June 1, 2017
Written by Lynne C. Halem
Passed in November of 2011, the Act Reforming Alimony went into effect in March of 2012. Many heralded the reform as the dawn of a new era, yet reaction to the law differed widely, as did interpretation of its meaning and impact. Individuals faced with paying alimony applauded the introduction of definitive time periods, provisions for early termination of alimony, and an actual formula for the calculation of their obligation. Not surprisingly, alimony recipients were less sanguine, particularly individuals who were approaching retirement. And, not to be forgotten was the legal community, busy scrambling to decipher the law’s immediate impact on their divorcing clients and to interpret the law’s backward reach to the already divorced population.
All waited for the Supreme Judicial Court interpretations of the 2011 Act. The SJC declared the law to be proscriptive, applying to couples that divorced since the enactment of the Alimony law in March of 2012. With this proclamation was born one key group of dissenters— individuals divorced prior to March 2012 who were paying alimony. Ever since the 2015 SJC rulings, this group has being crying foul. They argue that the law was intended to redress the inequities of the old system, to provide justice for those who were saddled with the burden of paying alimony until death-do-us part. Last year a movement was launched to introduce a bill extending the terms and contingencies of the Alimony law –backwards as well as forward. Failing to get the bill passed in 2016, the group has mobilized again to push through their bill through this year– this time revising the bill in order to correct limitations on its retroactive application to couples divorced prior to March, 2012.
Yet for every group of dissenters, we can find another group who reject the dissenting motive and reasoning, in favor of their own grounded opinion. This group stands firm in believing that it would be an injustice to overturn deals that were struck, sometimes after years of wrangling and angst, and often, at significant expense. There are couples, they argue, who reached an agreement and thought it was settled. Sometimes in the process of negotiation, one party may have given up assets or other claims, for the security of long-term alimony. “ Is it fair,” they question,” to overturn one part of the ‘deal’ simply because the law was changed after they were divorced?” “How,” they ask, “can the law reach backwards, undoing previous settlements, and call this justice?”
Lest you think that dissension has focused only on those battling the timing (retroactive or proscriptive) for the Act Reforming Alimony, let me introduce you to another group—a group who has denounced the law from its inception. This is a group of individuals, primarily women, in long-term marriages with divorce occurring in their late fifties or sixties. This group has not coalesced into a coherent, formal action lobby. Indeed, it is not really a “group” in any sense of the word. Instead, these dissenters are typically lone individuals, who discover at the time of divorce, that the payment of alimony will terminate when their spouse has reached full social security retirement (somewhere between 65 and 67), regardless of the spouse’s actual retirement. If the spouse in fact does retire at this time, then an objection would be hard to mount. If, however, the spouse continues to work and, by doing so, he or she, is able to enjoy an enhanced life style, this is where the anger bubbles over. Last year a bill was introduced to deal with the extension of alimony for divorcing individuals in long-term marriage who were adversely affected by this termination of alimony, unrelated to the payor spouse’s actual retirement. The bill did not pass and has not been re-introduced.
It is not hard to find stories of unfairness voiced by “members” of these two groups. Individual incidents of injustice should, and do, elicit sympathetic responses. It is also not hard to understand that any law, regardless of the efforts of its well-intended framers, will impact negatively, even unfairly, on some of the individuals touched by its reach. Yet, couples do have personal power; they can address a particular inequity by reaching a different agreement; they can consider notions of fairness and equity and try to balance the scales. While this may sound like fairy tale goodness, perhaps a trait not held by the vast majority of divorcing individuals, I would argue, as a mediator, that individuals can and do recognize injustice and are indeed capable of fashioning an agreement that responds to personal needs and concerns and is fair.
The Act Reforming Alimony, regardless of its dissenters, regardless of current and future bills posed and even adopted, does not prevent couples from addressing justice for themselves and their family. And, even more to the point, this can and does occur when couples are helped to see the larger picture, to look beyond their present day anger and even fear, to consider the future financial implications, as well as the fairness, of their decisions. Lofty as this sounds, couples, even those who have trouble communicating, can achieve this objective and feel all the better for their accomplishment.
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