Editor's Note: Wendy Murphy teaches at New England Law School in Boston and is a former visiting scholar at Harvard Law School. She is a lawyer who specializes in representing women and children who have been victims of violence.
Story highlights
Wendy Murphy: New law dramatically changes support for non-working ex-spouses
She says strict rules determine the amount of maintenance, the duration and not the circumstances
Lifetime alimony is unfair, but very rare, she says. Changing the entire maintenance law is excessive
Murphy: Women who are unable to work may have no income at all
CNN
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If Massachusetts' strangely arcane alimony reform law becomes the law of the land, married women's financial well-being and security could be seriously jeopardized.
The law dramatically changes the way judges award support to non-working ex-spouses. It is written in gender-neutral terminology, but since 97% of the people applying for and needing maintenance are women, the impact on women will be much greater.
First, the (oversimplified) basics: The new law decides whether maintenance, if any, will be granted not on the basis of a variety of criteria – such as the amount of marriage contributions made by the non-working spouse – but on the basis of the number the number of years they lived together and how much money the working spouse earned during the marriage. And it won't last a lifetime. If the marriage lasts 15 years, a woman receives maintenance for a maximum of 10½ years.
It's madness. The Massachusetts legislature has effectively adopted a policy that says getting married is roughly equivalent to working in state government. The more years you log in, the higher your pension will be, and if you meet certain deadlines, you will receive a higher amount.
In particular, if the marriage lasts for a maximum of five years, the maintenance spouse will receive maintenance for a period equal to 50% of the number of months in which the couple was married. So if a couple stays married for two years, the spouse entitled to maintenance will receive maintenance for a maximum of twelve months. If the marriage has lasted at least 15 but less than 20 years, the spouse entitled to maintenance is entitled to maintenance for 80% of the number of months of marriage.
If it weren't such a dangerous bill, it might just be worth a few snarky comments about how people aren't widgets and human relationships shouldn't be subjected to mechanical rating systems. But this is a bill that has serious consequences and will affect women in ways that go beyond economic concerns.
For example, one woman told me that she was afraid of becoming homeless if her ex-husband invoked the new law to stop her support payments. She gave up her career in banking to stay home and raise the couple's child. When the child went to college, the husband filed for divorce. She lives on a modest alimony, but under the new law the payments will stop in two years. After leaving a career, she has no chance of being hired for a well-paying job in that career. A minimum wage job would pay less than welfare.
Victims of domestic violence face an inhumane decision. Those who fear becoming homeless if they leave an abusive spouse may feel pressured to remain in an abusive relationship in order to meet a certain lockdown period. At the same time, men who want to get out of the marriage inexpensively can appeal to the divorce court on the eve of the next exclusion period.
Click here for a position in favor of the new law: Final alimony payments
Similar bills have been proposed in other states, but women's groups have remained deafeningly silent, perhaps because some aspects of the new law seem fair, at least on the surface.
For example, a judge may consider a new partner's income when assessing the assets of a dependent spouse. In the past, a divorced woman who was granted maintenance would not lose it until she remarried. This led many women to simply move in with a man and benefit from his financial support, without his income being taken into account as part of their assets in a court assessment of whether their support needs have changed.
In such circumstances, lifetime alimony is terribly unfair. But it's also rare, especially these days. It does happen, but so rarely and usually in such unusual cases – when the alimony-seeking ex-spouse is financially desperate and unable to work – that it does not justify a restructuring of all alimony laws for all purposes.
Massachusetts divorce lawyer Elizabeth Clague says she has seen a judge award lifetime alimony only a few times in her 16-year career.
“The cases involved unusual circumstances. A woman lived in an emergency shelter; in another case, the husband had hidden assets,” Clague said. “Lifetime alimony is unfavorable in Massachusetts and has been for a long time.”
The judges ordered alimony under the previous, more flexible rule based on a holistic view of each individual case, rather than arbitrary principles that reward or punish stay-at-home spouses based on the years spent in the marriage.
Among other things, a mechanical approach to a woman's value completely ignores the value of a woman's lost career. For example, if she graduates from medical school and then stays home to raise children and care for her family, a judge should be able to take those lost opportunities and income into account.
Instead, the new law dictates that a woman's worth is based solely on the time she spent providing her husband with a certain income while cooking, meeting with teachers and taking the children to soccer practice.
While judges in Massachusetts retain some discretion to award alimony beyond the guidelines in unusual cases, the stated purpose of the new rule will force most judges to award reduced alimony awards simply based on a cumbersome calculation of numbers , years and percentages than the full appreciation of a woman.
Lifetime alimony was a problem, but the system largely corrected itself when judges stopped routinely ordering it. For the few men whose payments were unfair, a law imposing a more generous standard of review on appeal would have solved the problem.
The alimony reform law is too broad, and other states should be wary. Lawmakers seeking to please special interest groups should remember that they represent the public interest, not just the interests of wealthy men with lobbyists.
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