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News
The chilling effect of state's divorce laws:
By Elizabeth Benedict - June 13, 2008
Globe Newspaper Company, Boston
FORGET KAFKA. Welcome to Massachusetts. In the 1980s, it was known as Taxachusetts. These days,
it's known as the state whose divorce laws are so out of date that many people decide against marrying
here - or marrying anyone anywhere whose alimony obligations originate here. I'm one of them.
Two divorce lawyers tell me that the state's laws are so extreme they have "a chilling effect on marriage."
Prenups offer no guarantees. Judges routinely ignore them.
Cathy Ortiz, a secretary in Fairhaven whose husband is out of work, was ordered in 2007 to make alimony
payments from her own paycheck to his ex-wife - who has a full-time job with benefits. The husband,
Ernest Ortiz, is suing the state, arguing that these laws are unconstitutional. Oral
arguments were heard yesterday in Appeals Court.
Alimony law is largely case law, not statute. Many legislators are shocked to hear the feudal details, unique
to Massachusetts. But not shocked enough to reform the law. The laws are gender neutral, but the facts
are not: 96 percent of alimony payers are men, who often must give 30 to 40 percent of gross earnings to
educated and sometimes employed women. Alimony does not automatically end or decline at retirement,
even after an ex-wife has gotten an equitable share of marital assets. This applies in no-fault divorces, to
the middle-class, and to millionaires.
Alimony is usually ordered until the recipient dies or remarries, even for couples in their 30s and 40s.
Judges who set time limits may be overruled on appeal. When children are involved, the court usually
awards only child support, about 30 percent of a father's income, which ends when children
turn 23. Then mothers frequently receive alimony at the same or higher levels, for life.
Many highly skilled workers who took time off to raise children - nurses, paralegals, financial analysts - are
often not expected to work again, even if they divorce at 40. Some judges push them to work again; many
don't.
Instead of remarrying, which would end their alimony, many women live with boyfriends and become the
lifelong charges of their ex-husbands - and, only in Massachusetts, of their ex-husbands' new wives,
whose resources are routinely and circuitously considered in determining alimony awards.
The case law is so murky, lawyers disagree on how it works. Some deny it happens. One says it's common,
another "an anomaly." Bottom line: Women who marry men with alimony obligations may have even paltry
earnings and assets considered when a husband loses a job or retires and tries to lower or end
his payments. In 2003 a second wife put her disabled 8-week-old child into daycare to get a menial job to
support her family and her husband's ex-wife - a nurse - when his business failed following 9/11. The court
refused them any relief.
In 2007, a group of modestly paid second wives whose incomes were directly used to calculate payments
were so incensed that they formed The 2nd Wives Club, a partner to Mass Alimony Reform. The groups
support HR 1567, modeled on California's law, which was introduced earlier this year to update and
codify the state's alimony rulings. A day of heartbreaking hearings turned up no opposition, but the bill was
sent for further "study," a polite form of death.
The Massachusetts and Boston Bar Associations have created a task force to study problems stemming
from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They
may eventually support new guidelines for judges, not new legislation, which would clarify
and simplify. They prefer ambiguity and case law, which produce more billable hours.
Beyond the injustice of divorce court without end, these laws create two classes of women: those
considered too fragile to work and those whose labor is necessary to help support them. In the home of
the country's preeminent women's colleges, and home to the most celebrated women in American history,
these laws need to change.
(Elizabeth Benedict is a novelist and journalist.)
By Elizabeth Benedict - June 13, 2008
Globe Newspaper Company, Boston
FORGET KAFKA. Welcome to Massachusetts. In the 1980s, it was known as Taxachusetts. These days,
it's known as the state whose divorce laws are so out of date that many people decide against marrying
here - or marrying anyone anywhere whose alimony obligations originate here. I'm one of them.
Two divorce lawyers tell me that the state's laws are so extreme they have "a chilling effect on marriage."
Prenups offer no guarantees. Judges routinely ignore them.
Cathy Ortiz, a secretary in Fairhaven whose husband is out of work, was ordered in 2007 to make alimony
payments from her own paycheck to his ex-wife - who has a full-time job with benefits. The husband,
Ernest Ortiz, is suing the state, arguing that these laws are unconstitutional. Oral
arguments were heard yesterday in Appeals Court.
Alimony law is largely case law, not statute. Many legislators are shocked to hear the feudal details, unique
to Massachusetts. But not shocked enough to reform the law. The laws are gender neutral, but the facts
are not: 96 percent of alimony payers are men, who often must give 30 to 40 percent of gross earnings to
educated and sometimes employed women. Alimony does not automatically end or decline at retirement,
even after an ex-wife has gotten an equitable share of marital assets. This applies in no-fault divorces, to
the middle-class, and to millionaires.
Alimony is usually ordered until the recipient dies or remarries, even for couples in their 30s and 40s.
Judges who set time limits may be overruled on appeal. When children are involved, the court usually
awards only child support, about 30 percent of a father's income, which ends when children
turn 23. Then mothers frequently receive alimony at the same or higher levels, for life.
Many highly skilled workers who took time off to raise children - nurses, paralegals, financial analysts - are
often not expected to work again, even if they divorce at 40. Some judges push them to work again; many
don't.
Instead of remarrying, which would end their alimony, many women live with boyfriends and become the
lifelong charges of their ex-husbands - and, only in Massachusetts, of their ex-husbands' new wives,
whose resources are routinely and circuitously considered in determining alimony awards.
The case law is so murky, lawyers disagree on how it works. Some deny it happens. One says it's common,
another "an anomaly." Bottom line: Women who marry men with alimony obligations may have even paltry
earnings and assets considered when a husband loses a job or retires and tries to lower or end
his payments. In 2003 a second wife put her disabled 8-week-old child into daycare to get a menial job to
support her family and her husband's ex-wife - a nurse - when his business failed following 9/11. The court
refused them any relief.
In 2007, a group of modestly paid second wives whose incomes were directly used to calculate payments
were so incensed that they formed The 2nd Wives Club, a partner to Mass Alimony Reform. The groups
support HR 1567, modeled on California's law, which was introduced earlier this year to update and
codify the state's alimony rulings. A day of heartbreaking hearings turned up no opposition, but the bill was
sent for further "study," a polite form of death.
The Massachusetts and Boston Bar Associations have created a task force to study problems stemming
from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They
may eventually support new guidelines for judges, not new legislation, which would clarify
and simplify. They prefer ambiguity and case law, which produce more billable hours.
Beyond the injustice of divorce court without end, these laws create two classes of women: those
considered too fragile to work and those whose labor is necessary to help support them. In the home of
the country's preeminent women's colleges, and home to the most celebrated women in American history,
these laws need to change.
(Elizabeth Benedict is a novelist and journalist.)
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