I have received couple of questions on how divorce may affect social security benefits over the past week, so I thought a post on this topic might be helpful.

First, a good point to remember is that social security is a federal system, and is thus controlled by federal regulations.   Social Security benefits cannot be bargained like other assets or retirement accounts since the receipt of social security benefits, how they are paid, and to whom are all controlled by federal law.   This is why you don’t see sections on social security benefits in divorce agreements.

A divorced spouse may be entitled to social security benefits, but this really depends on the eligibility of the person that they were divorced from.  In order to be eligible for retirement or disability payments, the marriage to the retired or disabled person must have lasted at least ten years, and the spouse applying for such benefits must not be remarried.   If a subsequent marriage ends by another divorce or due to death, then eligibility may then be re-established.  A divorced spouse may then be eligible to receive up to 50% of the worker’s payments or up to 100% of a deceased worker’s payments after the age of 62.

The maximum family limit does not apply in the case of a divorced spouse who qualifies.

There are a number of other provisions to consider depending on your specific circumstances.  For instance, if a divorced spouse is eligible for social security benefits on their own record, that amount will be paid first; but if the benefit paid to the other spouse is higher, the divorced spouse may get a combination of benefits that equals the higher amount.  Finally, the amount the divorced spouse receives does not change the benefits the worker and any new spouse receives.

Another good source for additional information on this issue is the Social Security Administration website.  I also found this article on the Kiplinger.com website which you may find helpful.

Social Security and Divorce is a post from: The Divorce Collaborative

First of all, I want to be clear that I think that there are cases that certainly call for alimony, also known as spousal support.  There are also cases where our current system seems to create some unfair results.  Those ordered to pay lifetime alimony  might equate their situation to a having a nasty virus – it can make you feel sick and takes a long time to go away.  In fact, one of the current Massachusetts alimony reform bills, HT 1785 even sounds like a new bug requiring lots of hand sanitizer.

Much of this recent activity and information referenced in this post is available on the Massachusetts Alimony Reform website.  Recently, the Boston Bar Association created some controversy by jumping head-first into the alimony reform issue by endorsing Senate Bill 1616.  The Senate bill allows judges to consider the duration of alimony awards, but that is it.  Critics argue that allowing judges discretion with setting the length of alimony awards – although a step in the right direction – does not go far enough in changing our antiquated approach to spousal support here in the Bay State.

Boston Business Journal writer Lisa van der Pool wrote a story about the BBA’s endorsement of Senate Bill 1616 on September 25, 2009.  She was also interviewed on NECN about the story and the controversy created by the BBA’s support.   Again, all of this info, including links to both bills, is easily accessible on the MA Alimony Reform website which is linked above – thus I have not duplicated every link in this post.

Those supporting more sweeping reform of the Commonwealth’s alimony system support the House Bill, HT 1785.   HT 1785 provides comprehensive changes well beyond just allowing judges discretion in determining the length of alimony payments.  By the way, if you have HT 1785, make sure you cough and sneeze into your elbow.  Of all body parts, the elbow seems to be getting a bad deal lately as the body’s new germ storage facility.  Even if you are paying alimony, be glad you are not an elbow.

My fellow Massachusetts family law attorneys appear split on the alimony reform issue.  For instance, fellow blogger and attorney Steven Ballard supports the sweeping reforms in HT 1785, while Boston divorce lawyer and blogger Nancy Van Tine of the large firm of Burns and Levinson was quoted in the Boston Business Journal article as being critical of HT 1785, saying that it “took the current law and flipped it on its head and made it equally bad in the other direction.” The BBJ article does not go into detail about Attorney Van Tine’s reasoning, but her other posts have stated that she feels HT 1785 is too formulaic of an approach.

There are other observations and questions related to these issues that I find interesting.

1.  Will sweeping alimony reform cost some divorce lawyers who focus on litigation money?  Seems that could definitely be the case.   Is this a factor behind the Boston Bar Association’s opposition to the house bill?  I wonder how many attorneys involved in the vote at the BBA are litigators that earn big fees from trying alimony cases?

2.  The MA Alimony Reform group is always talking about rich divorce lawyers.  I am obviously doing something wrong.

3.  This issue brings out a lot of anger and emotions in some people, not that there is anything wrong with that.  When reading parts of the MA Alimony Reform site, there are some dramatic statements.   How about this for example when making the case for their opposition to Senate Bill 1616:  “The (Boston) Bar Association’s proposal will keep the law unclear – continuing to maximize the animosity between divorcing couples; increase contentious and bullying lawyer debates; and add to already exorbitant legal fees in the court room.”

Wow.  That must be one powerful statute!

Is the law really responsible for maximizing animosity between divorcing couples?  That seems just a bit of a stretch.  First of all, many couples maintain a respectful attitude during divorce and make the transition without being driven by animosity.  For couples driven by conflict and resentment, is the current alimony scheme really responsible for maximizing the animosity between these high-conflict divorces?  I think not.

If lawyers are having contentious and bullying debates, isn’t that because the lawyers are zealously advocating the wishes of their clients?  If a client does not want their attorney to have these contentious and bullying debates, then the client can hire a different lawyer with a different approach.

Finally, there are steps couples can take to control legal fees, although it is possible that one side may increase the other side’s legal fees due to having to respond to various discovery requests, motions, and unreasonable positions.  That is unfortunate.

Thus, in some of these “alimony horror stories” how reasonable were the positions of the parties involved?  Did they consider a collaborative divorce or hiring a skilled mediator before entering the nasty arena of litigation?  Were opportunities for settlement fully explored? Was an experienced divorce coach considered to guide people through the process in such a way to have hatred not be the driving force?

I don’t usually buy into the theory that people are completely powerless to get off of the roller coaster ride.  Litigation can start to take on a life of its own as parties (including lawyers) may become entrenched in positions and feel they have to win at all costs.  Divorce involves many complex factors, some more emotional than legal.

For couples that simply cannot or will not agree, we have the courts.  As our family structures evolve, so it seems should the concept of alimony.  Let’s not expect any one statute to have magical powers however. Couples driven by animosity will probably find other things to argue over and seek out the type of lawyer that is ready to fan the flames.

Massachusetts Alimony Virus – Still No Vaccine Available is a post from: The Divorce Collaborative

My regular readers perhaps (hopefully) noticed I have not posted for about a month or so.  It is good to be back!  I started a new law firm The Divorce Collaborative LLC in Medway, MA earlier this summer and have been working with my favorite website/blog guy Jim Spencer of JBS Partners in Winchester, MA on morphing the blog into a full website.  There is still a little work to be done, but it is just about complete.  I would certainly appreciate your feedback on the site.

…Now, let’s get back to blogging!

I am lucky in the fact that I have nice, thoughtful people as clients.  A number of my clients emailed me the article referenced above from the July issue of  Boston Magazine. Two husbands and one wife sent me the article.

The article is about the evils of alimony in Massachusetts and how unfair it is.  The article was focused on a gentleman from Marlborough, Mr. Steve Hitner.  Mr. Hitner also started a group in 2005 called Massachusetts Alimony Reform.  The article explained that Mr. Hitner pays a fair amount of alimony to his ex-wife and that he would prefer not to pay it.  How shocking.   In a nutshell, the article also goes on to say that divorce lawyers make money trying alimony cases, so as a group we must be against alimony reform and vilifies Senator Cynthia Stone Creem, because she is co-chair of the judiciary committee and in the position to stop the efforts of the MA Alimony Reform group.

Sure, the alimony system in Massachusetts could benefit from some changes, but I did not find this to be the interesting point in this story at all.  In fact, what I found completely interesting was that although Mr. Hitner was quite displeased about paying alimony, he apparently thought is was sensible to spend “…at a minimum, $200,000.00 in legal costs…”  The article also mentions that there have been a number of post-divorce issues and court appearances, many of which do not appear to have been related to alimony.  We don’t know what the ex-wife spent, but here is a couple that could have spent somewhere around $500,000.00 in legal fees.

At the end of the article Mr. Hitner and his ex-wife make a deal.  The authors write “It is fitting that after a decade, hundreds of thousands of dollars in legal bills, and weeks in front of judges, it was a private agreement, and not the court system, that put an end to the couple’s drama.”

Now THAT is interesting!  Didn’t these folks ever consider mediation?  It is possible that one of them did but the other was not agreeable since it is much more exciting to spend years out of your life arguing and hundreds of thousands of dollars in legal fees to finally come to the conclusion that they were better off to just talk and make their own reasonable agreement.

So, thank you to Mr. Hitner and his ex-wife Joan and Boston Magazine for providing us with a most excellent, real-life  example of why couples should consider working with a mediator to find solutions for their family conflict instead of getting embroiled in decade-long litigation resulting in huge legal fees and a court-imposed solution that was not satisfactory to at least one of the parties.   Too bad they did not consider that over ten years ago when they had their divorce trial.  To me, that is the much more interesting story.

Comments on Boston Magazine’s July Article: “Till Death Do Us Pay” is a post from: The Divorce Collaborative