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Read Alimony Testimony below
presented by Michelle Pierce, WBA President
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YOU NEED US, AND WE NEED YOU
Women's Bar Review, March/April 2009
Traditionally, a new bar association president announces her priorities at the beginning of her term. I have three priorities: membership, membership, membership. Accordingly, in the 2009-10 year, the Women's Bar Association plans to add new members and build current members' connection to the WBA. Growth and depth are key as the WBA furthers its mission in a difficult economy. It has never been more important for you to join, and maintain your membership in, the WBA.
Simply put: you need us, and we need you.
The Economy - An Opportunity for Change
The WBA has grown significantly in the past few years and we have no intention of changing this trend, even in a bad economy. In fact, the economy may be a vehicle for growth and change, for several reasons.
First, there can be no debate that, while a down economy hurts everyone, women are disproportionately affected. Start with the proposed budget cuts for the courts. Women's access to justice for 209A Abuse Prevention Orders is going to be dramatically impacted as courthouses close. This means that, in addition to the many financial and emotional hurdles already facing her, a woman must now travel to another town to secure her safety. That woman will do so with less support and likely less efficiency, as the courts grapple with their financial limitations. Similarly, the court employees affected by the proposed layoffs are disproportionately female.
Also, some lawyers are beginning to examine whether layoffs at law firms are magnifying the already uneven advancement of women in private practice. For example, we question whether women are being laid off at the same rate as men. Further, we are concerned that the women who survive the layoffs may not be getting the "plum" assignments, or may be receiving fewer opportunities and work experiences that will help them grow. In addition, the rates at which women are being promoted to equity partner in this economy - already at a crawl - has slowed even further. These are issues that are at the forefront of the WBA agenda.
Perhaps one way to look at the economic downturn is as an opportunity, not solely a burden. For example, the WBA and other groups have long been documenting the harm that the billable hour model can inflict on a family. When success is measured based on the number of hours worked, there is no question that families suffer, as attorneys - male and female - sacrifice family time to meet billable hour requirements. With the decline in the economy, clients are demanding that firms be more flexible and creative in their billings than the billable hour model allows. Perhaps this is an opportunity to propose some alternatives, by necessity, to this model that can be so unfriendly to the family and to the advancement of women in our profession. There are likely many other ways that the economy will promote positive change.
Join and get involved
Maintaining your connection to the WBA is therefore more important than ever. The bar and society at large count on the WBA for its unique voice and unwavering focus on how events, including the economy, affect women.
At a more individual level, it has never been more important for attorneys to network and connect, both to find jobs and to help develop business and expertise in current jobs.
For these reasons, we need lawyers to join - and maintain - their membership. Even if you do not feel you are as "active" in the WBA as you might wish to be, you are still adding your voice to the WBA through your membership. By adding your name to our ever-growing ranks, you help us achieve goals for you and the bar - adding more women to the bench, monitoring legislation that affects women, and acting as a watchdog for our professional by ensuring it is held to a high standard.
In addition, the WBA would certainly benefit from each member increasing her level of involvement. Join one of our twenty-one committees and help projects and activities in an area most important to you. Consider bar leadership, so you can help direct the WBA now and in the future.
Please do not hesitate to contact me if you have ideas for how the WBA can better serve you and better serve our mission. My email address is mpeirce@dbslawfirm.com.
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TESTIMONY
In Support of S1616, An Act Relative to Flexibility in Alimony Orders
Presented by Michelle Peirce
Women’s Bar Association of Massachusetts
before the Joint Committee on the Judiciary
September 17, 2009
The Women’s Bar Association of Massachusetts (WBA) supports Senate Bill 1616, a bill that would amend the Commonwealth’s divorce statute, MGL Chapter 208, Section 34 to allow the court to award short-term alimony and also allow to award alimony for a fixed period if the court believes it is appropriate.
Under current law, judges may not award alimony for short-term marriage. There are circumstances when durational alimony is appropriate. Durational alimony would allow people time to receive education and training so that they could enter the workforce and help support themselves and their children. The court would continue to look at each case individually, considering all factors that Section 34 outlines, but S1616 would allow the court to make alimony durational which, we believe, will enable the court to make more short-term alimony orders.
The WBA is a professional association of women attorneys and judges, with over 1,500 members across the state. The WBA was founded in 1978 and is one of the largest women’s bar associations in the nation. Since 1978, everything the WBA has done has been guided by these simple words: We are committed to the full and equal participation of women in the legal profession and in a just society. Our organization’s commitment to creating a just society for all its members and to advancing and protecting the interests of women and children compels us to support S1616.
The WBA’s sister organization, the Women’s Bar Foundation’s Family Law Project, sees an extraordinarily high number of short-term marriages where the wife has been the victim of domestic violence. Very often these clients are further marginalized by poverty, language and cultural barriers, and an inability to find work due to immigration status. Such a case is Jane who was married for six years to her husband, a United States citizen. She was able to move to this country only last summer. After two months here, he physically abused her, left her with twenty dollars in the house, no food, and no resources. She could barely speak the language. The court might decide that alimony on a short term basis, consistent with the length of their marriage, would be appropriate and this bill allows for that. Current law would not.
We believe that this simple change to the law is a far better solution to a perceived problem with alimony than the drastic proposal contained in H1785 which the WBA opposes in separate testimony.
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TESTIMONY
In Opposition to H1785, An Act Relative to the Determination of Alimony Payments
Presented by Michelle Peirce
Women’s Bar Association of Massachusetts
before the Joint Committee on the Judiciary
September 17, 2009
The Women’s Bar Association of Massachusetts (WBA) opposes House Bill 1785, a bill that would make drastic changes in the Commonwealth’s divorce statute, MGL Chapter 208, Section 34.
The WBA is a professional association of women attorneys and judges, with over 1,500 members across the state. The WBA was founded in 1978 and is one of the largest women’s bar associations in the nation. Since 1978, everything the WBA has done has been guided by these simple words: We are committed to the full and equal participation of women in the legal profession and in a just society. Our organization’s commitment to creating a just society for all its members and to advancing and protecting the interests of women and children compels us to oppose H1785.
H1785 would eliminate the partnership approach for determining appropriate alimony awards that has been in place in the Commonwealth for decades where the court looks to the contributions that each spouse has made to the family, including maintenance of a home and caring for children as well as the accumulation of marital income and assets. It would replace this flexible and equitable approach with a rigid formula that would dramatically curtail the duration of alimony to half the length of the marriage, 12 years, or to retirement at age 65, whichever comes first. In addition, after 5 years, alimony would be reduced by 10% per year. There are limited exceptions. Judges need to have discretion to accommodate changes of circumstances which is critical to fairness.
Such an approach will discourage parents of intact families from foregoing career opportunities to care for their children, forcing them to choose in advance between the needs of their young children at the time and the possibility of divorce at a later time, however remote that possibility may appear.
To the extent that either or both spouses sacrifice their professional careers to meet the needs of their children, or the development of the other spouse’s career, the spouse with diminished earning capacity should not be penalized later in the event of divorce by receiving alimony for only a few years while transitioning to a low-paying job and a reduced standard of living. Current law permits the court to consider a broad range of factors, including length of the marriage, age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. Under current law, present and future earning capacity is clearly an important factor, and judges routinely require stay-at-home parents to increase their earnings as long as that is in the best interest of the children.
Further, the bill has a double standard with respect to cohabiting adults that has the effect of overturning established case law: If the supported spouse cohabits with another adult, presumably including a roommate or another family member to help defray household costs, there is a rebuttable presumption of a substantially decreased need for alimony justifying a downward modification, even though the cohabiting adult has no duty of support and this may be the only way the supported spouse can improve his or her standard of living. On the other hand, if the supporting spouse cohabits with another adult, that person’s financial contributions cannot under any circumstances be considered in determining the supporting spouse’s ability to pay, even though substantial resources may be available to offset other costs of the supporting spouse.
Examples:
• This bill will hurt alimony recipients, who are largely women.
Jane Doe is married to John Doe for 30 years and raised four emancipated children. The parties live in Lexington, and he is partner in a law firm, and they had a very affluent life style. She is 55 when they are divorced. The kids are out of the house. Jane has no degree and needs to go back to school. Even then, she is likely only to get part time teaching work at $25,000 per year. Each year, he gives her 10% less alimony until he retires at 65. John Doe continues to earn more money each year and his investments produce more income as well.
• A client was awarded modest alimony (not time-limited) by the Court after trial, because she had had a stroke, was no longer able to work, and was on Social Security disability. Her husband had refused to settle for time-limited alimony, arguing that the concept of alimony was outmoded and unfair. Because they had only been married for about 12 years, under this bill, she would have received no alimony.
• This bill will hurt long-term survivors of domestic violence.
Jane Doe is married to an abuser for 40 years. They had five children and she never worked outside the home, caring for him and the children. He divorces her at 60. Jane is unemployable, has Post-Traumatic Stress Disorder, and no experience in the job market. She only gets 5 years of alimony under this legislation—no exceptions. And she has to provide a “self-sufficiency plan.”
• All same-sex marriage divorces would be affected adversely since length of marriage is so dispositive (as opposed to length of and contributions to the relationship). These couples were not allowed to marry until 2004.
H1785 would also require that the court amend within 18 months all alimony orders and agreements in effect as of the date of the bill’s enactment. This provision raises serious concerns about the effect on principles of res judicata in the case of court orders that have gone to final judgment and on the parties’ right to contract in the case of surviving agreements. This provision would also create a costly administrative burden on the Probate and Family Court which is already operating under severe resource constraints, and will wreak havoc on longstanding expectations for supported spouses who have justifiably relied on alimony as an important source of income.
We believe that this draconian proposal should not be adopted. Recognizing, however, that there are cases where short-term alimony is appropriate given the circumstances of the parties, we support S1616, which would clearly permit the court to order alimony for a specified duration. This simple fix should adequately address concerns to make alimony awards more equitable for supporting spouses while continuing to provide discretion to the court to view the totality of the circumstances of the parties to ensure a fair and just outcome.
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