If anyone thought former Supreme Court Justice C. Ian McLachlan was going to slip quietly into obscurity after he stepped down from the high court last summer, they’re mistaken.
Last week, he was heading a band of four prominent family law practitioners who are taking on Connecticut’s 40-year-old alimony statute. And they’re getting some unexpected backlash. The most controversial item is a mathematical formula for calculating spousal alimony.
The legislative proposal is causing a rift in family bar circles, with critics saying that it could impinge on a judge’s discretion. The Family Law Section of the Connecticut Bar Association is also opposing it.
On April 5, McLachlan presented written testimony to the legislative Judiciary Committee. He explained that he formed a "lawyers’ group" with former CBA President Livia Barndollar, Gaetano Ferro and Arthur Balbierer – all prominent matrimonial lawyers — who are concerned that alimony awards by judges are too erratic.
Their proposed formula would take 30 percent of the annual gross income of the spouse with greater income and subtract 20 percent of the other spouse’s income. For example, if a husband made $100,000 (30 percent of which is $30,000) and the wife $50,000 (20 percent of which is $10,000), the annual alimony payment to the woman would be $20,000.
McLachlan stated that experienced family practitioners already know the rules of thumb for alimony. "It seems wrong to me that alimony calculations should be limited to those who are `in the know,’" McLachlan said. He said establishing guidelines would be help inexperienced Judicial Branch personnel keep pace with "the virtual avalanche of pro se litigants" who are now navigating the court system without counsel.
Lane L. Marmon, of Westport’s Rutkin, Oldham & Griffin, objected in written testimony, chastising the four lawyers for drafting the bill without consulting other bar groups and coming up with the formula "without any research or data." She warned: "Overworked and nervous judges will more likely than not utilize the guidelines outlined in this proposed bill, rather than enumerating factors which cause a differing result."
Westport matrimonial lawyer Arnold Rutkin, also of Rutkin Oldham, presented the testimony on behalf of the CBA Family Law Section. He said a poll of its members indicated the section is "overwhelmingly opposed to alimony guidelines" in general, and the McLachlan proposal in particular. The percentage amounts in the proposed guidelines would improperly downplay the myriad factors a judge is required to consider under the alimony statute, Rutkin testified.
Rutkin said the bill’s proponents drafted it without input from the CBA section, the Connecticut chapter of the American Academy of Matrimonial Lawyers, the Permanent Commission on the Status of Women, or other legal aid and domestic violence advocacy groups. Asserting that the guidelines "may in fact be discriminatory against women and/or the poor," he endorsed an alternate bill, which recommends a legislative program review investigation of alimony issues.
Barndollar said she joined McLachlan, Balbierer and Ferro in the effort to re-work the alimony statute because other aspects of divorce law have changed substantially since it was drafted in 1973.
"Back in 1973, Connecticut was an at-fault state — no-fault divorce wasn’t the law," Barndollar said. "There’s been a huge paradigm shift. The four of us debated what the alimony statute meant, and decided that if we can’t figure out what it means, it needs to be more clear."
Barndollar’s view is that critics of the latest proposal are erroneously lumping together alimony and child support. "People who are saying this will leave the alimony recipient broke, and unable to support children, are forgetting that this formula refers [only to alimony] payments," Barndollar said. The formula would not be applied to child support or unallocated payments, which go to both the child and the custodial parent.
Ferro, a former national president of the Academy of Matrimonial Lawyers, also emphasized that there would be nothing binding for judges about the suggested alimony guideline in the proposed bill. Beyond that, there are many reasons to update the alimony law, he said.
Inserting "spouse" in place of husband and wife, he said, would bring the measure in line with Connecticut’s adoption of same-sex marriage, for starters. He listed five citation-rich pages of changes that bring the statute in line with case law. Among them is to allow child support and other financial issues associated with divorce to be decided in arbitration.
This isn’t the first time that alimony reform has been discussed in the legislature.
Ryan Barry, a Manchester lawyer and former state representative and Banks Committee co-chair, backed a measure during last year’s legislative session to place limits on alimony. The unsuccessful bill was modeled after an alimony reform measure that became law in Massachusetts. "Connecticut alimony law doesn’t have enough guidelines and consistency," said Barry.•