A contested proposal to require judges to use income-based formulas when determining alimony awards did not become law in the past legislative session, but it will be part of a study that will be considered by state lawmakers this term.
Led by Connecticut Alimony Reform, a grassroots group, and a handful of divorce lawyers, advocates for alimony guidelines have been seeking to change how alimony is handled ever since Massachusetts, in 2011, put limits on the amount that can be paid and for how long and added other guidelines for awards.
Connecticut lawyers who favor such guidelines say they would enable judges to be more consistent in deciding divorce cases and would also reduce the amount of time the court system spends holding hearings on alimony reduction requests.
"I personally think it's a good idea," said Edward Jurkeiewicz, a matrimonial lawyer with Lawrence & Jurkiewicz in Avon. "I'd like to see the courts use something similar to child support guidelines, where the courts follow a standard formula. If they are inclined to deviate from the guidelines, then there has to be some sort of explanation."
But the Family Law Practice Section of the Connecticut Bar Association and many family court judges have expressed concerns about removing judicial discretion from the equation. Determining fair payment for a spouse who has been married for a long or short time, and who has a lot of money or not so much, can be difficult if one is stuck with using statistics and formulas, said Superior Court Judge Eliot Solomon, who presides over a criminal court docket in Tolland and was formerly the presiding judge for the Family Division in the New London, Hartford and Tolland judicial districts.
"For me, personally, as a practitioner and from what I've seen on the bench, knowing how different each case can be, is seems to me that in order to be equitable as a judge, I need the flexibility to be creative," Solomon said. "Guidelines do limit the ability to be creative."
This is not the first time the state has considered alimony reform. It came before the legislative Judiciary Committee last year, which decided to appoint a task force to study the issue. Solomon was on that task force, which proposed a number of measures, some of which were recently signed into law by Governor Dannel Malloy and will take effect October 1.
First, there is a new requirement for judges to explain in writing their reasons for making lifetime alimony rulings. Those rulings set payment amounts that can't be changed until one of the divorcing spouses passes away.
Secondly, divorcing couples will be permitted to negotiate, and include in the initial divorce agreement, whether alimony will end when one of them begins living with a boyfriend or girlfriend. That change is intended to reduce the need for tedious hearings to resolve requests for alimony modifications when a former spouse begins cohabitating. Such hearings, family lawyers say, are especially burdensome because the existing law requires proof of co-habitation, which is not always voluntarily disclosed or easy to prove.
Also, the alimony statute was amended by replacing the word "spouse" in place of husband and wife, to bring alimony in line with Connecticut's recognition of same-sex marriage. The law was also slightly changed to include "education" and "earning capacity" to the list of mandatory factors judges use when setting alimony awards.
But lawmakers held off passing the most controversial proposal — the setting of alimony guidelines. Similar laws have been proposed in other states over the past few years, ever since Massachusetts enacted its changes.
Entering the fray, an independent lawyers' group, comprised of former Supreme Court Justice C. Ian McLachlan, former CBA President Livia Barndollar, and veteran matrimonial lawyers Gaetano Ferro and Arthur Balbirer, presented testimony that "societal changes and intervening court decisions over the past 40 years" are now making changes to the alimony law necessary.
One of those factors is the large number of self-represented parties, especially in family court, McLachlan said. "We need to do everything we can to address that problem," he said.
While McLachlan "vehemently opposed" a proposal for a mandatory formula to be used by judges in determining alimony, he presented the idea of using formula as a "starting point." McLachlan and other members of his group suggested adding alimony guidelines primarily as a way to help pro se litigants who lack the legal training to make arguments for or against alimony awards in court. Judges don't have time to explain how alimony law works to every pro se litigant, McLachlan said.
Under the group's proposal, a judge would take 30 percent of the annual gross income of the spouse with the greater income and subtract 20 percent of the other spouse's income. The difference would be the annual payment. So, for example, if a husband earned $100,000 annually (30 percent of which is $30,000) and the wife made $50,000 (20 percent of which is $10,000), the annual alimony payment to the woman would be $20,000.
But instead of imposing formula-based guidelines, similar to measures Florida, New York and New Jersey are now considering, the legislature called for an alimony study. The Legislative Program Review and Investigations Committee will look at guideline-based approaches, along with all aspects of "fairness and adequacy of state statutes relating to the award of alimony."
A report containing proposals is to be presented to the Judiciary Committee by February 1, 2014.
Representative David Baram, D-Bloomfield, Windsor, who co-chaired the task force that looked into proposed changes to alimony laws, said his group ultimately recommended that a more detailed report be completed. "Having a study done is the best way to make an informed decision about alimony reform," Baram said.
"The alimony study will help us better understand the issues associated with formulaic approaches to alimony," Baram said. "I expect that the study will prompt a healthy discussion among family law practitioners, judges, legislators and the public. I have every confidence, however, that we will find consensus and make wise policy choices."
Lawmakers have been looking at ways to update the 40-year-old alimony section of the state's marriage dissolution law for a couple of years. Ryan Barry, a Manchester lawyer and former state representative, backed a measure in 2012 to place limits on alimony. That bill didn't make it out of the Judiciary Committee. "Connecticut alimony law doesn't have enough guidelines and consistency," Barry said.
There are many factors behind the recent calls to update the law. For one thing, because people typically marry later in life, and marriages are not as long as they used to be.
Many families have more complicated asset portfolios than they did decades ago, and some may have low income and high capital value, or vice versa. And unlike the majority of marriage dissolutions 40 years ago, when more men were the only wage earner, it is increasingly common for divorces to occur between two-wage earning spouses, adding to the debate over who should pay what when the marriage ends.
Judge Solomon, who was just named deputy chief court administrator, a job he will assume in October, said it will be up to the Legislative Program Review committee to decide what direction it wants the law to take. The Judicial Branch will be called upon to give its official position during the process, according to the legislation authorizing the study.
"The legislature will look at this, and their job is going to be pretty interesting," Solomon said. "For me, I do my best when my discretion is left intact."•