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Divorce Mediation Blog

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 4

Wednesday, November 29, 2017

“Marital station, when?”

Levine Dispute Resolution - Alimony

In this entry, we will begin discussing how the Young case determines “need” in the context of alimony.

We have long known that need is a relative term. “The standard of need is measured by the ‘station’ of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.” Grubert v. Grubert, 20 Mass. Ap. Ct. 811, 819 (1985).

This is sensible, given that marital station is fueled by the parties’ financial resources, generally income from employment or self-employment. For one couple, subsistence may characterize the marital standard; while country clubs, international travel and maybe even cash available for investment, might be necessary to grasp the breadth of a high income living standard.

In Young v. Young, the trial judge chose to characterize standard by observing that:

    The husband's substantial compensation package allowed the parties to enjoy an affluent, upper-class station in life and marital lifestyle during their marriage.

Critically, she did not “…make a finding regarding [the wife’s] actual weekly or annual expenses or needs.”, as seemingly required by Grubert’s “what is required” mandate. (More on this is a later blog entry.)

The case does not disclose whether or not the judge looked at this question with a temporal focus, yet it is something that we have always found to be unclear in our law. After all, “during”, without more, seems to cover an entire marital span, in this case, 24+ years.

In many cases, the parties separate at their highest income level, when careers are successful and linear. But, what of couples with variable living standards because of industry volatility, entrepreneurial cycle, episodic illness or simple luck (good or bad)? How to measure their marital living standard?

The Supreme Judicial Court (SJC) approached this problem in Young for reasons that are not apparent, since there was no evidence recited beyond the expectation of unceasing rise of standard. The SJC had touched on it in Pierce v. Pierce, 455 Mass. 286, 296 (2009), which the Young court summarized as

    … [T]he recipient spouse’s need for support is generally the amount needed to allow the spouse to maintain the lifestyle you were she enjoyed prior to termination of the marriage. (Italics ours)

“Prior to” implies, at least, that trial judges should look to a timeframe that is somehow proximate to divorce, and the Young court looked approvingly to a treatise, stating:

    [S]ee also 1 Lindey and Parley on separation agreements and antenuptial contracts §22.63[2][e] (2d ed. 2017) (‘standard of living experienced during the several years before the divorce [is] relevant for alimony determination is pre-separation standard of living)… (Italics ours)

And yet, at Footnote 8, the Young case states:

    In light of this conclusion, we need not address the husband's argument that the judge was clearly erroneous in finding that the husband's income will continue to grow on an "upward trajectory." Even if it did, the wife's alimony would still be limited to the amount needed to allow her to continue to live the lifestyle she enjoyed at the end of the marriage. (Italics ours)

So, which is it? At the least, the SJC’s mixed signals may open the door to living standard evidence that is broader than simply that which existed on the eve of divorce, inviting evidence that might have been excluded previously on relevancy grounds, and it may allow the courts to take account of the more volatile, or inconsistent at least, economic fact patterns, which probably makes good sense.

Think: a high standard that dips late in marriage, or a lower one that spikes at the end. Giving the trial judge access to broader evidence suggests concomitant discretion in the ultimate marital standard finding.

As divorce mediators, we think it is good to encourage parties to look at the “need” question more openly; and as family law arbitrators and masters, it is instructive to know that SJC recognizes the possibility at least that “station” evidence need not be static in appropriate circumstances.

In the next entry, we will discuss a particular challenge that the trial court with have on remand in the Young case.

 

Post- Divorce Health Insurance: A Recent Decision and the Need for Reform

Wednesday, April 02, 2014

Previously, we wondered why the legislature tied a trial judge's mandatory inquiry into available health insurance at a reasonable cost to the provision of alimony in M.G.L., chapter 208, section 34. Particularly in view of the individual mandates of MA and now federal law, this seems anachronistic, at best, and begging for reform.

In the recent case of Young v. Young (12-P-1573), a Memorandum and Order Pursuant to Rule 1:28 (a so-called "unreported" decision) the Appeals Court, upheld a Probate Court judgment in which one appellate issue was the husband's complaint that the court had ordered him to provide health insurance for the wife when he was not ordered to pay alimony.

The case did not specify why no alimony issued, but we surmise from the facts reported that this was a forty year marriage and that wife was not yet retired, that either the Husband had passed the statutory retirement age and/or that neither party had "need" for spousal support. The judge did conclude, however, that the health insurance order was justified by the wife's expectation of losing work coverage at retirement and the fact that eventually, both parties will receive low cost health benefits attendant to the onset of the husband's military retirement pay.

Putting aside that these reasons seem to be a non-sequitor (What does the wife's anticipated loss of coverage have to do with coverage now? If she has coverage now, why does she need the husband's? What does post-retirement military health benefits have to do with either?), clearly this trial judge did not feel inhibited from awarding health insurance coverage to a non-alimony recipient.

Under the right circumstances, of course, this is a perfectly sensible result, which raises this question: is it time to look at post-divorce health insurance coverage anew? Since Massachusetts stepped out in front of all other states with its spousal continuation laws, and then with health exchanges and individual mandate, should it not be the first to look at this incredibly important subject comprehensively?

At a minimum, we think that the legislature ought to look at the discrepancies between M.G.L., chapter 208, section 34 and the Alimony Reform Act (can a payor's cost reduce alimony or not?), close the self-insurance loophole for employer-provided coverage (why should large companies with the capacity to absorb employee medical cost risks be exempt from covering ex-spouses where insurance companies are not), clarify portability of post-divorce spousal coverage (discretionary for subsequent employers now) and provide guidance as to what level of coverage and cost can or should be mandated. Importantly, this topic should be covered in one, comprehensive chapter or section of its own. The stakes are way too critical to the security of MA residents to be left to grasping at disparate authorities and guessing at outcomes.

As divorce mediators and family law arbitrators, we feel the need for clarity, consistency and a reflection of broad societal change in this vitally important area.

 

Some of Our Best friends are Divorce Lawyers

Tuesday, October 08, 2013

There, we said it. Many of them are very good at what they do -- responsible sorts, even; and they are nice people. In a field and among circumstances that tolerate and even encourage some pretty bad behavior, sometimes divorce lawyers are the only cool headed adults in the room. Yet, in a culture that values lawyers only when you need one, we are very free to stereotype and thus condemn a whole walk of professional life with cheap jokes and throwaway lines that if spoken about a race, a gender, a sexuality or an ethnicity, would be taboo. Not so with lawyers -- divorce lawyers foremost.

Such was the case in September 23, 2013's Boston Globe column by Jennifer Graham. In her piece "Free to be you and mean", Ms. Graham explored the case of Lawrence Summer's fall from political grace, shunned from his desired job as head of the Fed, she claims, because he is a nasty man in the workplace. In pressing the theory that the public trust requires competency first and compatibility not-so-much, she reduces divorce lawyers to a cultural cliché, a rhetorical prop. Ms. Graham asks herself "...are there certain jobs where a certain level of jerkiness is an asset?" In mock seriousness we suppose, she answers:

"Divorce lawyers, maybe. I've heard it said that you should never hire one that you like."

We do not say that there are not divorce lawyers who are irritating, difficult, even unlikable. We know a few. Some of them make a pretty good living, too. But, does this make "jerkiness an asset"? In the perverse sense that being difficult to deal with sometimes does make divorce cases longer and more than necessarily complex, and therefore more profitable for the lawyers, can that really be said to be an advantage for the client? Our answer is: "almost never".

Liking your divorce lawyer is no substitute for hiring one who is smart, skilled and measured; but most clients most of the time benefit most from competent counsel with whom they wouldn't mind breaking bread, too. In a relationship that begins with faith and is built on trust, confidence and a sense of pride in being publicly represented by this person, likability matters. It matters in the feelings engendered in the client (often while absorbing unavoidable disappointment), in the opposing spouse, in forensic specialists, in courthouse personnel and -- very much so -- in judges who decide cases.

As divorce mediators and family law arbitrators, we are much aware not only of the competent service that we try to provide, but also the quality of the experience for the lawyers and clients who work with us. In our corner of the business, jerkiness surely does not pay. We know that we see a self-selecting population of clients and counsel -- those who have opted out of the more confrontational or extreme forms of dispute resolution, so we see little of the reprehensible few that Ms. Graham damns with disingenuous praise. But, the cause of one brilliant jerk doesn't justify smearing an entire craft, and it certainly didn't add credibility to the Graham piece.

Now, about journalists...

 

Massachusetts Alimony: Watching the Pot - Part 3 An Arbitrator’s Perspective

Wednesday, April 24, 2013

In our last entry, we celebrated the freedom that a facilitative divorce mediator has when the appellate courts have not yet weighed in on the vagaries and pockets of discretion in the Massachusetts’ one-year old alimony “reform” statute. A statute that can be fairly characterized as open to flexible application can promote rather than limit open discussion, which for divorce mediation, is good.

The arbitrator’s view is quite different.

As family law arbitrators, we are essentially, private judges. While classical commercial arbitration law does not confine the neutral to precise application of prevailing law, family law arbitrators are bound to apply the law because the final result must still be deemed to be “fair and reasonable” to the reviewing judge, under our law. Moreover, when domestic relations clients hire an arbitrator, they are looking for objective and reasoned decision-making. Arbitration is not, after all, supposed to be arbitrary.

In this role, we are no less bound than a trial judge in court to search out what the law is on each point, and to apply it to the facts of the case. The imperfect analogies that are the core methodology of legal inquiry, that may hem in mediation, are the arbitrator’s roadmap. Where the parties do not have appellate rights, or even if they did1 , “getting it right” is the goal. Appellate case law is essential to that cause.

Divorce mediators ask: how may the law be applied to best serve this severing or restructuring family? Family law arbitrators (and masters, facts final), by contrast, ask themselves: what would I do if I were a judge in this case? Clear or confusing, slow and steady or sudden and messy, appellate case law gives arbitrators a window into those factors that would influence a judge in exercising discretion and in balancing competing interests that are represented by this complex statute.

For arbitrators, it doesn’t matter what we wish for, rather it simply matters what is. Let the pot begin to boil.


1As would be permitted if the proposed family law arbitration statute that is advanced by the American Academy of Matrimonial Lawyers – MA Chapter, were law.

 



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