Till Death Do Us Pay

Photo by Hugh Kretschmer

Steve Hitner sits on a bench in the Marlborough District Probate Court, drumming his fingers on the wood. It’s 10 a.m., and already a half dozen supplicants have been granted an audience with Judge Randy Jill Kaplan, a fiftyish woman with tousled blond curls: ex-spouses seeking settlement approvals, estranged parents sparring over visitation rights, a divorced mom making the case for why she should be allowed to travel abroad with her kid. The bailiff has opened every window on this brisk spring morning, making the courtroom as cold as a morgue.

Dressed sharply in a black blazer, silk tie, gray slacks, and rimless glasses, Hitner, 61, has the look and hopped-up energy of a salesman about to close the biggest deal of his life. He has quite a bit riding on this hearing. So, too, does his ex-wife, Joan, 66, seated with her lawyer on the opposite end of the bench, decked out in a formfitting gray pantsuit, ornate hair clips, stylish white leather purse, and long, manicured nails. She’s flown up from her home in Florida for the occasion. At stake is the $45,000 in alimony Hitner has paid her every year since their 1999 divorce, but says he can no longer afford. With his printing and copying business hemorrhaging cash, he says he took just $36,000 in salary last year.

Despite these dire straits—Hitner relies on his second wife, Jeanie, to pay most of the household expenses plus the part of the monthly alimony bill he can’t cover—he isn’t optimistic that Judge Kaplan will be moved. Four years ago, he’d sought a modification from this same judge. “I told her, ‘I really need help here, because I’m running out of credit cards to borrow on to pay this alimony,'” says Hitner. “The judge’s response was, like, ‘Lemme know when you run out of credit cards and I’ll put you in jail.'” He ended up filing for bankruptcy in December 2006. A separate court battle with Joan (who declined to be interviewed for this article) over stock in his company has dragged on for 10 years. Hitner estimates that he’s spent, at minimum, $200,000 in legal costs just to get where he is today. Which is to say, exactly where he was in 1999.

While he’s been fighting these personal skirmishes, Hitner has also been engaged in a larger war: to finally, and fundamentally, change the way Massachusetts does alimony. When he isn’t busy keeping himself out of financial ruin, not to mention lockup, he’s leading that charge as president of Massachusetts Alimony Reform, a group he started in 2005 with like-minded first husbands (and the second wives who support them, often financially). His target is a system that many in the legal profession—both judges and attorneys, in our state and around the nation—contend is among the most backward in the country.

“We have a society that should encourage people to take care of themselves,” says Hitner. “But in Massachusetts, when two people split up, the court system ties them together for the rest of their lives.”

Photograph by Tim Llewellyn

Such is the unique hell that is Massachusetts alimony law—a particularly ironic hell, given our pioneering, progressive reputation when it comes to marriage. Completely separate from child support—about which state law is surprisingly lucid—alimony is intended to provide for the financial needs of the lesser-earning, or “dependent,” spouse after a divorce. “Need,” according to Massachusetts case law, is whatever is required to keep up, to the extent possible, the standard of living the parties enjoyed before divorce. (Although it’s a gender-neutral law, most alimony recipients in Massachusetts are female.)

Today many states have statutorily defined the purpose of alimony—for instance, as a temporary arrangement allowing the dependent spouse to get on his or her feet financially; as compensation for money invested in a marriage (like paying for a spouse’s medical school);  or as punishment in an at-fault divorce. In Massachusetts, by contrast, the statute mandates that alimony exist, but neither the courts nor the legislature has formally explained why. As such, the rules on who gets alimony, how much, and for how long are murky at best.

Because the statute is so vaguely worded, award decisions are habitually based on case law, the growing mountain of which is a hydra of rulings that point in so many directions that almost any decision can be defended or overturned on appeal, depending on how smart your lawyer is and which precedent he selects to argue your case. “There’s no predictability about what a judge will do,” says David H. Lee, a family law attorney and cochair of the Boston Bar Association’s alimony task force, “and no predictability about whether an appellate court is going to be consistent with what was said months or years earlier. It’s a real struggle.” He adds, “A lot of people are looking for logical explanations. But when you look at alimony [in Massachusetts], you have to check logic at the door.”