Wednesday, June 18, 2008

Someone Notices Massachusetts Divorce Mania

By Elizabeth Benedict
June 13, 2008

FORGET KAFKA. Welcome to Massachusetts. In the 1980s, it was known as Taxachusetts. These days, it's known as the state whose divorce laws are so out of date that many people decide against marrying here - or marrying anyone anywhere whose alimony obligations originate here. I'm one of them. Two divorce lawyers tell me that the state's laws are so extreme they have "a chilling effect on marriage." Prenups offer no guarantees. Judges routinely ignore them.

Cathy Ortiz, a secretary in Fairhaven whose husband is out of work, was ordered in 2007 to make alimony payments from her own paycheck to his ex-wife - who has a full-time job with benefits. The husband, Ernest Ortiz, is suing the state, arguing that these laws are unconstitutional. Oral arguments were heard yesterday in Appeals Court.

Alimony law is largely case law, not statute. Many legislators are shocked to hear the feudal details, unique to Massachusetts. But not shocked enough to reform the law.

The laws are gender neutral, but the facts are not: 96 percent of alimony payers are men, who often must give 30 to 40 percent of gross earnings to educated and sometimes employed women. Alimony does not automatically end or decline at retirement, even after an ex-wife has gotten an equitable share of marital assets. This applies in no-fault divorces, to the middle-class, and to millionaires.

Alimony is usually ordered until the recipient dies or remarries, even for couples in their 30s and 40s. Judges who set time limits may be overruled on appeal. When children are involved, the court usually awards only child support, about 30 percent of a father's income, which ends when children turn 23. Then mothers frequently receive alimony at the same or higher levels, for life.

Many highly skilled workers who took time off to raise children - nurses, paralegals, financial analysts - are often not expected to work again, even if they divorce at 40. Some judges push them to work again; many don't.

Instead of remarrying, which would end their alimony, many women live with boyfriends and become the lifelong charges of their ex-husbands - and, only in Massachusetts, of their ex-husbands' new wives, whose resources are routinely and circuitously considered in determining alimony awards.

The case law is so murky, lawyers disagree on how it works. Some deny it happens. One says it's common, another "an anomaly." Bottom line: Women who marry men with alimony obligations may have even paltry earnings and assets considered when a husband loses a job or retires and tries to lower or end his payments. In 2003 a second wife put her disabled 8-week-old child into daycare to get a menial job to support her family and her husband's ex-wife - a nurse - when his business failed following 9/11. The court refused them any relief.

In 2007, a group of modestly paid second wives whose incomes were directly used to calculate payments were so incensed that they formed The 2nd Wives Club, a partner to Mass Alimony Reform. The groups support HR 1567, modeled on California's law, which was introduced earlier this year to update and codify the state's alimony rulings. A day of heartbreaking hearings turned up no opposition, but the bill was sent for further "study," a polite form of death.

The Massachusetts and Boston Bar Associations have created a task force to study problems stemming from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They may eventually support new guidelines for judges, not new legislation, which would clarify and simplify. They prefer ambiguity and case law, which produce more billable hours.

Beyond the injustice of divorce court without end, these laws create two classes of women: those considered too fragile to work and those whose labor is necessary to help support them. In the home of the country's preeminent women's colleges, and home to the most celebrated women in American history, these laws need to change.

Elizabeth Benedict is a novelist and journalist.

Monday, January 21, 2008

Slanted Justice

Man, Woman Commit Same Crime--She Gets 6 Months, He Gets 20 Years
January 21st, 2008

It can be problematic to compare sentences in different cases, particularly if the jurisdictions and/or laws are different or if plea bargains are involved. Still, it is sometimes of use, such as in discussing the sentencing disparities between whites and blacks and the sentencing disparities between men and women.

Jack, a reader, sent me the two articles linked below. In one, a woman caretaker scalded a boy (pictured) with bathwater.

His toes may need to be amputated, he may not be able to procreate, and he has severely infected, oozing wounds. Prosecutors say that after scalding the boy the caretaker forced him to do chores, even though he had first and second-degree burns. She didn't take him to the hospital for several days. Her sentence? Six months.

In the second article, a man did the same thing to his live-in girlfriends' son (minus the chores and with taking him to the hospital hours later instead of days)--and got 20 years.

In Honor of MLK


From the Garbarge Worker strike for higher pay: