As told to me by my father….
“There is not some justice. There is either justice or injustice.”
Which is this, and does perspective matter?
Recently the Massachusetts Appellate Court issued the Clement vs. Owens-Clement decision, a case involving a post-marital dispute over alimony between former spouses, Laurie and John – the facts were unusual, and the decision was complicated in terms of both statutory and case law, individual, familial and social responsibility. The case raises essential and worthy questions which I hope you’ll consider with me:
- What does who pays support to whom say about society and the lines we draw for independence, dependence and interdependence?
- What are the implications and social dynamics we create as a society when our healthcare and financial support are tied to marriage?
- Should former spouses be responsible for one another’s healthcare coverage and economic wellbeing, and if so on what basis and for how long?
- Should individuals, families and governments be responsible for the health care and financial support of a disabled person?
On page 18 of the 23-page Clement decision a footnote addressed issues that spoke to me about fundamental sociopolitical questions regarding the fabric of our society. Some of those foundational concerns regard where the responsibility fault lines are for individuals and for society-at-large, and if, whether and when universal healthcare and a minimum base income should be provided by our government, questions which become intensely personal when analyzing the unique facts of John and Laurie’s lives.
The Clements were married for approximately 6 years and divorced in 2013. In accordance with the terms of their divorce agreement they both waived past and present alimony; their Agreement was silent as to their right to pursue future alimony. Statutorily they were each entitled to a potential alimony award for up to 42 months from the time their divorce judgment’s entry, barring extenuating circumstances which could lengthen an order of support. Approximately four and a half years after their divorce (12 months after the expiration of the statutory period), Laurie filed a complaint for modification seeking alimony after suffering a brain tumor and having become permanently disabled and unable to work. A judge of the Probate and Family Court concluded that deviation from the Alimony Reform Act’s presumptive forty-two-month durational limit was “required in the interests of justice, “G. L. c. 208, § 49 (b), and issued a modification judgment requiring the husband to pay general term alimony of $200 per week until either party’s death, the wife’s remarriage, or further order of the court. The husband appealed, arguing primarily that the judge abused her discretion by deviating from the durational limits under § 49 (b) and by failing to terminate alimony upon his attainment of “full retirement age,” G. L. c. 208, § 49 (f).
John, a former state trooper, had also become disabled since the parties divorced but unlike Laurie, he received a disability pension, was able to work part-time and was remarried to a woman who contributed financially to their combined household. Irrespective of the alimony timeframe, the Appellate Court determined Laurie was entitled to John’s support based upon her need and his ability to pay. The Appellate Court affirmed the order John pay Laurie $200 weekly, but unlike the lower Court modified the Order from “until each party’s death” to termination when John reached his full retirement age under the social security act.
At his current age of 52 years old, John will reach his full retirement age when he turns 67, 15 years from now. The result of this Order is that although married for only about 6 years, John must provide Laurie with support for 15 years, 11 and a half years longer than he’d presumably understood was to be his potential obligation when signing his divorce agreement in 2013, and for a period which begins after a time when most likely he’d believed his obligation had ceased.
The Court was not convinced by John’s argument that he had a right after the termination of their marriage to anticipate a finite period during which he was exposed to the possibility of paying alimony, and instead found that Laurie’s extraordinary hardships created extenuating circumstances, that she had become disabled and unemployable and therefore dependent for her health care and income, either on her former husband or the Commonwealth.
The Court went on to say that “To the extent the husband argues that the judge should have considered the wife’s eligibility for government benefits when determining whether deviation was required in the “interests of justice,” we note that public policy favors ordering alimony to prevent the recipient spouse from becoming a public charge. See, e.g., Knox v. Remick, 371 Mass. 433, 437 (1976) (“Where . . . the Probate Court judge determines that one spouse is or will become a public charge, the judge may order support pursuant to his statutory authority, not specifically enforcing the [surviving] separation agreement to the point where the separation agreement would be used to impose support obligations on the taxpayers of the Commonwealth”).
Despite John’s disability he has the benefit of healthcare coverage and is protected by a system (the police union) within a system (the government). His work-life contributions entitle him to care after having become disabled, whereas Laurie has no safety net other than that of either her former husband or the taxpayers of the Commonwealth.
The Clement case highlights the third entity in a marriage, the state. When talking to divorcing clients about support and health insurance I often find myself discussing the intersection between individual rights and the rights of the Commonwealth and its taxpayers. The facts of this case bring to mind Hubert Humphrey’s words at the November 1, 1977 dedication of the naming of the Hubert Humphrey Building in Washington, D.C. where he spoke about the weakest members of society as a reflection of its government saying “the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.”
Societal changes often lay the foundation for changes in the law. This is apparent when reflecting back on the impact of the 1960’s and the sexual revolution, and the co-parenting and divorce law changes that emanated from those times. Medicare for all and the political movement of healthcare as a human right are current societal struggles, both of which the circumstances of John and Laurie throw into stark relief.
Note bene: Prior to publication of this blogpost, it was discussed with and reviewed for factual background by Atty. Julie Hess, Appellate counsel for John Clement, and Atty. Joseph Clermont, who represented Laurie Owens-Clement during both the original trial and on appeal.