October 27, 2013 by Robert Franklin, Esq.
Here’s case history Number Two from the Boston Globe article on the uneven start the alimony reform law has made in Massachusetts (Boston Globe, 10/20/13). The new law went into effect on March 1, 2011 with the intention of bringing alimony law into the 20th century. That means it was meant to address the fact that women now mostly work for a living and, whether one does or doesn’t, the workplace is entirely open to them. So the law intends to encourage exes to support themselves and not expect the other to do the job. It all but does away with lifetime alimony, puts limits on the duration of payments, allows payers to retire at the federally-recognized retirement age of 66 and permits alimony orders to be suspended or terminated if a former spouse begins cohabiting with another partner.
As I said in my last piece, the reform fails to address the manner in which a payer’s income is established by the court. So courts may still impute income to a spouse who has none or whose earning ability is greatly reduced from times past. In extremely limited circumstances, that can be appropriate. If a former spouse looks to be voluntarily under-employed, imputing income can be the only way to come up with a reasonable figure. The problem of course comes from trying to figure out who’s voluntarily and who’s involuntarily unemployed. The fact is that if a person produces applications for employment in the field in which they have experience, and still isn’t employed, then I can’t see a judge imputing income to him/her.
But they do, and frequently. That’s how it was with Gary Young, the ex-husband profiled in the first part of the Globe piece. The man is now 67 years old – a year beyond retirement age – but the judge not only ignored his age, but the fact that he’d tried to get work, but couldn’t (as revealed by his numerous rejected applications). Judge Patricia Gorman simply assumed he could earn what he earned at the top of his career and based his alimony payments on that. That of course was outrageous on her part, but it does illustrate the article’s main point – that judges seem happy to ignore the plain language and obvious intent of the new law.
And so it is with the second case history, that of Bob Schwartz. The new law states in plain English that, if a person receiving alimony cohabits with another partner continually for three months or more, alimony “shall be suspended, reduced or terminated.” The judge in Schwartz’s case elected to ignore that part of the new law. Apparently that’s pretty common.
Schwartz and his wife, Debra, divorced in 2005, after 24 years of marriage. Schwartz was ordered to pay $63,000 a year in alimony. His former wife got their Framingham home; he got the business. They have two grown daughters.
A few months after the divorce, Debra Schwartz and her new partner bought a condo in Wayland, where they still live. Her partner is a software engineer who, according to court documents, earns $177,000 annually. In the 2012 Wayland Town Census, Debra is listed as a homemaker.
In short, Debra and her new partner have lived together continually for eight years, so, under the new law, Bob’s alimony payment to her should have been “suspended, reduced or terminated.” But it wasn’t. Why? The judge didn’t comply with the plain words of the law because he/she managed to interpret those words to apply only to cases in which the new partners began cohabiting after the effective date of the act. Where the judge got that idea from either the language of the act, the intention of the legislature or common sense, is anyone’s guess. But whatever the excuse, Schwartz is still paying his ex $52,500 per year, i.e. no change from the past.
In 2009, Bob Schwartz’s health services company began to suffer during the recession, and he and his business partners took pay cuts. Schwartz asked his former wife for a reduction in alimony. In 2010, through mediation, it was reduced to $52,500.
When the new alimony law went into effect, Schwartz filed for further modification of his payments. “The new law was supposed to provide me with relief because of cohabitation,” says Schwartz, 61. “It’s supposed to be three months, and they’ve been living together going on eight years.”…
When Bob Schwartz filed for modification a year ago, his former wife offered a $1 decrease, from $52,500 to $52,499.
Whatever stratagems judges and lawyers can think up for circumventing the plain language of the new law, experts on the matter say agree they’re wrong.
To the contrary, says David Lee, who was cochairman of the joint Boston and Massachusetts bar associations’ committees on alimony reform. The intent of the provision is clear. “It doesn’t say that alimony may be suspended, reduced, or terminated,” he says. “It says it shall be.”
Lee also says judges who have ruled that cohabitation counts only if the couple moved in together after the law went into effect are getting it wrong.
[Former chief justice of the Massachusetts Probate and Family Court, Paula] Carey agrees. “What was meant was that it should apply to anyone cohabitating for three months, whether they began it before or after March 1, 2012.”
Those obvious explications of the law did Bob Schwartz little good.
He remarried in 2010, and has been living in his new wife’s Sudbury home, which is now on the market. They cannot afford to keep it.
“She’s lived there 20 years, but I’ve been unable to contribute anything to the household, so she’s selling it,” he says. He says he is $175,000 in debt, and has a work contract with the new owners of his company only until November…
“My ex-wife is being supported by her partner, by me, and by my current wife,” Schwartz says, “and my ex is the only one of us who doesn’t get up to go to work in the morning.”
That’s about the size of it. One judge’s unbendable desire to privilege one party to an eight year old divorce is all it took to confound the plain meaning of alimony law. It was always intended to encourage both parties to engage in remunerative work and not rely on the other for support long after their marriage was over. The exact opposite is what’s happening in Schwartz’s case. And let’s not overlook the fact that he’s not the one paying all the freight. His current wife – a woman who never had a relationship with Debra – is also supporting his ex. I’d like the judge in his current case to explain how that makes sense.
I’ve said it before; we can change all the laws we want, but until we change the culture, little will actually change for those abused by the family court system. The Young and Schwartz cases are perfect examples. The law is not difficult to understand or apply, but the frank animus against husbands and fathers trumps the law in both cases. There’s an assumption on the part of many, many family court judges that husbands and fathers are per se wrongdoers in need of punishment. So they’re perfectly willing to ignore the law to do so.
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