Divorce Mediation Blog

Need and variable support orders: they are not mutually exclusive

Friday, June 17, 2016

[NOTE: This piece ran as a letter to the editor of Massachusetts Lawyers Weekly in its May 16, 2016 edition, under MLW’s chosen title “Need, variable support orders aren’t mutually exclusive in Probate Court”. We re-produce it here in its original form, and with our given title.]

David Lee’s April 25th rejoinder (“Court has it right regarding self-adjusting support orders”) to our March 28th article, (“The curious case of variable support orders…”), begs a clarification from us, and a related illustration of why one may wish to re-examine current law and practice.

In our piece, we advocated for a presumption in favor of sound and reasoned discretion for the judges of our highly specialized and carefully vetted Probate and Family Court, in fashioning self-adjusting support orders. We did so, both as a matter of consistency with the actual words of SJC precedent; and largely because, in most cases most of the time, there is insufficient income to leave an alimony recipient at the marital station, our long established measure of “need”.

Why should the law exclusively advantage the party who generates greater income, by shielding his or her rising income capacity from the party who is still in “need”, as defined by law; and by putting the disadvantaged party to the uncertain and costly test of initiating new litigation in the hope that the increased capacity is there? (The same principle would apply in reverse, of course. Why should a payor with sufficient income to meet all recipient “need” be blocked from a self-executing reduction where the court finds that the recipient’s need is likely to decline over time by reason of increasing independent earnings.)

We do not advocate for untethering alimony from its historic anchor of need, despite the fact that the legislature risked muddying the waters when it failed to include the clarifying words “lesser of” or “either” in stating that “… alimony should generally not exceed the recipient’s need or 30 to 35 percent of the difference between the parties’ gross incomes…” in the Alimony Reform Act (“ARA”). See, M.G.L., ch. 208, §53(b). In fact, we agree with Mr. Lee that the trial judge’s variable support order in Hassey v. Hassey was properly vacated, if it did not vindicate the purpose of meeting “need”.

But, what if the judge had found that Ms. Hassey’s “need”, based on marital lifestyle was $8,000.00 per month; that the alimony sum based on his 32.5% of his salary would likely net her $5,000.00 per month; that a history of earned bonuses established a reasonable likelihood that Dr. Hassey would have the ability to further assist in meeting Ms. Hassey’s “need”; and that it is equitable, therefore, that he pay additional alimony of 30% of his gross bonuses, to a sum that is no greater than $3,000.00 monthly, that which would return her to the marital station? Sound discretion could certainly condition the variable portion on a comparison of the parties’ incomes as per §53(b). The sheer weight of “the 99%”, for whom the marital station is at best an aspiration after divorce, and upon whom the cost of future litigation casts the greatest burden, suggests a re-examination of this doctrine.

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