Whenever a couple ends up litigating a divorce in court, among the hardest things to predict is whether the family court judge will award alimony to the lower-earning spouse. Judges in most states have a list of issues they’re supposed to consider, but they’re not told how to translate these factors into monetary awards. Just last week, Massachusetts became the first state to set numerical caps on the amount and duration of ordinary alimony that spouses are eligible to receive. Though I’ve been an advocate of using mathematical formulas to make alimony awards fairer and easier to anticipate, the Massachusetts law gets it wrong on both counts.
That’s because the new law doesn’t tell judges how much alimony they should award in any given case—instead, it says what they shouldn’t award. It specifies that alimony shouldn’t bridge more than 30 to 35 percent of the difference between the couple’s incomes, and it shouldn’t last longer than a fixed number of months, based on the length of the marriage. Besides announcing these limits, the law gives Mass. judges little guidance in setting the amount and duration of alimony; they’re tasked with applying a list of factors—like length of marriage, the ages of the spouses and their contributions to the marriage—that are similar to what judges use in the rest of the states. This approach saddles alimony recipients with all of the risks of numerical guidelines (they can be too restrictive or rigidly applied), while providing none of the benefits (alimony awards that are more equitable and predictable).
In applying these caps, the new alimony law stiffs recipients—over 96 percent of whom are women—at every turn. In deciding how long alimony will last, Massachusetts tells judges to consider the length of the marriage only up to the date someone files for divorce; in other states, the clock usually keeps running until the divorce is actually granted. In addition, in the Bay State, alimony may end if the recipient cohabits with a romantic partner; in most states alimony terminates automatically only if the recipient actually gets remarried. Perhaps worst of all, the law permits people who have had their day in court to go back and petition for a reduction if their existing alimony obligations exceed the new caps.
Alimony laws need to be reformed, but this just isn’t the way to do it.