UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
Attorney Scott R. Stevenson of Hingham, Massachusetts and Attorney Justin L. Kelsey, Esq. (one of the authors of this blog) created the Stevenson-Kelsey Spousal Support Calculator as a tool to enable family law practitioners to better advise their clients regarding the settlement of divorce cases where a primary issue is the proposed alimony payment from one spouse to the other.
There is not currently any “formula” for the calculation of the spousal support obligation (also referred to as “alimony”) that is endorsed by either the Massachusetts Legislature, a consensus of Massachusetts Probate and Family Court Justices, or even a consensus of Massachusetts family law practitioners.
There are many groups who are seeking more definitive changes in the alimony laws in Massachusetts, including groups of lawyers and judges, such as the Joint Alimony Task Force of the MBA and BBA, and also groups of concerned citizens such as Massachusetts Alimony Reform.
Unfortunatley, there are seemingly as many different opinions in the family law field as there are ways to interpret the broad language of MGL, Chapter 208, § 34. Section 34 is the Massachusetts statute relating to the award of spousal support which provides that, in determining the amount of alimony, if any, to be awarded to any one spouse from the other spouse, the Court shall consider: the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the nature and value of the property to be so assigned, the present and future needs of any dependent children of the marriage; and the Court may also consider: the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.
Not only are these factors numerous, they are in many ways subjective and the Judges are currently left with the difficult task of combining all of these factors to create an alimony order.
The purpose of the Stevenson-Kelsey Spousal Support Calculator is not to suggest that any one of the formulas presented herein is better than any other at approximating the required evaluation under current Mass. Gen. Laws. Ch. 208 § 34. However, the authors do believe that a more consistent approach to the calculation of the alimony obligation – based on quantifiable factors – can benefit the citizens of the Commonwealth of Massachusetts in coming to agreements more quickly and more fairly, thus ending the stresses and expense of divorce litigation sooner rather than later.
Therefore, while we do not endorse any of the specific alimony guideline formulas described herein, we do hope that reference to these formulas will assist family law practitioners in providing both their clients and the Court with increased guidance on appropriate sums for alimony or spousal support in Divorce Agreements.
Each of the formulas was developed by their respective authors after considered and learned debate, and at the very least, we believe that the family law bar and our clients can both learn from the result of that debate in other forums and apply what has been learned to the resolution of disputes in Massachusetts’ divorce litigation. It is in that spirit and with that purpose that we present the Stevenson-Kelsey Spousal Support Calculator.
NOTE:
To view and use the Stevenson-Kelsey Spousal Support Calculator please visit
www.kelseytrask.com/spousalsupport.htm, or you can obtain your own copy of the Stevenson-Kelsey Spousal Support Calculator for use on your own computer by submitting a request here.
Showing posts with label Massachusetts Legislature. Show all posts
Showing posts with label Massachusetts Legislature. Show all posts
Thursday, August 23, 2012
Thursday, April 12, 2012
It's a Trap!: The Massachusetts Alimony Debate
UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
Because of my involvement in the creation of the Divorce Spousal Support Calculator I am often asked if I think alimony in Massachusetts is fair.
Of course, this is a loaded question, and so my typical answer is that nothing in the law is "fair", it is simply our best efforts to be "fair and equitable." In creating the Calculator, however, I have already expressed a desire for greater consistency. This in itself is an admission that I would like to see improvement in the current statute.
Many others have expressed there displeasure with the current statute as well. As a result there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the statute. But how this debate is now framed is a trap. There is no right answer because the choices are both inadequate.
The Boston Business Journal (Dueling Alimony Bills Raise Hackles in Legal Circles), NECN, WBZ, the MetroWest Daily News, and even The Wall Street Journal have all covered the debate with varying degrees of impartiality. Many of these stories concentrate on two bills that have been presented in the Massachusetts Legislature. The House Bill No. 1785 would add numerous changes to the current statute, including limitations on duration, sunset provisions reducing alimony after five years, limitations on increases in alimony to specific circumstances, termination of alimony upon retirement of the payor or cohabitation of the recipient, and limitations on the courts' ability to consider cohabitation of the payor. The Senate Bill No. 1616 would add only the words "and duration" to the language specifying the powers of the courts to determine alimony.
The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. Although it is my experience that most Judges are fair in their rulings, the lack of firm direction in the statute forces many cases to trial that might otherwise have been settled. Much of the criticism of the Senate Bill centers around this issue of protracted and expensive litigation. Indeed, the proponent of the Senate Bill, Newton Senator, Cynthia Creem, has been attacked as having a conflict of interest because she practices family law, and could potentially benefit from increased litigation costs.
Unfortunately, this is the type of debate you receive when only two solutions are presented to a very complicated and diverse set of problems. There are multiple criticisms of the current statute. They include the fact that the statute doesn't limit the duration of alimony, encourages litigation of the issue of alimony by its vagueness, and that it fails to address numerous scenarios in which unfair results may occur (such as forcing a payor to continue support after retirement age or when the recipient is cohabitating).
The Senate Bill admittedly only addresses one of these issues, the issue of duration. But to say that it further encourages litigation is a mistake. The current state of the law in Massachusetts is that Judges to do not have the authority to limit the duration of alimony in a Judgment. This forces further litigation because a Modification action is necessary to end alimony in cases where temporary alimony was appropriate or retirement has changed the circumstances. Adding the duration language suggested in the Senate bill could avoid future litigation, by allowing Judge's to address this issue in the original order.
In contrast, the House Bill attempts to address many of these issues at once, but takes a very specific position with respect to each issue. Since many of the proponents of this bill are alimony payors themselves (such as those quoted in another BBJ article) their conflict of interest is obvious (as opposed to the supposed conflict of interest of Senator Creem).
There are multiple ways other than the changes described by House Bill No. 1785 that we could improve the law in Massachusetts without moving it too far in favor of the potential payors. For instance, Maine has a statute that defines different types of alimony, allowing a Judge to order transitional or reimbursement support in cases where long-term support may not be appropriate.
Similarly, the House Bill's failure to address the creation of a formula (or at least a maximum), as recommended by the AAML, will leave us with the same problems of ongoing litigation. The House Bill might solve the problems of some of its proponents, but it is not going to reduce the litigation of most alimony cases which will still require the input of a Judge to decide the ultimate amount of spousal support payments.
This is why it's a trap to ask any experienced practitioner to choose between Option A (the House Bill) and Option B (the Senate Bill).
Whether or not changes to the statute favor the recipient or the payor, true reform of the alimony statute should provide consistency. Therefore, the most fair way to amend the statute would be to include both a durational component and a formula for calculating the appropriate amount of alimony, while still allowing Judges to vary from the presumption if they make findings that a specific factor (as suggested by the AAML) warrants such a deviation. This is the only way to reduce litigation and provide consistency.
While everyone may not consider a formula "fair", it will at least have the advantage of treating everyone the same, and the first step towards fairness is consistency.
For more information about the various formulas in use in other states (and by some Massachusetts Judges) view the Divorce Spousal Support Calculator or our accompanying Article.
Because of my involvement in the creation of the Divorce Spousal Support Calculator I am often asked if I think alimony in Massachusetts is fair.Of course, this is a loaded question, and so my typical answer is that nothing in the law is "fair", it is simply our best efforts to be "fair and equitable." In creating the Calculator, however, I have already expressed a desire for greater consistency. This in itself is an admission that I would like to see improvement in the current statute.
Many others have expressed there displeasure with the current statute as well. As a result there is an ongoing (and at times heated) debate in Massachusetts right now over how to amend the statute. But how this debate is now framed is a trap. There is no right answer because the choices are both inadequate.
The Boston Business Journal (Dueling Alimony Bills Raise Hackles in Legal Circles), NECN, WBZ, the MetroWest Daily News, and even The Wall Street Journal have all covered the debate with varying degrees of impartiality. Many of these stories concentrate on two bills that have been presented in the Massachusetts Legislature. The House Bill No. 1785 would add numerous changes to the current statute, including limitations on duration, sunset provisions reducing alimony after five years, limitations on increases in alimony to specific circumstances, termination of alimony upon retirement of the payor or cohabitation of the recipient, and limitations on the courts' ability to consider cohabitation of the payor. The Senate Bill No. 1616 would add only the words "and duration" to the language specifying the powers of the courts to determine alimony.
The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. Although it is my experience that most Judges are fair in their rulings, the lack of firm direction in the statute forces many cases to trial that might otherwise have been settled. Much of the criticism of the Senate Bill centers around this issue of protracted and expensive litigation. Indeed, the proponent of the Senate Bill, Newton Senator, Cynthia Creem, has been attacked as having a conflict of interest because she practices family law, and could potentially benefit from increased litigation costs.
Unfortunately, this is the type of debate you receive when only two solutions are presented to a very complicated and diverse set of problems. There are multiple criticisms of the current statute. They include the fact that the statute doesn't limit the duration of alimony, encourages litigation of the issue of alimony by its vagueness, and that it fails to address numerous scenarios in which unfair results may occur (such as forcing a payor to continue support after retirement age or when the recipient is cohabitating).
The Senate Bill admittedly only addresses one of these issues, the issue of duration. But to say that it further encourages litigation is a mistake. The current state of the law in Massachusetts is that Judges to do not have the authority to limit the duration of alimony in a Judgment. This forces further litigation because a Modification action is necessary to end alimony in cases where temporary alimony was appropriate or retirement has changed the circumstances. Adding the duration language suggested in the Senate bill could avoid future litigation, by allowing Judge's to address this issue in the original order.
In contrast, the House Bill attempts to address many of these issues at once, but takes a very specific position with respect to each issue. Since many of the proponents of this bill are alimony payors themselves (such as those quoted in another BBJ article) their conflict of interest is obvious (as opposed to the supposed conflict of interest of Senator Creem).
There are multiple ways other than the changes described by House Bill No. 1785 that we could improve the law in Massachusetts without moving it too far in favor of the potential payors. For instance, Maine has a statute that defines different types of alimony, allowing a Judge to order transitional or reimbursement support in cases where long-term support may not be appropriate.
Similarly, the House Bill's failure to address the creation of a formula (or at least a maximum), as recommended by the AAML, will leave us with the same problems of ongoing litigation. The House Bill might solve the problems of some of its proponents, but it is not going to reduce the litigation of most alimony cases which will still require the input of a Judge to decide the ultimate amount of spousal support payments.
This is why it's a trap to ask any experienced practitioner to choose between Option A (the House Bill) and Option B (the Senate Bill).
Whether or not changes to the statute favor the recipient or the payor, true reform of the alimony statute should provide consistency. Therefore, the most fair way to amend the statute would be to include both a durational component and a formula for calculating the appropriate amount of alimony, while still allowing Judges to vary from the presumption if they make findings that a specific factor (as suggested by the AAML) warrants such a deviation. This is the only way to reduce litigation and provide consistency.
While everyone may not consider a formula "fair", it will at least have the advantage of treating everyone the same, and the first step towards fairness is consistency.
For more information about the various formulas in use in other states (and by some Massachusetts Judges) view the Divorce Spousal Support Calculator or our accompanying Article.
Thursday, February 9, 2012
Q of the Week: What is the Stevenson-Kelsey Spousal Support Calculator?
UPDATE: There is pending legislation for major changes to the alimony statute in Massachusetts. The Alimony Reform Act of 2011 was filed on January 18, 2011 and you can learn more about the Act at MassAlimonyFormula.com or in our recent blog post highlighting the differences between the bill and the current law.
Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so.
There is not currently any formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. The amount of alimony is dependent on the consideration of all of the factors described in M.G.L. c. 208 Section 34. You should consult an attorney to discuss how the facts in your case fit the factors of Section 34.
Some states use formulas to calculate presumptive alimony. And notwithstanding Section 34, some Judges in Massachusetts have suggested doing the same in Massachusetts. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible.
Although the Court has no obligation to follow these formulas they can be a valuable resource in helping parties understand a reasonable potential range of spousal support orders. Attorney Justin L. Kelsey of Kelsey & Trask, P.C. in Natick, Massachusetts, in a joint project with Attorney Scott R. Stevenson, Esq. of Hingham, Massachusetts, has created the Stevenson-Kelsey Spousal Support Calculator which includes all of these formulas and can be accessed by clicking here.
The sources for each formula are referenced in the accompanying article which can be accessed by clicking here.
Alimony, also called spousal support, is paid by the wage-earning spouse (the spouse who has traditionally earned the majority of the income during the marriage) to the non-wage-earning spouse to allow the non-wage-earning spouse to continue to live in the lifestyle to which he or she has become accustomed during the marriage assuming their is enough income to do so.
There is not currently any formula enacted or endorsed by the Massachusetts Legislature or the Courts for the calculation of alimony. The amount of alimony is dependent on the consideration of all of the factors described in M.G.L. c. 208 Section 34. You should consult an attorney to discuss how the facts in your case fit the factors of Section 34.
Some states use formulas to calculate presumptive alimony. And notwithstanding Section 34, some Judges in Massachusetts have suggested doing the same in Massachusetts. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible.
Although the Court has no obligation to follow these formulas they can be a valuable resource in helping parties understand a reasonable potential range of spousal support orders. Attorney Justin L. Kelsey of Kelsey & Trask, P.C. in Natick, Massachusetts, in a joint project with Attorney Scott R. Stevenson, Esq. of Hingham, Massachusetts, has created the Stevenson-Kelsey Spousal Support Calculator which includes all of these formulas and can be accessed by clicking here.
The sources for each formula are referenced in the accompanying article which can be accessed by clicking here.
Subscribe to:
Posts (Atom)