Once again, the roaring controversy over alimony is highlighted by the media. The headline tells the story. Alimony payers and, often, their new spouses, are lobbying for changes in the law governing alimony and in the probate courts rulings on alimony. The list of their demands are clear-cut:
Provide a formula for the calculation of alimony.
Limit the time frame for alimony.
Provide contingencies for stopping alimony in addition to a final termination date.
Reduce the percentage of income paid for alimony.
Provide incentives for alimony recipients to work and increase their earnings.
Do not consider income of “new” spouses.
The Globe, and even Channel Five’s Chronicle (typically a travel program), supply plenty of juicy tales to support the demand for change. Tale after tale tells of people paying too much alimony for too long. Not to be forgotten are the stories of people returning to court decades after divorce for increases in alimony. And, too, there are tales of those who refuse to work or who are underemployed. And so the stories go. But we need, I suggest, to step back and think a bit more. Are all these sagas true? Who knows? The media do not present both sides of the story. We are privy to only one side and, even there, it is not clear if the story is being accurately recorded or is stilted, even a little.
Does this mean that alimony, as a legal tenet, is fine in the Commonwealth of Massachusetts, that nothing is broken? Of course not. Most commentators, including those who are proponents of alimony, as well as the so-called opponents, agree that the public and the judiciary would benefit from greater clarity in the calculation and awarding of alimony.
At present, judges have their hands tied, unable to set a time limit on alimony other than for the death of either party or the remarriage of the recipient. They can, however, order an alimony payment which amount can vary with judicial discretion. There is no clarity or certainty of outcome to be found here.
While the debaters do not agree on the time frame or on a formula per say, they do agree that alimony should have end points, including a reasonable date for retirement. In addition, the majority agrees that the length of the marriage, in most instances, should dictate the time frame for alimony. Currently, the legislature is grappling with the alimony question, but not too successfully. Two bills have already been introduced and a task force is working on a third bill.
What does this controversy portend for the divorcing couple? What is certain, is that going to court for a judicial ruling on alimony is predictably unpredictable. Filings for modifications to increase or decrease alimony carry equal uncertainty of outcome.
It is therefore quite clear that counting on a trial to produce a ruling granting a lifetime of high alimony is in fact a gamble, and a costly one. Trials are never cost-effective. Before petitioners proceed with this route, they need to weigh the costs of their effort, emotionally and financially. Given the emotional and financial costs, not to mention the toll on their children and relationships, it is rarely advisable to go the court route.
At the Centre for Mediation & Dispute Resolution, we believe that couples need to approach considerations of support with careful attention to detail. We suggest that the following data are crucial:
Budgets for all family members
Income and income projections
Tax implications of different modes of support
Future sale of major holdings
Anticipated changes in income and/or assets
The couple needs to work together to calculate what makes sense now and in the future. And, as part of this analysis, they need to listen and weigh each other’s concerns and priorities. Thoughtful and thorough analysis will often produce an agreement that will last, even at times including built-in change points, relating to events or time intervals. Beside the savings in time and money, the end product needs to reflect an effort to produce a rationale plan which will be upheld by both parties. Clearly, provisions for catastrophic events can be included, events that “rock” all predictions, a sort of 911 happening. But the very inclusion of a catastrophic provision affirms that a couple, regardless of their relationship, knows that financially and emotionally, it is far wiser to revise an agreement than to engage in a battle. There is nothing about the mediation route that suggests acceptance of an inferior agreement. To the contrary, the attention to detail and considerations of tomorrow suggest control over your present and future, which in and of itself is a powerful outcome.
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