Archaic Alimony Laws: Is MA a Divorce Law Dinosaur?

By: Jeannie Greeley
July 27, 2008

In the legal landscape, Massachusetts has long been synonymous with progress, leading the country in landmark civil rights and complex criminal battles. But there's one area where lawyers and clients say the state is mired in the medieval, a victim of archaic laws that keep the Commonwealth out of step with the rest of the country. It has become the state's scarlet letter—an 'A' for alimony.

"Massachusetts is a minority that has vague, uncertain laws concerning spousal support," says Karen Tosh, a divorce litigator with more than 25 years of experience practicing in Massachusetts and other states.
"Massachusetts alimony is like winning the lottery." -Karen Tosh
According to Tosh, more than 40 states in the country adopted the Uniform Marriage and Divorce Act, which standardizes divorce protocols, including terms and conditions of a separation agreement and the division of property. Massachusetts was not one of them, leaving alimony subject to wide interpretation by family court judges who base decisions more on caselaw than specific guidelines, such as the ones that exist for child support. Some lawyers claim this can lead to lifetime alimony awards, which don't automatically terminate upon re-marriage or retirement.

"Massachusetts alimony is like winning the lottery," says Tosh. "You're just all set for life. That's typically not how other states view it. They view it as a short-term solution."

Other attorneys disagree, claiming that the laws allow for a case-by-case evaluation of each unique divorce that is ultimately best for all parties involved.

"Everyone seems to be up in arms about the current state of alimony," says Boston family law practitioner Steven Ryan of Witmer, Karp, Warner & Ryan. "The statute is designed to address all the different types of situations that are before the court every day. It's impossible to come up with a one-rule-fits-all type of analysis in alimony."

With the growing frustration in the family law arena, a joint task force between the Massachusetts and Boston Bar Associations has been formed to analyze the issue. However, attorneys involved caution that the group's current focus is only on marriages where no dependent children are involved.

"In that circumstance, there may be some benefit to having more consistency," admits Ryan. "But, ultimately, at the end of the day, I think it should be left to the discretion of the trial judge."

In lieu of clearer alimony guidelines, Ryan suggests some couples explore the option of a prenuptial agreement to protect their assets. Whereas once the agreements had to be "fair and reasonable" both at the time they were entered into and at the time of enforcement, the law now only requires that they be fair and reasonable at the time the agreements were signed, according to Ryan.

"That is a way to safeguard yourself," says Ryan. "The other way is to resign yourself that you are entering into a partnership, and everything that is acquired as a result of that partnership should be divided equitably. Marriage is an enormous responsibility, and it shouldn't be the state's responsibility to take care of divorced people."

Both attorneys suggest that, while lawyers toil to fix what some perceive as a flawed alimony system, couples consider options like mediation, conciliation, and collaborative law—where spouses and their attorneys agree in writing not to take the matter to court—to help smooth the process of divorce. The more difficult task, however, might be trying to deal in the business of emotions.

Esdaile, Barrett & Esdaile


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Raulerson, & Middleton


Sugarman



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