Till Death Do Us Pay

When an alimony case comes up before a judge, the focus is almost exclusively on the wealthier ex-spouse’s ability to shell out, and hardly ever on the recipient’s ability to fund his or her own needs. If the court believes a payor is intentionally underemployed in an attempt to lower alimony obligations, it will base the award on previous earnings history. In modification hearings, judges frequently count a second spouse’s income as part of “total household income” and then use that figure in determining whether the payor has enough income to keep paying alimony (a backhanded way of tapping into a second spouse’s income). But unlike in most states—and every other state in New England—here judges historically do not assume any income for the recipient, even if he or she is able to work but chooses not to. (In fact, Massachusetts’ alimony system doesn’t even conform with state rules for other areas of family law. In child support cases, recent reforms explicitly encourage the judge to impute potential income to a recipient if the judge believes the recipient is shirking higher-paying work.) Finally, when determining a payor’s ability to meet alimony obligations after retirement, judges can count the income from retirement accounts, including those already divided in half during the original divorce proceedings. This last precedent confuses even the judges who must abide by it. “The courts have said up until now that it’s not a double dip,” says Edward M. Ginsburg, a retired judge who heard alimony cases for 25 years in the Middlesex Probate and Family Court. “But it is a double dip.”

For all this, what really sticks in the craw of would-be reformers is that alimony in Massachusetts is so often a burden without end. While permanent alimony is frequently awarded nationwide for unions that lasted more than 20 years, judges in other New England states can set alimony duration, even for the longest marriages. New Hampshire, for example, tapers alimony over time to encourage a recipient to support him- or herself (judges there also take into account the recipient’s income in setting the payment level). Alimony in the Granite State is by definition transitional, says Margaret Kerouac, chair of the family law section of the New Hampshire Bar Association. “There is case law that specifically says it is not a lifelong profit-sharing plan,” she says. Not so in Massachusetts: The only way judges here will set a cutoff for alimony is if it is tied to a specific event, like the recipient’s remarriage, death, or new inheritance. And since judges cannot predict what a recipient’s financial circumstances will be at a point in the future, most simply award indefinite alimony and leave it to the payor to seek modification. The vast majority of judges who do want to set a duration get overturned on appeal, so few ever try.

“Massachusetts is unusual,” says Gaetano “Guy” Ferro, a family lawyer in Connecticut and past president of the American Academy of Matrimonial Lawyers. “They’re not consistent with the laws as I understand them anyplace else.” He laughs. “I think I’m going to tell my female clients to move there.”

When their case is finally called, Hitner, Joan, and their attorneys approach the table in front of Kaplan’s bench. They are old pros at this by now. After their three-day divorce trial in 1998, the couple waited almost a year for Middlesex Probate and Family Court Judge Sheila McGovern to rule on alimony and the disposition of their marital assets. In the interim, Joan sued Hitner in Superior Court for the profits on her 50 percent of the stock in his printing business. When McGovern at last ruled on their divorce case, she awarded Joan $865 a week in alimony until the Superior Court decided the profits question. Two and a half years after that, the Superior Court ruled that it was a probate matter, not a civil one, and threw the case back to McGovern…who died in November 2002, before she could give a final ruling. The couple had to start the process all over again with Judge Kaplan.

Hitner represented himself at his 2005 modification hearing. To get his alimony payments lowered, he needed to prove a material change in circumstances, so he brought his accountant as a witness and handed over tax returns, credit reports, and other financial papers that documented his troubles. No dice. Kaplan ruled that because Hitner had control over his own income, the documentation wasn’t credible, and the modification was denied. After Hitner filed for bankruptcy in late 2006, he had to borrow against his house to support his business and keep making his alimony payments.

Today’s hearing is short and, in the end, just as inconclusive as the last round. This time, Kaplan says the only way she’ll rule on the value of the contested company stock is if a credible witness testifies—for instance, she suggests, the trustee who worked on Hitner’s bankruptcy case. A moment later, though, Kaplan realizes she knows the trustee socially. She’ll have to recuse herself if Hitner calls him. Because the alternative, hiring a business appraiser, would cost $10,000 or more, Hitner says, his only real option is to go with the trustee, and go back to square one with another judge.

“People in my situation think they’re the only one. They’re like, ‘I had a bad lawyer, I had a bad judge,'” says Hitner following the hearing, sitting at the dining room table in his three-bedroom house in a manicured neighborhood in Marlborough. “But when I started my website, I got horror stories from all over. I said, ‘Wow, this is incredible!'”

Hitner has hung on to those horror stories, in the event they might prove potent ammunition on Beacon Hill. At his urging, Lincoln attorney Tim Taylor drafted legislation that Massachusetts Alimony Reform managed to get introduced during the 2007 legislative session, only to have it die in the judiciary committee. Updated legislation was introduced this spring by state Representative Steven M. Walsh, this time with 72 cosponsors. The bill takes language from the laws that exist in most of our neighboring states: It defines the purpose of alimony as transitional help for a divorcée to become financially independent. It caps alimony at half the length of the marriage (up to 12 years unless there are minor children in the home). It ends alimony when the payor reaches retirement age, but allows permanent alimony if the recipient is determined to be incapable of working. It prohibits counting a second spouse’s income toward alimony calculations.