage that mediation usually occurs, orders established at that time often influence the outcome of the permanent orders and thus assume a larger importance.The unequal position of women in mediation can lead to unequal outcomes. Attorneys responding to the family law survey reported that men are more likely to be favored in custody and financial arrangements made through mediation than they are in custody and financial arrangements arrived at without mediation. n16 Recent research provides additional indications that women may be disadvantaged in divorce mediation. One study compared divorce settlements in three New York counties reached through three different dispute resolution mechanisms: judicially assisted, attorney negotiated, and privately mediated (Ray, 1988). It found that the sampled mediated cases reported the lowest percentage of agreements containing child support obligations for all types of custodial arrangements and significantly fewer with child support in joint custody cases. n17 The author concluded:Other researchers whose prior writings have been very supportive of mediation report the following results of an assessment of a [*774] mandatory, court-based mediation program in the Delaware Family Court (Pearson and Thoennes, 1985; Dingwall and Eekelaar, 1987). "Unlike cases processed in judicial forums, mediated child support levels are substantially lower than what would be expected based upon a rigorous application of the state's child support formula." Judicial awards were within +/- $ 10 (per month) of the guideline amount in 96% of the cases, and above the guideline amount in the few remaining cases. In contrast, fewer than half of the mediated support orders were within +/- $ 10 of the guideline. Almost one-fifth (18%) of the mediated awards were between $ 11-$ 49 below the guidelines, and nearly one-third (32%) were more than $ 50 below the guidelines. Moreover, the research did not find any particular benefits associated with this form of mediation. "Voluntary compliance with mediated agreements appears to be neither better nor worse than compliance with outcomes generated in judicial forums. Finally, interviews with divorcing parties exposed to mediation reveal little evidence of user satisfaction" (Pearson and Thoennes, 1988).CONCLUSIONApart from the troubling practical consequences of mediation as it is practiced in the probate court, there are troubling issues of principle. Mediation is essentially private. Public legal norms do not govern, and, because there is no record, judicial review is not possible. While these objections can be, and have been, voiced about mediation in general, the mediation of disputes in the probate court raises special concerns.First, it is troubling that although society is now recognizing that many of the problems affecting women -- domestic violence, lack of child support, inequitable distribution of assets after divorce -- are not purely private matters, women are still being told by the court that these are, indeed, family problems for them to work out with their husbands or ex-husbands: they do not belong before a judge. Few other classes of disputes are so routinely diverted from the court. Second, inequality of bargaining power is commonplace, and may be related to gender.Our recommendations are designed to ensure that parties are not forced to mediate inappropriate cases and are not coerced into settlement. This does not mean, however, that mandatory referral of cases to family service officers for prescreening n18 must stop or that family service officers should not serve as mediators. Family service officers provide a crucial service to both the courts and the litigants using the courts. Without their services the courts would be unable to handle [*775] many of the emergencies with which they are faced. None of our recommendations are meant to limit the ability of family service officers to collect information that judges often need to handle cases in an efficient and thorough manner. We do, however, believe that the process of "mediation" as it is currently practiced, that is, attempting to reach a settlement in a case, must be reformed.RECOMMENDATIONSALIMONY AND DIVISION OF PROPERTYSUMMARY OF FINDINGSAlimony awards and division of property are of obvious critical concern to those seeking a divorce; not only will they shape the futures of both the divorcing parties, but they will also have a direct impact on any minor children of the marriage. A number of research studies indicate that, although the goal of statutes governing alimony and property division is to effect equitable distribution of property and give adequate support to the spouse who needs it, this goal often is not met. Statistics show that after a divorce, the wife's standard of living usually drops, sometimes substantially, while the husband's standard of living rises (Weiss, 1984; Duncan and Hoffman, 1985; Weitzman, 1985).Aware of these national trends, the Committee used a number of methods to evaluate current judicial practice in Massachusetts in the areas of alimony awards and property division. The Committee specifically concentrated on such topics as the relationship between the new child support guidelines and alimony awards, the disposition of the marital home, pensions, and businesses, and the economic circumstances of women and men following divorce. We found that:1. In accordance with trends seen in other states, our data indicate that women generally experience a greater drop in standard of living after a divorce than do men. Although individual male litigants [*777] testified that they have been financially hurt by property dispositions in their divorces, the financial data gathered by the Committee show that, in fact, men's standard of living often improves after a divorce.2. The new child support guidelines have had a negative impact on alimony awards. Family law attorneys believe that in cases involving minor children, alimony is awarded less frequently than it was before the guidelines came into effect. In many instances, alimony is not awarded at all.3. According to U.S. Census Bureau data, the rate of compliance with alimony orders is very low. Our research indicates that the courts are not using adequate tools for enforcing alimony orders.4. When alimony is awarded, some awards do not appear to be based on a realistic understanding of the impact of lost career opportunities on future earnings or to properly take into account the sacrifice of earning potential many women have made in order to be the primary caretaker of the family.5. In divorces in which there are minor children, there is a relationship between the disposition of the home and the availability of other material assets. If other assets exist, the courts do not customarily order the marital home to be sold immediately. In cases in which there are few assets, however, the parties are often ordered to sell the home, leaving the primary caretaker -- usually the mother -- with the need to find new housing for herself and the children. In general, disposition of the marital home can raise difficult financial issues for both husband and wife.6. The treatment of pension and retirement rights and other business-related property interests in divorce cases may seriously disadvantage women because these assets are often ignored or undervalued.7. The failure or refusal of judges to award counsel fees or fees for expert witnesses in advance of or pending trial of a divorce proceeding disadvantages women since they generally are the parties with insufficient funds to retain an expert or even a private attorney.8. There are noteworthy discrepancies between attorneys' views of judicial practices in divorce cases and the judges' views of their own practices.METHODOLOGYThe Committee gathered data on alimony and property division through testimony at the public hearings; by using the family law section of the attorneys' survey, the family law attorney survey, and the probate section of the judges' survey; and through regional meetings and focus groups consisting of male and female attorneys, separate [*778] male and female litigant focus groups, and family service officers' groups.In addition, the Committee conducted a court records study designed to evaluate the application of the Massachusetts equitable distribution statute, M.G.L. c. 208, § 34. We analyzed 20 appellate level decisions from 1987; 11 were summary dispositions (these cases, from the Appeals Court, were analyzed in depth including extensive financial information), and 9 were reported cases decided by the Appeals Court or by the Supreme Judicial Court. n19The Committee recognizes that this sample represents a limited subset of divorces in Massachusetts. We believe, however, that one year of cases, carefully coded, provides sufficient data upon which to base an analysis of trial judges' application of c. 208, § 34, and to make some tentative assessments of the financial consequences of those decisions. We realize that any findings or conclusions which have been, or can be, drawn from this data are not necessarily representative of cases settled by agreement of the parties.ALIMONY AND PROPERTY DIVISION: LAW AND PROCEDUREIn Massachusetts, alimony and the division of a couple's property upon divorce are governed by statute M.G.L. c. 208, § 34, (1986 ed.), which lists a series of mandatory and discretionary factors to be considered by judges in determining alimony and property awards. The mandatory factors include: length of marriage, conduct of the parties during the marriage, age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, and opportunity for future acquisition of capital assets and income on the part of each party. The appellate courts have made clear that trial judges must consider all of the mandatory factors in arriving at a determination of alimony and property division in a divorce action. In addition, trial judges may consider the following discretionary factors: each party's contribution to the "acquisition, preservation or appreciation in value of their respective estates" and "the contribution of each of the parties as a homemaker to the family unit."Theoretically, c. 208, § 34, is designed to provide for equitable distribution of the marital estate. As the terms of the statute reveal, however, "equitable distribution" is very much a matter of individual judgment on the part of the trial judge. C. 208, § 34, provides that "Upon divorce or upon motion in an action brought at any time after a divorce, the court may make a judgment for either of the parties to pay [*779] alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other." Thus, judges have broad discretion in considering how much alimony, if any, should be awarded to either spouse and in defining an equitable property division. n20C. 208, § 34, is also silent on the specific purpose to be achieved by either an alimony award or the division of property. Case law has, however, set standards in these areas. According to case law, the goals of alimony and property division differ. The purpose of alimony is to provide economic support to a dependent spouse. In considering the issue of alimony, trial judges must focus on the dependent spouse's need of support and the ability of the supporting spouse to pay such support; they cannot focus on circumstances or factors unrelated to the economic condition of the parties. n21 The purpose of property division, on the other hand, is to recognize and compensate equitably the respective contributions of the parties to the marital partnership. n22 Unlike alimony awards, property settlements are not subject to modification (). n23DISCUSSION OF FINDINGSResearch studies from throughout the country indicate that the economic [*780] impact of divorce is very different for men than it is for women (see "Family Law Overview"). Our analysis of court records suggests that national trends regarding the impact of divorce on the party's postdivorce standard of living hold true for Massachusetts as well. To study the pre- and postdivorce standards of living of women and men, our consultant, Dr. Nancy L. Marshall, developed a method for comparison of standard of living relative to Census Bureau data. The family income prior to divorce was calculated for each of the eleven appellate cases for which financial data was analyzed in depth, and then the incomes of the woman and man after divorce were determined. "Income" included all disposable income described in the court records. In practice, this generally meant income from salary or social security and interest on savings accounts at 6% per year (see Table 1). Child support and alimony payments were added to the income of the party receiving the payments after the divorce and subtracted from the income of the party making those payments. For purposes of analysis it was assumed that support payments were received. This, of course, is not always the case. Tax consequences to each party were not considered in this calculation, and no adjustment was made for situations in which one party maintained mortgage payments on a house in which the other lived. The income figures provide a fairly good estimate of the standard of living for each family, even where they are not exact.Incomes for the families were compared to the Census Bureau's report of the U.S. median family income for families of the same size and in the same year as the income data were recorded. In 1985, for example, one family's income before divorce was $ 33,371 (see Table 1); there were five people in the family. The U.S. median income for a family of five in 1985 was $ 31,974. Therefore, this family's income was slightly above the median family predivorce income. The same procedures were followed for postdivorce income, using postdivorce family size. n24 Table 2 reports each family's pre- and postdivorce income as a percent of median income and presents the change in standard of living. The change in standard of living is calculated as the percent of median income predivorce minus the percent of median income postdivorce.Table 3 graphically represents the standards of living of women and men after divorce. The families are arranged from high predivorce standard of living to low predivorce standard of living, relative to median income. Theacross all divorces suggest findings similar to Weitzman's: women consistently experience a greater drop in standard of living than do men. Child support, alimony, and property awards do [*781] not maintain the standard of living for women after divorce, while men's standard of living may be reduced somewhat less or may actually increase postdivorce.Alimony is intended to provide support for a spouse whose ability to support herself or himself is insufficient. Because it is generally women who postpone their careers to be the family's primary caretaker -- and thus suffer a loss of earnings, both present and potential -- alimony awards are most frequently made to women. n25 Despite the differential earning capabilities of men and women following a divorce, however, the actual number of divorce cases in which alimony is awarded at all is quite small. This is true for the nation as a whole and also for the state. Nationwide, only 12.4% of the people divorced between 1980 and 1985 were awarded alimony, (U.S. Bureau of Census, 1989), while in Massachusetts, in divorcing families with minor children, alimony is awarded in only ten to twenty percent of the cases (Massachusetts Department of Revenue statistics). Indeed, attorneys responding to our family law survey indicate that they actually seek alimony in only a minority (29%) of their cases.These statistics are borne out by the findings of the Middlesex Divorce Research Group relitigation study. Analyzing 700 divorce cases in Middlesex County between 1978 and 1984, researchers found that in the 584 cases in which the mother had primary physical custody of the children, alimony (in conjunction with child support) was awarded in only 10% of the cases. Far more common was an award of child support only (48% of the cases).Evidence gathered by the Committee indicates that there is a relationship between the small percentage of alimony awards and the new child support guidelines. According to testimony from family law attorneys, one major effect of the guidelines has been a reduction in the number of cases in which alimony is given. Comments from judges and attorneys at the Massachusetts Bar Association's program on child support and alimony held in January 1989 suggest that a number of probate judges and lawyers believe that the child support provided under the guidelines actually constitutes family support and eliminates the need for alimony, at least during the years that there are minor children in the family. Comments from attorneys who participated in focus [*782] groups corroborate this perception. These attorneys are disturbed by the fact that some judges assume, without findings of fact, that the husband's contribution toward child support is the most that can be taken from him. Although it is legal services attorneys who feel that their clients are most affected by the negative impact of the child support guidelines on alimony, attorneys for higher-income clients also voiced their concern that "judges don't want to do the findings." These attorneys believe that without proper discovery and findings of fact the courts have no way of assessing how much a husband can truly afford to pay in child support and alimony.The assumption that child support satisfies the need for alimony appears to reflect a bias against women who postpone their careers and sacrifice their earning potential to care for their families. An award of child support with no alimony can have a highly negative impact on a primary caretaker at the point that her children reach eighteen.A case discussed by Worcester attorney (and now judge) Arline Rotman at a public hearing illustrates the problems of caretakers who receive child support and no alimony. The case involves a woman, married for twenty years, with three children. The woman had been at home raising the children for the majority of the marriage. Two years before the divorce, she had returned to work. At the time of the divorce, the wife was earning about $ 16,000, while the husband made approximately twice that amount, $ 30,000. The woman was awarded child support and no alimony. Since the last remaining child was close to eighteen, the child support was ordered for three years. As Judge Rotman notes, at the end of that time, the wife's income will still be about half of the husband's. "So, at the conclusion of a twenty-year marriage, when a woman has chosen to be a homemaker, she gets child support for a while, doesn't get alimony, and (after a few years) the man walks away with a termination of child support. He has $ 35,000 a year, and the woman has $ 18,000 a year. This is not taken into account, by the way, in property division, because that is seen as a separate matter. So the wife is double disadvantaged; she is not going to be able to accumulate as much (as the husband)."While it may be possible for women to seek alimony when child support ends, the result of such action is impossible to predict. Public hearing testimony and comments from family law attorneys indicate that many judges are reluctant to modify alimony awards. Indeed, attorneys noted in public hearing testimony that it is much more common for judges to modify alimony awards downward than to modify alimony awards upward, and 71% of the attorneys responding to the family law survey stated that judges frequently modify alimony awards downward in response to alimony enforcement actions. In addition, as one judge noted in written testimony to the Committee, the courts are seeing an alarming number of cases in which lawyers are signing off women's alimony [*783] rights forever in nonmerged agreements, without any consideration of the problems facing women who are primary caretakers of children. This is of crucial concern because nonmerged agreements are generally not modifiable.Aside from the issues that confront women once child support ends, there are also problems facing women during the children's minority. These problems are especially critical for mothers of young children who devote most of their physical and psychological energy to caring for their families. Child support does not, in fact, meet a woman's needs separate from her children's. These needs include not only such items as clothing and food, but also educational and training expenses often necessary for a mother to procure future employment.Alimony awards are not only infrequent, they are also difficult to collect. According to 1981 nationwide statistics, only 43% of the women who were awarded alimony received the full payment due them, while 33% received no payment at all. This percentage improved slightly in 1985, but still remained high, with 27% of those awarded alimony receiving no money (U.S. Census Bureau). Although these numbers are similar to the compliance rates for child support (see "Child Support"), the national and state responses to alimony enforcement and child support enforcement are quite different. While federal and state legislatures have responded to the low child support compliance rates with legislation