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New Mass. alimony law a ‘model’ — but is it working?

Some judges ignore reforms, critics say

Gary Young fled to a Cherokee Indian reservation in Tahlequah, Okla. He said he has no intention of coming back to Massachusetts, where a judge ordered him to pay almost $4,000 a month in alimony. He says he does not have the money.

DAVE CRENSHAW/ASSOCIATED PRESS

Gary Young fled to a Cherokee Indian reservation in Tahlequah, Okla. He said he has no intention of coming back to Massachusetts, where a judge ordered him to pay almost $4,000 a month in alimony. He says he does not have the money.

Just more than a year ago, Gary Young was sentenced to 120 days in Middlesex Jail in Cambridge for failing to come up with $20,000 for his wife’s lawyer during their divorce proceedings in Cambridge Probate and Family Court. He was found in contempt of court and led away in handcuffs and leg irons.

“It was the most humiliating thing,” says Young, who is from Sudbury. “I’m in there with gang bangers and drug addicts and felons. I had no criminal record. I have a pharmacy degree and an MBA. I was a Marine.”

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Six days later he was released by Judge Patricia Gorman after family and friends raised the $20,000. But shortly after, before his divorce was finalized, Young, who was unemployed, took a dramatic step to protest the system he says failed him and the new alimony law he says isn’t being enforced.

He lit out for a Cherokee Indian reservation in eastern Oklahoma. Young, whose father was half-Cherokee, says he has no intention of coming back to Massachusetts, where the courts have ordered him to pay nearly $4,000 a month in alimony — money he says he doesn’t have and shouldn’t have to pay.

It is 20 months since the state’s sweeping alimony law went into effect, replacing an old system marred by inequities and abuses, including, in some cases, alimony payments for life, even for short-term marriages. Critics said the old law discouraged recipients, most of them women, from supporting themselves, and from remarrying.

The new law, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades and as a model nationwide, with alimony based on need. Unanimously approved by the Massachusetts Legislature, it curbs lifetime payments and sets specific time limits on alimony for marriages of 20 years or less. In longer marriages, judges may still determine the length of support payments.

It also terminates alimony when the payor reaches full retirement age as defined by the Social Security Administration, though judges can extend alimony payments only for “good cause shown.” Such exceptions must be justified in writing by the judge.

Also under the new law, alimony is supposed to end when a recipient spouse has been living with another partner for at least three months.

“The message here is that everyone has to plan and be responsible for his or her own retirement,” says state Representative Gale Candaras, Democrat of Wilbraham, who cochaired the task force that wrote the new law. “The alimony law we had before discouraged people from rebuilding their lives and taking care of themselves after divorce.”

But the law, while a clear improvement, hasn’t been the hoped-for panacea. Judges, lawyers, claimants, and advocates complain that its language is unclear and confusing on key issues, leading some judges to misinterpret the law, and others to simply ignore it.

The previous law reflected an era when women kept house and men provided. There were no formulas or guidelines for Massachusetts judges to follow when determining the amount and length of alimony. The lesser-earning spouse, usually the wife, was often given lifetime support. David Lee, a Boston family lawyer who helped write the new law, says its purpose was to “bring the issue of alimony into the modern world.”

Susan J. Matthew, a family lawyer and mediator with Healy, Fiske, Richmond & Matthew in Cambridge, says the law provides consistency and specific guidelines for judges to follow and “has given us some real clarity in that sense.”

And yet, it’s not clear the law is being consistently interpreted or enforced. “How is the law working? The answer is not as clear as people had hoped it would be,” says Matthew.

Giving up on court system

Young says he fled a judge and a court system that refused to listen to him or review evidence that he could not afford to pay his own divorce lawyer, much less his wife’s.

Gary and Elaine Young were married in 1979 and have a grown daughter. He was a pharmacist and later a well-paid executive with a medical device company. He left his job in 2008 to launch a biotech start-up that ultimately failed in 2011.

Young has been unemployed since the business went under, leaving him deeply in debt. But he says the judge did not want to hear it. Through a spokesman, Judge Gorman, who was appointed by Governor Deval Patrick in 2011, declined to comment on the case.

“The very first thing she said to me was, ‘Well, Mr. Young, you’re successful, you’re well-educated, you made a lot of money, and you were in the Marine Corps. I’m going to keep all of this in mind.’ ”

When Young failed to report for a divorce hearing in December 2012 (he was already in Oklahoma by then), Gorman issued a warrant for his arrest. If Young leaves the reservation (the Cherokee Nation is considered a sovereign land with its own constitution, courts, and government), and is detained for any offense, including traffic violations, he could be sent back to jail in Massachusetts.

In April, Gorman sent Young a copy of the final divorce decree, ordering him to pay nearly $4,000 a month in alimony. The amount was established “by using an attribution of income to Gary in the annual amount of $125,242 and his Social Security income in the annual amount of $28,171,” as well as various calculations based on his former wife’s income, according to the order.

Gary Young scoffs at the “attributed income” total, which he believes is based on his income between 2005 and 2009. He says he made no money the two years he ran the start-up and has not made any since.

“This is now 2013,” he says. “I’m 67 years old and living on Social Security. Judge Gorman told me every time I went to court to get a job.”

Young says he tried, applying to various pharmacies, but got no offers, and that his former wife’s lawyer has copies of his applications. The lawyer, Amy Dawson, declined to comment on the case.

Under the new law, alimony payments are to end when the payor reaches “full retirement age,” which it defines as the age at which one is eligible to receive full federal benefits. Though it used to be 65, the retirement age has risen, and according to the Social Security Administration, Young’s full retirement age is 66, based on the year he was born, 1946.

Young says he has seen no written explanation by the judge, as is legally required, for why he must continue to pay.

Steve Hitner, who was instrumental in getting the state’s alimony law changed and runs a mediation service for couples, says that those, like Young, who own their own businesses are often looked upon by the court as hiding assets.

“It’s very difficult to prove that you don’t have money, that you can’t afford to pay,” says Hitner, president of Mass. Alimony Reform, a nonprofit advocacy group. “And some people either go to jail, or they skip town, and you can’t blame them.”

Troubled marriage recalled

Elaine Young recalls a difficult marriage full of relocations whenever her husband grew tired of a city, which she says disrupted her jobs in sales. She says there were other women and “emotional abuse.” Elaine, who is 65 and living in the Boston area, says she retired from a job in sales at 61 because of rheumatoid arthritis.

Her former husband denies her allegations, and says their divorce was based on “irreconcilable differences.” Their divorce proceedings began in 2011 and were finalized in July 2013. The one thing Gary and Elaine Young agree on is that he is in deep debt due to his failed start-up. “He was told by the court system from day one to get a job. He could work as a pharmacist. I think he could at least support his wife who is disabled,” she says, referring to herself.

Asked about the new law that limits alimony to retirement age, Elaine says the law may work for shorter marriages when the husband “has been paying alimony for 20 years and wants to retire.” But after her 34-year marriage she says she was “left with nothing. I think I deserve some support, and people like me deserve support.”

In the divorce, Elaine Young got the family home, but it was foreclosed on. She receives $422 a month in a retirement plan from her former husband’s former employer. She has her own Social Security and retirement benefits from her job as a sales representative for Boise Cascade, a pulp and paper company.

Gary Young says his tax filings for the past three years show that he was living off his Social Security benefits of about $2,200 a month for rent, food, utilities, health insurance, and medications. He has no other money, he says.

In early September, Young’s Social Security check was garnished to pay his former wife’s alimony. “My ex will receive $1,320 of my $2,200 monthly in alimony and I will now receive $880 per month,” he says. “How can I live on $880 a month?” Last month, he canceled his phone service.

With her Social Security, her pension, his pension, and his garnished Social Security, Elaine Young will receive about $3,100 a month.

Revamped law defended

Judge Paula Carey, until recently the chief justice of the Massachusetts Probate and Family Court, has some concerns about how the new law has been implemented, but she says it’s a huge improvement over the old one.

“We knew there would be some growing pains,” says Carey, who in July took over as head of the state’s Trial Court. “But overall, it seems a significant and welcome change for judges and citizens.’’

Among those growing pains: lawyers and mediators are hearing complaints from payers about a part of the law that involves cohabitation. The language states that alimony “shall be suspended, reduced or terminated” when the person receiving payments has maintained a household with another partner for at least three months.

Those who wrote the law say that it is meant to apply to any recipient who has been living with another partner for three months or more. But some lawyers and judges are interpreting it to apply only to those who moved in together after the law took effect in March 2012.

Hitner refers to the case of Bob Schwartz, who sought his advice on the cohabitating clause. Schwartz and his wife, Debra, divorced in 2005, after 24 years of marriage. Schwartz was ordered to pay $63,000 a year in alimony. His former wife got their Framingham home; he got the business. They have two grown daughters.

A few months after the divorce, Debra Schwartz and her new partner bought a condo in Wayland, where they still live. Her partner is a software engineer who, according to court documents, earns $177,000 annually. In the 2012 Wayland Town Census, Debra is listed as a homemaker.

In 2009, Bob Schwartz’s health services company began to suffer during the recession, and he and his business partners took pay cuts. Schwartz asked his former wife for a reduction in alimony. In 2010, through mediation, it was reduced to $52,500.

When the new alimony law went into effect, Schwartz filed for further modification of his payments. “The new law was supposed to provide me with relief because of cohabitation,” says Schwartz, 61. “It’s supposed to be three months, and they’ve been living together going on eight years.”

Neither Debra Schwartz nor her lawyer, Maureen McBrien, will comment on the pending case. McBrien acknowledges problems with interpretations of the law, but said it is clear to her that alimony doesn’t automatically cease upon three months of cohabitation.

To the contrary, says David Lee, who was cochairman of the joint Boston and Massachusetts bar associations’ committees on alimony reform. The intent of the provision is clear. “It doesn’t say that alimony may be suspended, reduced, or terminated,” he says. “It says it shall be.”

Lee also says judges who have ruled that cohabitation counts only if the couple moved in together after the law went into effect are getting it wrong.

Carey agrees. “What was meant was that it should apply to anyone cohabitating for three months, whether they began it before or after March 1, 2012.”

When Bob Schwartz filed for modification a year ago, his former wife offered a $1 decrease, from $52,500 to $52,499. He remarried in 2010, and has been living in his new wife’s Sudbury home, which is now on the market. They cannot afford to keep it.

“She’s lived there 20 years, but I’ve been unable to contribute anything to the household, so she’s selling it,” he says. He says he is $175,000 in debt, and has a work contract with the new owners of his company only until November.

In January, the Schwartz divorce trial in Middlesex Probate Court lasted half a day before being continued until Oct. 22, the judge’s next open date. Meanwhile, he has continued to pay alimony.

“My ex-wife is being supported by her partner, by me, and by my current wife,” Schwartz says, “and my ex is the only one of us who doesn’t get up to go to work in the morning.”

Bella English can be reached at english@globe.com.
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