Till Death Do Us Pay
The last time the Massachusetts Bar Association and the Boston Bar Association worked on alimony reform, the proposal amounted to little more than adding the word “duration” to the language of the current statute. Such limited efforts aren’t surprising to Hitner, who wonders if attorneys who make their living trying alimony cases would voluntarily work against their own financial interests. Guy Ferro, the Connecticut family law attorney, says they won’t. Indeed, when a committee of the American Academy of Matrimonial Lawyers tried to draft alimony guidelines, other attorneys successfully pushed to spike that initiative. Ferro says the thinking was: “If a person can go to guidelines and plug in a number to show what they have to pay in alimony and for how long, what do they need lawyers for?”
Hitner thinks the same thing will likely happen to the local bar associations’ efforts. But that’s okay. He and his fellow alimony reformers have just gained another, potentially much more potent avenue for change.
It comes courtesy of a particularly charged example of Hitner’s horror stories, this one involving Rudolph Pierce, a former Massachusetts Superior Court judge who’d also found success lawyering in Washington, DC. After retiring from his practice, Pierce, who is now 67, asked for termination of the $110,000 alimony he was paying his ex-wife, Carneice, 65. But in September 2008, Middlesex Probate and Family Court Judge Leilah A. Keamy ruled against that request, telling him that given his extensive legal background, he was capable of earning more than his planned retirement income, which included Social Security and disbursements from his retirement account, which had been divided during the divorce. By taking on a few side jobs, the judge ruled, Pierce could easily continue to pay Carneice the reduced—but still not inconsiderable—sum of $42,000 a year.
At no point in her ruling did Keamy question Carneice’s decision, just weeks before the trial, to leave her $95,000-a-year job. She didn’t impute any significant income to Carneice at all. Instead, the judge decided Carneice needed the alimony to continue to support her lifestyle, which includes a 2008 BMW x5 SUV, a condo in DC, and a rental apartment in Brookline. (Carneice told the judge she hopes to get another job soon, though plans to retire in two years.)
Pierce appealed Keamy’s ruling to the Massachusetts Supreme Judicial Court, which agreed to hear the case this fall. It is the most significant alimony-related case the court has taken up in years. If it goes their way, the case could enact the limit advocates have sought, allowing payors to retire. More than that, it gives them a double-barreled shot at securing major alimony overhauls.
Of the half a dozen alimony recipients contacted for this article, only one was willing to talk. Betty O’Brien (who asked that her real name be withheld) lives on the South Shore, and receives $1,500 a week in alimony from her ex-husband, “Rob.” Last winter, Rob told the judge at his modification hearing that his construction business was failing due to the recession and he simply could not afford the payments. He spent two weeks in jail. O’Brien says she felt bad when that happened, but that it was his own fault.
“He made a great deal of money and, unfortunately, the economy turned, and that’s not my problem,” says O’Brien, who works part time at a local hospital. “[Rob and his second wife] went crazy financially and that’s not my problem, either. They are putting me in a very bad financial situation.”
She gets prickly when asked whether she deserves the $78,000 a year she receives in alimony—”I don’t have to give you the reasons”—but it’s clear she feels she’s earned it, that it’s a kind of back wages. “When we were married I gave him money. I inherited money. I worked very hard. I had to account for every penny I spent. We made money on the houses we bought. I supported the whole thing,” she says. “I don’t hold a grudge against either of them, but there are two sides to every story.”
O’Brien’s thinking dovetails with the argument most popular among defenders of the existing alimony system, who hold that the payments are just part of the standard division of assets that comes with a divorce. “The expectation is that the product of the marriage would be divided about equally,” says Ginsburg, the retired Middlesex judge. But in practice it’s rarely that simple. Retirement assets can’t be tapped until retirement age. The marital home is illiquid (or today, underwater) and throws off no income. “So what is the major asset that most people accumulate during a marriage?” says Ginsburg. “It’s earning capacity. That’s the major asset.” Never mind that the Internal Revenue Service doesn’t categorize things that way. If you want to treat ex-spouses equitably, the thinking goes, factoring in salary-earning potential has to be in-bounds.
Preserving that option is crucial to state Senator Cynthia Stone Creem, cochair of the judiciary committee—and, as such, the person in position to stop Massachusetts Alimony Reform’s efforts in their tracks. Her view is that any changes to the current statute should be limited to allowing for finite alimony, and nothing more. Off the Hill, Creem is a family lawyer who argues alimony cases, and she sees marriages as partnerships, ones that ought to compensate dependent spouses for making their exes the successes they are. “But for their spouses, they wouldn’t be where they are today,” she says. “They brought up their children or helped with their businesses or entertained their associates.” Creem is opposed to Hitner’s legislation, and, as judiciary cochair, has the power to kill it before the full Senate and House get a chance to vote. “It’s unfair to make it so difficult to get support,” says Creem. “This bill, it’s set up by people who basically want to eliminate alimony.”
Hitner denies that’s his goal. He thinks there’s a place for alimony, even in perpetuity, if a recipient is physically or emotionally unable to work. Which is indeed the reality for many women who were married in a different era—no one can fairly expect a newly single 60-year-old whose career was homemaker to readily support herself on her own.
The problem is that the Massachusetts system treats all dependent spouses as if they fall into that category, ignoring that these days, and especially in this state—where nearly two-thirds of families with children are dual-income—that’s rarely true. And so alimony is routinely awarded to women (and some men) who are fully capable of supporting themselves.
Defined the way it is now, the purpose of alimony in Massachusetts is not to help the recipient survive, but instead to maintain the lifestyle he or she had before the divorce. This is why exes like Carneice Pierce, who has proven she is more than capable of making over $90,000 a year in income, can still claim “need.” She in fact does need that $42,000 in alimony to maintain the upper-class habits she had when married. Massachusetts law says it is her right to expect it, and her former husband’s duty to provide it.
That makes the state’s alimony system one that not only punishes some men, but also takes a dim view of the women it’s supposed to help, enshrining biases that treat them as if it’s the 1950s and women are uneducated, unemployable traditional mother/homemakers who shouldn’t be stripped of the lifestyle to which they’ve grown accustomed. Actually, Ira Mark Ellman, a professor at Arizona State University’s law school and author of the American Law Institute’s recommendations on family law and alimony, would go further than that, having looked at our setup. “It’s like a leftover from the old gender-based laws, ‘women can’t work, we can’t put that obligation on them,'” he says. “It’s right out of 1850.”
The day after Hitner’s hearing in family court, he calls with news. Joan has signed an agreement that gives him back his stock in exchange for a cut of the profits of any eventual sale of the business. It also lowers his alimony payments by the amount Joan gets in Social Security, and eliminates them completely when he turns 65. For the first time since he and Joan separated in 1996, Hitner says, “it feels like there is a light at the end of the tunnel. I am free, or I will be soon.” It is fitting that after a decade, hundreds of thousands of dollars in legal bills, and weeks in front of judges, it was a private agreement, and not the court system, that put an end to the couple’s drama.
Hitner says he’s now more committed than ever to see that change comes for those still stuck in Massachusetts alimony hell. “I’m going to spend all the time I used to spend working on my own case working on getting reform passed. I write that last check on January 28, 2013. After that I can keep whatever I make. My life will be my own again.”
Kris Frieswick is a freelance writer living in the South End.