Divorce Mediation Blog

Justice Delayed…

Wednesday, October 30, 2013

In the October 20, 2013 edition of the Boston Globe, Bella English wrote about alimony in Massachusetts, which she described as a model for the country that is being subverted, in her view, by judges who are slow to honor some of the limiting aspects of the Alimony Reform Act (eff. 3.1.12). She focused on a couple of hard cases: one where a judge attributed income to a payor who claimed to have no ability to pay; and another where a judge ordered to a payor to pay past his social security full retirement age.

We read the piece with interest as it dealt with scenarios that we deal daily as Boston area and Western Massachusetts family and divorce mediators and arbitrators. But, as sometimes happens, we were struck in the end, not so much by the main theme of the article, as by by subsidiary detail in the last paragraph; namely that the man's divorce case was heard for one day in January and next heard, for day 2 of trial, in October.

An axiom of criminal law is "justice delayed is justice denied". Well, it is not a constitutional matter for divorcing parties, but it sure is a substantive one. How can a judge possibly remember anything about a single day of trial, ten months later, with literally hundreds of intervening cases heard? How many facts and circumstances have shifted in nearly a year of family life during a truncated trial? For someone who is over-paying, or for another who is not receiving enough, how can a two-day trial over ten months ever serve their needs?

The court system struggles, in some respects heroically, in others with futility, with short resources, longer and increasing demands and a shrinking social safety net. But how can the public feel confident that it is being served, regardless of any substantive law reform, when cases cannot be effectively tried?

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