Copyright (c) 1990 New England School of Law
New England Law Review
Volume 24, Spring 1990; article begins on page 745
REPRINT: Gender Bias Study of the Court System in Massachusetts *
* The Gender Bias Study of the Court System in Massachusetts
(Gender Bias Study) is an official report of the Massachusetts Supreme
Judicial Court. In 1986, Chief Justice Edward F. Hennessey appointed
the Gender Bias Study Committee to determine the extent and nature of
gender bias in the Massachusetts judiciary and to make recommendations
to promote equal treatment of men and women. The Gender Bias Study is
the result of the committee's research.
New England Law Review
has published the Executive Summary, Family Law, and Civil Damage
Awards sections of the Gender Bias Study in their original form. The
Introduction, Domestic Violence and Sexual Assault, and Gender Bias in
Counthouse Interactions sections can be found in volume 23 of Suffolk
University Law Review.
New England Law Review expresses its appreciation to
Gladys E. Maged, Executive Director of the Committee for Gender
Equality, and Lois Frankel, Assistant Director, for their assistance in
publishing this material.
TEXT:
[*745]
Executive Summary
Gender bias exists in many forms throughout the Massachusetts court
system. Sexist language and behavior are still common, despite an
increased understanding that these practices are wrong. Beyond these
overt signs of bias, many practices and procedures exist that may not
appear motivated by bias but nonetheless produce biased results.
We found gender bias to be in operation when decisions made or actions
taken were based on preconceived or stereotypical notions about the
nature, role, or capacity of men and women. We observed the effect of
myths and misconceptions about the economic and social realities of
men's and women's lives and about the relative value of their work.
Throughout this report the workings of bias are illustrated in
statistical data, expert testimony, and first-hand accounts of people
using the court system.
In issuing this report, the Gender Bias Study Committee has completed
the task set forth in its mandate: to determine the extent, nature, and
consequences of gender bias in the judiciary and to make remedial
recommendations to promote the fair and equal treatment of men and
women. As we pursued this task over the last three years, our attention
was increasingly drawn to the larger goal underlying our mandate: the
elimination of gender bias in any form from our judicial system.
[*746] We believe that this larger goal can and must be
achieved. Time and resources are needed, but the most critical need is
for committed leadership. This type of leadership has already been
demonstrated by members of the judiciary, the legislature, and the bar
in their support of our study. It is to this same source that we look
for the courage and commitment to complete the job.
Because we believe so strongly that this goal can and should be
achieved we intend to propose to the Supreme Judicial Court the
appointment of a Commission to Eliminate Gender Bias in the Courts.
This Commission will monitor recommendations contained in this report
and formulate guidelines, standards, and procedures needed to implement
them. The Commission will foster educational efforts for the bar,
judiciary, court employees, and the public, and it will work in
cooperation with any other organization or department that is pursuing
the goal of eliminating gender bias.
This report endeavors to evaluate many aspects of how the courts
function, including the performance of judges. But to paint a fair
picture, it must be noted that the overwhelming majority of judges and
other employees of the court system do a remarkable job in serving the
public. The men and women working in the judiciary do so in the public
interest. And they do this day in and day out, despite the many
challenges and difficult conditions they face.
Gender bias was not born in the court system. Rather, it reflects the
prevailing attitudes and conditions of our society. Regardless of its
genesis, the cost of gender bias is great. The court system must
examine its role in continuing and contributing to gender bias, and it
must work to correct the problems that exist. As you read this summary
and the fuller documentation and discussion contained in our report, we
believe that you will join us in the conviction that gender bias must
be eliminated from our system.
FAMILY LAW
Research studies from throughout the country indicate that women's
standards of living consistently decrease more than men's after a
divorce because women are left with a disproportionately large share of
the cost of raising children and a disproportionately small share of
the marriage's wealth and earning power. The economic inferiority of
women after divorce is inseparable from the problems women experience
in getting and enforcing support and alimony orders. The issue of
custody is inseparable from the economic issues of family law, and
here, too, women face discriminatory attitudes and actions.
As we began our investigation of alimony, child support, and child
custody, we noted that three aspects of the family law system
consistently, and negatively, affect women. The first and most serious
is lack of access to adequate legal representation: many women cannot
obtain [*747] the assistance they need, particularly in the
crucial first days and months after separation. Women without legal
representation (
pro se) find the system difficult to navigate,
and free legal services are often not available to them. Private
counsel may be unwilling to represent women because of the difficulty
obtaining adequate awards of counsel fees during, and sometimes after,
a trial. The second issue is repeated concern expressed by family law
attorneys regarding the accuracy of financial data presented to the
courts and the failure of the courts to take seriously the rules
surrounding discovery in family law cases.
Lastly, our investigation raised questions about the use of mediation,
as practiced in the probate courts, to settle family cases. Mediation,
as it is commonly defined outside the courts, presupposes equal parties
and a neutral mediator. Our research indicates, however, that women
involved in divorce proceedings are often not on an equal footing with
men. Women involved in the probate court's mediation of cases are
frequently at greater economic risk, have less information about
marital assets, and less information about their legal rights. They are
also much more likely than men to bargain away property to get their
preferred custody or visitation arrangements. The inequality between
the participants is particularly severe when one party has been
physically abused by the other.
Although we feel strongly that parties should not be forced to mediate
inappropriate cases or be coerced into settlement, we recognize that
the family service officers who handle cases in the probate court
provide a crucial service to both the courts and the litigants. We
support the practice of referring litigants to them within the
guidelines that we have delineated in our recommendations.
In the area of alimony, the Committee found that very few women receive
alimony awards, while even fewer women receive awards that are
adequate. While many alimony awards undervalue the contributions of the
homemaker to the family, they also overvalue the earning potential of
homemakers who have long been out of the labor market. Further, only a
minority of the alimony awards ordered ever get collected. This has a
grave impact on those most dependent on alimony, particularly older
homemakers who no longer receive child support and who have decreased
earning potential because of years spent on childrearing. These women
must rely on their own resources to bring contempt action in cases of
nonpayment, and they receive little help from the courts.
We began our investigation of child custody aware of a common
perception that there is a bias in favor of women in these decisions.
Our research contradicted this perception. Although mothers more
frequently get primary physical custody of children following divorce,
this practice does not reflect bias but rather the agreement of the
parties and the fact that, in most families, mothers have been the
primary [*748] caretakers of children. Fathers who actively
seek custody obtain either primary or joint
physical custody
over 70% of the time. Reports indicate, however, that in some cases
perceptions of gender bias may discourage fathers from seeking custody
and stereotypes about fathers may sometimes affect case outcomes. In
general, our evidence suggests that the courts hold higher standards
for mothers than fathers in custody determinations.
Family service officers, probate judges, and appellate judges all say
that giving primary consideration to the parent who has been the
primary caretaker and psychological parent is in the best interests of
children. In practice, however, it appears that as soon as physical
custody is contested, any weight given to a history of primary
caretaking disappears. Mothers who have been primary caretakers
throughout the child's life are subjected to differential and stricter
scrutiny, and they may lose custody if the role of primary caretaker
has been assumed, however briefly and for whatever reason, by someone
else.
Two other aspects of child custody determination raised concern for us.
The presumption in favor of shared legal custody that is currently held
by many family service officers can result in the awarding of shared
legal custody in inappropriate circumstances. We also found that abuse
targeted at the mother is not always seen as relevant to custody and
visitation decisions. Our research indicates that witnessing, as well
as personally experiencing, abuse within the family causes serious harm
to children.
Women seeking child support enforcement have frequently found
themselves facing an unresponsive and sometimes hostile system. We are,
however, currently in a transition period. The court and the Department
of Revenue (DOR) are establishing a new system that promises to be
well-coordinated and responsive. Our study identified some key issues
to be resolved during the transition period. Nonpayment must be met
with predictable, steadily escalating enforcement sanctions. The child
support guidelines, which have led to increased child support orders,
should be used consistently in all courts. The standard for
modification of an order must be redefined. Currently, the standard is
so strict that it denies women modifications to which they are
entitled. The court and the Department of Revenue need adequate
resources to complete this transition. The community has a role to play
in holding the court and DOR to the promise of a more responsive and
respectful system that is focused on serving parents seeking support.
Even when these reforms are accomplished, however, it will not ensure
adequate income for all families. Families will still suffer economic
hardship when there just isn't enough income to support two households.
A progressive family policy may need to include economic parenting
supplements, tax code revisions, or other methods that ensure adequate
income to children and fair treatment of both parents.
[*749] RECOMMENDATIONS:
Access to the courts by pro se litigants should be improved
by designating personnel to assist them, educating all court personnel,
and eliminating rules and procedures that act as barriers for pro se
litigants. The private bar and legal services organizations should
devote more resources to representation of women in family law cases.
Judges must award adequate attorney and expert fees during the pendency
of divorce litigation.
The probate court financial statement form should be changed to
require the disclosure of accurate data concerning the valuation of
pension and other deferred compensation and retirement rights. The
probate court rules should require that counsel for the parties sign
financial statements and certify to the correctness of the statements.
The rules should call for parties to a divorce to recognize marriage as
a "partnership." It should place the responsibility of full disclosure
upon the divorcing parties, and it should authorize sanctions for
failing to do so.
Family service officers should be relieved of any pressure that
might lead them to coerce settlements. Parties to mediation must
understand the particular nature of mediation in the probate court and
should be routinely informed that their case can be heard by a judge if
they so desire. Both family service officers and judges need to be
sensitized to signs of unequal power in the dynamics between the
parties, unfair concessions, and the effects of abuse on the parties
and on the children whose custodial parent is being abused.
M.G.L. c. 208, § 34, the statute regarding division of marital
property, should be amended in the following manner: 1) lost career
opportunities resulting from child-care responsibilities should be
added to the list of mandatory factors to be considered by judges in
determining alimony and property awards, and 2) a consideration of the
tax consequences to each of the parties resulting from property and
alimony dispositions should be required. Enforcement provisions, such
as security interests, bonds, and wage assignments, should be included
in financial orders. In addition, judges should be required to impose
appropriate civil and criminal penalties for noncompliance with court
orders concerning alimony and property division.
The legislature and/or appellate courts should better define the
"best interests" standard to direct judges to give primary
consideration to the parent who has been the primary caretaker and
psychological parent throughout the child's life, not merely from the
point of separation.
Permanent shared legal custody should be awarded only when the
parents submit an acceptable shared legal custody plan to the court and
the court finds that the parents are willing and able to work together
to make major decisions concerning the children.
The legislature and/or appellate courts should make it clear that
abuse of any family member affects other family members and must be
considered in determining the best interests of the child in connection
with any order concerning custody. If access to the child is allowed,
judges should be directed [*750] to make arrangements to
protect any family member from further abuse.
The Department of Revenue should be given the resources to handle as
many cases as possible to provide the greatest amount of assistance to
the most people. DOR should issue written directives to emphasize to
its staff and court staff that collection of support is not secondary
to collection of arrears and that support payments are vital for the
well-being of femaleheaded families, including those receiving public
assistance and those who are not.
Automatic periodic updating of child support orders, in accordance
with guidelines, should become standard practice through revision of
the statute and a change in practice of the family law bar. The current
child support guidelines should be made presumptive in order to further
increase consistency from court to court and to continue the trend of
making orders more reflective of the real needs of children. When the
guidelines' content is reassessed as required by federal law, any
change should be to reduce the disparities between women's and men's
households after family breakup.
VIOLENCE
Women are disproportionately affected by crimes of violence involving
nonstrangers -- colleagues, friends, relatives, or husbands. Beyond the
"personal" impact on the victim, the high incidence of violence against
women by acquaintances and relatives raises significant legal issues
which challenge the long-held presumption that such matters are best
left to the private sector and outside the realm of the courts.
In 1978, Massachusetts passed M.G.L. c. 209A, which provides that in
emergency situations women may obtain orders mandating that their
abusers, in a domestic situation, refrain from violence against them.
The law makes this process as easy as possible, allowing women to
obtain this relief on their own, without having to retain counsel, and
allowing them to enter most courts in the state for these orders.
Unfortunately, a disparity remains between the protection afforded to
the victims by the statute and the actual manner in which the statute
is being applied.
The Committee was impressed to find that petitions for orders of
protection under c. 209A are almost always granted. Judges are
providing women with the immediate relief from abuse that is available
under the statute. Nonetheless, the Committee discovered several areas
where improvement is crucial to ensure that women have access to the
full protection of the law.
While the law allows for proceedings to be
pro se, litigants not
represented by counsel or assisted by trained advocates are not always
able to obtain child custody, support, or other benefits available
under the statute. The problem is exacerbated when one party, usually
the male respondent, is represented by counsel and the female
petitioner is not.
[*751] The Committee also found that women contend with
barriers to full use of the statute when they are faced with
insensitive treatment and misleading information regarding their rights
under the law. This problem is particularly acute when they get unclear
or wrong information about the jurisdictions of the probate and the
district courts.
The Committee is also concerned that domestic abuse cases in the civil
and criminal arena may not receive the emphasis they merit and that
this underlies the poor coordination between the courts and law
enforcement agencies. This results in delays in the service of abuse
prevention orders. Likewise, we heard many reports that the courts are
not using the sanctions available to them to punish the violation of
orders in a way that would clearly and publicly convey the message that
abusive behavior is not acceptable. Further, judges' decisions should
make clear that, just as the criminal law punishes violence occurring
among strangers, the criminal law will also punish violence committed
among people who are related or share a household.
In our research on sexual assault, the Committee discovered that the
"rape shield" law is being correctly applied by judges and that sexual
assault cases are generally treated very seriously by prosecutors. The
vast majority of sexual assault cases involve parties who know each
other. While most people feel that these cases should be treated in the
same manner as cases of sexual assault by strangers, it appears that
this does not always occur. Sentences seem to be set lower in cases
where the victim and her assailant were acquainted. Stereotypes about
relationships and victims' requests for lower sentencing in cases of
acquaintance assault were both offered as reasons for lower sentences.
According to survey responses, attorneys believe that jurors expect
more corroboration in sexual assault cases than in other felonies of
like seriousness and that jurors accord sexual assault victims less
credibility than they do victims of other felonies of like seriousness.
It is less clearcut how judges perceive victims. Although half of those
surveyed agreed that judges accord sexual assault victims the same
credibility as victims of other serious felonies, the responses of the
rest of the attorneys differed depending on the sex of the respondent.
A significant difference of opinion exists between the legal community
and the rape crisis community regarding case dismissal policies. Police
and prosecutors contend that virtually the only reason for dismissal of
sexual assault cases is the victim's unwillingness to prosecute, while
rape crisis counselors cite lack of prosecutorial zeal and
discouragement of victims bY prosecutors as the chief reasons for
dismissal. All parties agree that the victim/witness assistance
programs provide much encouragement and support to victims.
It is clear that the judicial system has become increasingly sensitive
to the unique issues sexual assault cases present. It is equally clear
that room for improvement remains. In order to encourage victims to
report [*752] and prosecute these cases, it is important to
eradicate the perception of the courthous as a hostile environment with
few allies for the sexual assault victim. The legal system must remain
focused on a greater expectation and vision that challenges the system
to be vigilant in its aim for justice unfettered by society's
prejudices.
RECOMMENDATIONS
The courts must assert that the protection of women in abusive
situations and the censure of abusers is a priority for the judicial
system. More sensitive treatment of women seeking relief, accurate
information regarding their rights, improved coordination with law
enforcement agencies, and increased use of sanctions for violation of
orders would all contribute to this goal.
Victim/witness advocates, trained court personnel, and pro bono attorneys should be available to assist parties in cases of domestic violence to the full extent possible.
Training should be provided for judges, jurors, court personnel,
probation officers, clerks, registrars, family service officers, and
attorneys. The bar and members of the public need to be educated to
recognize domestic violence, to know the legal remedies, and to treat
victims with sensitivity.
More victim/witness advocates should be hired. They should be better
trained and better paid. In furtherance of these goals, the Victim and
Witness Assistance Board should be encouraged to continue to evaluate
on an ongoing basis the availability and quality of assistance in each
county, and to continue improving services based on recommendations of
both professionals and citizens.
More training of prosecutors is needed, especially in the area of
sensitivity to the feelings of trauma, embarrassment, and shame felt by
victims. Prosecutors should also receive training that helps them to
understand victims' fears of the court process.
Prosecutors are encouraged to consider the use of direct
indictments, eliminating the need for a probable cause hearing, to
reduce the trauma to victims of testifying repeatedly.
District attorneys should devise and implement specific case
dismissal policies for sexual assault cases. Such policies should
include: 1) provisions for seeking input from rape crisis counselors
before seeking dismissal; 2) provisions ensuring that victims are
informed of the strengths and weaknesses of the case and are encouraged
to come forward and prosecute; 3) provisions requiring that victims be
given notice and an opportunity to be heard in cases where dismissal is
contemplated.
The Commission to Eliminate Gender Bias in the Courts should work
with the district attorneys' offices, representatives of the rape
crisis community, and other appropriate groups to examine: whether
judges are correctly applying laws concerning disclosure of privileged
information; whether case dismissal policies vary significantly by
county; public attitudes concerning [*753] the credibility
of sexual assault victims and sexual assault by acquaintances; why
judges and other sources disagree as to whether sentences are lower in
sexual assault cases where the parties are acquainted. Among the
questions to be answered are whether prosecutors make lower
recommendations in these cases and to what extent the recommendations
and sentences reflect the wishes of the victims.
Public education is needed. Attorneys and judges should be
encouraged to participate in bar-associated programs that educate the
public. It is important that the public, particularly youth, be
educated about the definition of rape, and the definition of sexual
assault in its broadest sense. We support legislation authorizing
public schools to teach healthy alternatives to violent behavior.
Bar associations should cooperate with rape crisis advocates and the
media to prepare and disseminate educational materials for victims and
the public that inform them of the definition of rape, the resources
available through rape crisis centers and victim/witness units, and the
increased support for victims of acquaintance rape.
CRIMINAL AND JUVENILE JUSTICE
The special needs and circumstances of female offenders pose unique
challenges to the criminal justice system. Where the treatment of young
girls does not respond to the demands of their lives and the treatment
of adult female offenders does not acknowledge the ways in which their
criminal histories, the crimes they commit, and the responsibilities in
their lives are different from those of men, the system is biased
against the women who come before it.
In the Massachusetts juvenile justice system, status offenders such as
runaways are serviced by the Department of Social Services (DSS),
delinquent offenders by the Department of Youth Services (DYS).
Although there are serious problems facing both male and female
juveniles, testimony, surveys, and statistics all support the
conclusion that girls are disadvantaged to a greater extent than boys
in the area of DSS and DYS placement and service.
Testimony indicates that service providers view girls as harder to
handle than boys. Thus, even though in certain age categories more
girls than boys require services, providers offer fewer programs for
girls. Judges, in turn, commit a disproportionately high percentage of
girls to DYS in the hope that the girls can be secured, stabilized, and
provided with services not available from DSS. They base commitment
either on contempt charges in CHINS (Children in Need of Services)
cases or on detention for a minor delinquency offense. Unfortunately,
our evidence indicates that often girls do not get the services they
need at that point either, since the majority of the programs offered
by DYS are male-oriented. In essence, girls are being detained to a
greater extent than is merited in the hope that they can be helped, yet
at no point [*754] are services sufficient to give them the
help they require. Testimony from representatives of DYS reveals that
the department is attempting to deal with the lack of female-oriented
programs and facilities.
Our study of adults in criminal justice focused on bail, sentencing,
and probation and was limited to preliminary questions. The criminal
histories, crimes committed, and life responsibilities of women and men
are very different, so a thorough study of gender bias in these
processes would require an in-depth study of individual cases. Since
limited resources precluded such a study, the Committee focused its
bail, sentencing, and probation research on discrete issues that might
affect the treatment of female offenders during the various phases of
the judicial process. Our study of the incarceration of women
investigated the Massachusetts Correctional Institution (MCI) at
Framingham.
In the areas of bail and sentencing, the Committee focused on two
discrete issues related to family responsibilities: child-care and
financial responsibility. Controlling only for the impact of these two
variables on the treatment of male and female offenders, attorneys'
responses suggest that they are not the major determinants influencing
judicial decision making in the areas of bail setting and sentencing.
Though our data regarding these variables are informative, other
factors must be considered to thoroughly understand differences in the
experiences of men and women at the bail-setting and sentencing stages.
The Committee also looked at the effect of substance abuse treatment
needs on bail and sentencing. Judges reportedly recognize the needs of
women to the same extent as those of men. The lack of appropriate
programs may, however, lead to different sentencing patterns between
male and female offenders, though attorneys surveyed do not agree on
whether the lack of programs results in higher incarceration rates for
women or for men.
Finally, many attorneys reported that paternalistic statements are made
to women in the sentencing process that are not made to men. This
demonstrates that some judges still have sexist notions regarding the
role of women.
The Committee focused its study of women's experiences with probation
on the risk/needs classification system. Apparently, the original
risk/need classification system was based on a model of the male
probationer. The Committee commends the Office of Commissioner of
Probation for taking a look at this model and at the women who are
subject to it. However, several areas remain where there is a risk of
punishing women for their inability to conform to a system that may not
take into consideration the ways in which their lives are different
from men's. In particular, the factor of employment raises the question
of whether the supervision levels and plans of female probationers, who
often have child-care responsibilities and are unable to work outside
of the home, [*755] require them to meet more stringent
requirements of supervision than male probationers.
In addition, we are concerned that women have slightly longer
supervisory periods than men. The length of these periods is
inconsistent with the fact that women commit fewer crimes against the
person and have fewer prior court appearances than men.
Finally, the personal and family issues faced by the typical female
probationer appear significantly greater in number and complexity than
those of the typical male probationer. Among other consequences, this
may result in the female offender having to contend with a myriad of
bureaucracies and agencies. This can be overwhelming and self-defeating.
In regards to women who are incarcerated, the most glaring disadvantage
to women is that almost all female offenders and detainees are
incarcerated at one central facility, MCI-Framingham, whereas men
awaiting trial or serving shorter county sentences are housed in local
county facilities. Only a small number of women are at other state or
county facilities.
The Awaiting Trial Unit at MCI-Framingham, which is under the auspices
of the courts, has held women under deplorable and dangerously
overcrowded conditions for years. Because women are held at one
centralized facility, rather than at localized facilities, they are at
a significant disadvantage to similarly situated men who are held in
county facilities much closer to their home communities. This results
in severe limitations on women's access to legal assistance, bail
review, enrollment in community-based programs, and visitation with
children, family, and community contacts. Desperately needed health
services and treatment programs are also limited by this situation.
RECOMMENDATIONS:
Training for judges and probation officers should focus on possible
paternalistic and protective attitudes that may cause them to place
girls in more protective settings than are warranted, while perhaps
underestimating the needs for protection of boys. Likewise, training
should help judges identify ways in which stereotypes may affect their
decision making in cases involving adult offenders, and it should
emphasize the proper ways to address these offenders.
The Department of Social Services should recognize the needs of its
female clients and provide programs that meet those needs. These
programs should include more independent living slots, short-term,
respite placements in a small group setting that is personnel secure,
and services that address the drug and parenting needs of girls.
The judiciary should keep abreast of current research into the types
of crimes committed by female offenders, suggested causes for their
criminal behavior, and the current thinking on steps necessary to curb
further criminal [*756] activity. Judges, in setting
criminal sentences, should be cognizant of the factors that are unique
to female offenders and should craft criminal dispositions that address
their needs.
M.G.L. c. 123, § 35, should be revised to reflect that the
Department of Public Health is responsible for providing the district
courts with a list of available substance abuse treatment programs. A
mechanism for ensuring that this occurs should likewise be established.
Further, the judiciary should become an advocate for additional
resources for substance abuse treatment.
The Office of Commissioner of Probation is encouraged to continue
its research and training on women and probation. In specific, studies
should investigate the appropriateness of each factor included in the
Risk/Needs Assessment to ensure that all of them are valid determinants
of the risks and needs associated with women. The next revision of the
forms should include the factor of employment within the home, so that
researchers can determine empirically the effect of this occupation on
the criminal activity of female offenders.
The Office of Commissioner of Probation should investigate patterns
of technical violations of probation, since it may be that women, given
their greater child-care responsibilities, are susceptible to more
technical violations than men. In this same vein, the Office of
Commissioner of Probation should assist female probationers to
coordinate and, if necessary, resolve the sometimes conflicting and
overwhelming demands of the agencies trying to help them.
Women awaiting trial and serving county sentences must not all be
held in one centralized facility. Plans for establishing regional
facilities should be enacted as quickly as possible to reduce the
severe overcrowding and to place women closer to their home communities.
The Department of Correction, county officials, the advocacy
community, and the Commission to Eliminate Gender Bias in the Courts
should work in coalition to oversee the creation of new beds for women
to ensure that their needs are met.
Until women are moved back to local facilities, every effort should
be made to encourage community-based service providers to give priority
to those county women held away from their home communities.
Whenever a woman can remain in the community, such as through local
detoxification facilities, day-reporting centers, or alternative
sentencing programs, this should be encouraged.
CIVIL DAMAGE AWARDS
Our research tried to determine if the amount of damages awarded in
civil actions depends on whether the plaintiff is male or female.
National surveys and the opinions of local personal injury attorneys
indicate concern about the possibility of bias in these awards. To
obtain objective data from Massachusetts jurors, we surveyed people
called for [*757] jury duty about the awards they would
give in a hypothetical personal injury case. The research was carefully
controlled so that we could draw conclusions about the influence of the
plaintiff's gender on the awards.
There is no statistically significant difference between awards given
to male and female plaintiffs when the responses to the jurors' survey
are analyzed collectively. When juror responses are divided into
groups, however, the influence of bias emerges. The data suggest that
women respondents, no matter what age group, treated male plaintiffs
and female plaintiffs the same. In contrast, men under forty gave the
female plaintiff higher awards for medical expenses, while men over
forty favored the male plaintiff in the awarding of damages for both
diminished earning capacity and pain and suffering.
We have come to some tentative conclusions about the presence and
absence of gender bias among jurors hearing and deciding civil cases
and recommend steps to be taken to ensure that bias does not affect
jury decisions. But more research is essential if we are to achieve a
fuller picture of how bias operates in this area.
RECOMMENDATIONS:
The handbook all jurors receive should be modified to stress that
the gender of litigants, without more, is an impermissible basis for
making decisions. The orientation video shown to jurors should be
modified to stress the impropriety of making decisions on the basis of
the gender of the parties or witnesses.
Judges should consider instructing jurors that, in making decisions,
they are not to be influenced by the gender of the parties. The
following short and straightforward instruction could be used in
virtually all cases: "Your verdict must be based solely on the evidence
developed at trial. It would be improper for you to consider any
personal feelings about the defendant's race, religion, national
origin, sex, or age. Those personal feelings are not a proper basis for
deciding any issue of fact you are required to decide in this case, and
you must not allow them to influence you in making the important
decision you are about to make."
GENDER BIAS IN COURTHOUSE INTERACTIONS
Women today have opportunities and roles open to them that were
undreamed of a hundred years ago. This is true in the court system, as
it is throughout our society. Yet barriers and discrimination still
exist. From their entrance into the courthouse and throughout their
participation in the business of the courts, female litigants,
witnesses, employees, and attorneys are faced with unnecessary and
unacceptable obstacles that can be explained only in terms of their
gender.
Women in the Massachusetts courts, whether they be attorneys,
litigants, [*758] witnesses, or employees, suffer
discriminatory treatment at the hands of some male judges, attorneys,
and employees. Although male attorneys emerged in our research as the
worst offenders, we must also recognize the part that court employees
play in making the courthouse environment an uncomfortable and
sometimes hostile place for women. Although judges were reported to
exhibit gender-biased behavior less often than other groups, their
responsibility for setting the standards of behavior in the courthouse
increases the impact of their actions. Judges are the role models and
the authorities for attorneys and employees. Accordingly, the evidence
of judicial bias is most disheartening.
As litigants and witnesses, women are subjected to inappropriate terms
of address, suggestive comments, unwanted touching, yelling, and verbal
harassment. Women litigants who must bring their children to court are
further burdened by the lack of day care facilities and flexibility in
court schedules.
Female attorneys are also subjected to conduct ranging from
discriminatory treatment to sexual harassment; this conduct is
especially pronounced toward minority attorneys. Female attorneys are
also disadvantaged in the area of court appointments, where they are
significantly underrepresented among attorneys appointed by the Trial
Court and Committee for Public Counsel Services.
This bias undermines the credibility of female attorneys, hampering
them in their role as an advocate, and weakening female litigants'
testimony. When women, in their diverse roles, are denied credibility
because of their gender, the courts are seriously impaired in their
ability to deliver justice to anyone in our society.
During the course of our research we sometimes encountered perceptions
that biased treatment of women in the courts is a trivial matter or
that reports of this treatment are exaggerated. As the chapter on
courtroom environment in this report illustrates, however, women have
good cause to anticipate that they will be treated differently than
men. Furthermore, biased attitudes do more than hurt feelings. They
affect women's ability to function in the system, and they are linked
to unjust outcomes.
RECOMMENDATIONS:
The Commission to Eliminate Gender Bias in the Courts, appointed by
the Supreme Judicial Court, should issue a statement condemning
gender-biased behavior in the courts. It should urge every court and
state and local bar association to adopt this statement. Guidelines for
courtroom behavior developed by the Commission should be issued to all
judges and court employees.
The Supreme Judicial Court should consider authorizing a study of
racial [*759] bias and taking actions comparable to those
recommended by this Committee in an effort to eliminate racial bias.
The Commission will work with the bar associations to establish a
clearinghouse function for complaints regarding gender-biased conduct,
provide a means of informal dispute resolution, and serve as a liaison
with the judiciary on these issues. This clearinghouse should sponsor a
regular column in the Massachusetts Lawyers' Weekly that
includes discussion of gender bias issues, describing in an anonymous
fashion examples of this behavior and suggesting concrete actions that
could be taken to address the situation.
The Commission will work with the Judicial Performance Evaluation
Advisory Committee to ensure that gender-biased behavior becomes an
integral part of judicial evaluation. The Commission will work with the
Judicial Training Institute, the Flaschner Institute, the various
departments of the trial courts, and others to incorporate teaching on
gender bias into training for judges and court employees.
When a substantiated complaint involving gender bias has been lodged
against a judge with the Judicial Conduct Commission, the judge
involved should be required to participate in appropriate training or
consultation regarding this behavior.
The Chief Justice of the Superior Court should ensure that at least
one superior court judge in each county is available at all times to
hear § 12S petitions for consent to abortions.
The Judicial Nominating Council, the Joint Bar Committee, the
Executive Council, and the Governor's Legal Counsel should continue to
encourage women to apply for appointment as judges and
clerk-magistrates and make every effort to appoint women to courts in
locations where few women currently serve.
The Commission should work with the chief justices of the Trial
Court departments, the Committee for Public Counsel Services, and the
bar associations to review and improve the system of appointment of
attorneys by the courts including establishing and publicizing lists of
available attorneys for appointment and the qualifications for
appointments; and establishing effective recruitment to ensure full
participation by women and minorities.
The Chief Administrative Justice and those responsible for court
facilities should see that all courthouses are wheelchair accessible,
including automatic doors and ramps, and that they have supervised
waiting areas for children and spaces for day care, such as the Roxbury
District Court Child Care Center.
COURT PERSONNEL
The work of the court system's employees is critical to the efficient
operation of the courts and to the public's image of the judicial
system. Because of this, we reviewed employment practices to determine
which practices might indicate active discrimination. We were
immediately [*760] struck by the significance of a key
overriding condition that seriously affects all employees: job
segregation.
As is true throughout the American workplace, many workers in the
Massachusetts courts labor in positions that are clearly dominated by
either women or men. In the Trial Court, which employs more than 95% of
the total court workforce, three-quarters of the job titles with four
or more job-holders are held by over 70% men or over 70% women. Women
account for 90% of the workers in clerical track jobs, while men
dominate in the higher ranked positions.
Although some progress has been made through the efforts of the
Affirmative Action Office of the Chief Administrative Justice of the
Trial Court, statistics on the proportion of women in the upper
managerial positions show that there is still a long way to go. In
addition to job segregation, we also analyzed several more specific
features of the employment situation: compensation, promotions,
appointed positions, and working conditions.
In the area of employee compensation, we studied the Trial Court
evaluation system devised by Arthur Young and Co. We found that
although the system is consistently applied to the positions it covers,
the male-dominated, high-paying position of court officer is not
included in the system. Our research was not extensive enough to draw
conclusions about whether values (which underlie the evaluation system)
were assigned in a gender neutral way.
In the area of promotional opportunities, our research shows that
gender does not have a negative impact on the promotions of women
through most of the clerical track, though there may be a barrier to
access to the higher positions in that track. However, the substantial
underrepresentation of women at the assistant clerk level suggests that
they are impeded from advancing beyond the traditional clerical track
in any meaningful numbers. Our research also found that race seems to
have a negative impact on access to promotions. The condition and
extent of employment records precluded a meaningful investigation into
additional aspects of the promotions picture, as well as the related
area of hiring.
The Committee also investigated women's access to two appointed
positions that are high in pay and prestige, those of judge and
clerkmagistrate. Though only one out of ten judges is a woman, there
has been notable progress toward increasing the number of women on the
bench. The current governor, Michael S. Dukakis, and the Judicial
Nominating Committee appear committed to this increase, though criteria
for nomination could be better articulated and recruitment efforts
could be improved. The position of clerk-magistrate shows no comparable
progress, with the applicant pool and the resulting appointments
remaining heavily male-dominated.
Run-down and inadequate facilities mean that the working conditions
[*761] of the Trial Court are, in general, unpleasant for
all employees. But, women report that they face additional problems,
specific to their gender, including sexual harassment, other
disrespectful treatment, and disadvantageous application of work rules,
policies, and assignments. Both women and men believe that the Trial
Court should provide day-care facilities and institute job sharing and
flexible working hours so as to facilitate the employment and retention
of working parents.
RECOMMENDATIONS:
The courts must aggressively counter job segregation. In particular,
the Trial Court Affirmative Action Office should actively recruit women
to positions that are currently male-dominated and should investigate
those positions for barriers that may exclude women from their ranks.
Examples of positions that should be targeted for affirmative action
efforts are assistant and chief probation officer, assistant clerk, and
court officer.
The Judicial Nominating Council and the governor should structure
their recruitment, evaluation, recommendation, and appointment
processes to ensure that the percentage of female judges in the
Commonwealth equals, at a minimum, the percentage of women in the
active bar. Special efforts should be made to recruit and advance the
candidacies of female applicants for the position of clerk-magistrate.
The Trial Court job evaluation system should be thoroughly examined
to determine whether it has a built-in gender bias, failing to value or
undervaluing traits associated with female-dominated job
classifications. The probation officer and court officer job titles
should be included in the Trial Court job evaluation system and paid in
accordance with the established criteria.
The trial court should train managers and judges regarding treatment
of equal dignity for both genders; sensitivity to the problems of
sexual harassment experienced by female employees; and gender-free
employee evaluation. Bar and other relevant professional associations
should be encouraged to educate their members on these issues.
COMPLETING OUR TASK
The elimination of gender bias from the court system requires time and
resources. As a first step, the Supreme Judicial Court should appoint a
Commission to Eliminate Gender Bias in the Courts. This report makes
many recommendations that entail change throughout the system. An
ongoing body is needed to oversee their implementation. To be
effective, this commission must be composed of active members and have
staff support.
But the work of the commission alone will not be enough. We need
courageous and committed leadership coming from all levels of the court
system. The courts and the legal community displayed this type
[*762] of leadership when they chose to undertake the
public self-examination entailed in this study. What is called for now
is a continued commitment by the leaders of the judiciary, the bar, the
legislature, and citizen's groups to see that the task is completed.
The citizens of the Commonwealth deserve a court system free of gender
bias. This is a goal we can and must achieve.
Family Law
OVERVIEW
Our work in the subcommittee studying family law issues was motivated
in part by the growing statistical evidence that women suffer
tremendous negative economic consequences following the dissolution of
a marriage. This evidence is so provocative that it led us to examine
whether national data on the economic consequences of divorce are
applicable to Massachusetts and, if so, whether gender bias in the
family law system contributes to the precarious economic status of
women after divorce.
Research studies from throughout the country indicate that women's
standards of living consistently decrease more than men's after a
divorce, resulting in a tremendous difference between the lifestyles of
women and those of their former husbands. In Vermont, for example, a
recent study found that men's income went up 120% following divorce,
while women's income decreased by 33% (Wishik, 1986). In California, a
study of postdivorce income revealed that, for middle-income couples
married ten years or less, the husband's per capita income was 83%
higher than the wife's (the wife was generally the primary caretaker of
children). For higher-income families, the discrepancy between men's
and women's postdivorce per capita income was 144%. The same study
indicated that with respect to standard of living, the woman's standard
declined 73% in the year following divorce, while the man's increased
by 42% (Weitzman, 1985). Another study using national data from 1969 to
1975 found that in the first year following divorce or separation, the
family income of women dropped to 70% of their previous income. Over
40% of the women had their incomes drop by more than half, compared to
only one-sixth of the men (Duncan and Hoffman, 1985).
According to these studies, the drop in women's economic standing
occurs because women are left with a disproportionately large share of
the cost of raising children and a disproportionately small share of
the marriage's wealth and earning power.
The decline in women's standard of living after a divorce is one of the
major reasons that female-headed households are now the fastest
[*763] growing segment of the poverty population.
Statistics gathered by our committee clearly show that Massachusetts is
very much a part of the national trend toward poverty for families
headed by women: n1
Massachusetts is fifth in the nation in the percentage of
families headed by women. Only the District of Columbia, New York,
Georgia, and Mississippi have a higher proportion.
The feminization of poverty in Massachusetts is more acute than
elsewhere. Nationally, 48% of those living below the poverty level are
mothers and children; here, 68% of the poor are mothers and children.
Female-headed households in Massachusetts are eleven times more likely
to be in poverty than two-parent families, more than twice the national
average.
In 1984, 70% of the female-headed households in Massachusetts had
incomes below $ 20,000, while 80% of the two-parent families had
incomes over $ 20,000.
The family law system is an important area in which to explore
solutions to the problems of economically disadvantaged women. Although
the causes of women's desperate economic conditions are complex and
deeply ingrained in our society, the courts must examine whether they
play a role in continuing and contributing to women's inferior economic
and social status. Divorce is a financial disaster for most low or
middle-income families, and supporting two households on the income
that previously supported only one can strain the resources of all
family members. While committee members realize that the negative
consequences of divorce are felt by both husband and wife, the task
before the Committee was to examine whether the consequences of divorce
have a
disproportionately negative impact on either men or
women. Members of the Subcommittee on Gender and Economics examined
court practices regarding custody, child support, alimony, and property
division to isolate patterns of behavior that disadvantage women and to
examine the results of this behavior on the economic status of women.
We found that women face problems in the family law system that men do
not and that these problems are linked to gender bias. We believe that
the economic inferiority of women after divorce is inseparable from the
problems women experience in getting and enforcing support and alimony
orders and that those involved in the family law system must come up
with solutions to the problems caused by systemic gender bias.
Although each report in the family law section details specific ways in
which gender bias occurs in the areas of custody, child support, and
alimony, subcommittee members were struck by three overriding issues
that consistently, and negatively, affect women in all areas of the
family law system. These include: access to legal counsel; accuracy of
financial [*764] data; and mediation in the probate courts.
(When using the term "probate court," we are referring to the Probate
and Family Court Department of the Trial Court.) Because these issues
are pervasive throughout the system, we thought it crucial to highlight
them at the beginning of the family law report and to recommend ways to
deal with the problems raised.
ACCESS TO LEGAL COUNSEL
The family law system is virtually impossible to navigate without
legal assistance. Many women, however, cannot obtain the assistance
they need, particularly in the crucial first days and months after
separation. n2 Women suffer more from lack of counsel than do men.
There are three reasons for this problem: 1) court clerks are often
hostile to pro se litigants; 2) there are too few free legal
services available for the poorest litigants; and 3) there is too
little legal help available to moderate-income women, in part because
judges fail to award adequate counsel fees, especially during the
pendency of litigation.
All our sources of information indicate that women's
disproportionate lack of access to adequate legal representation in
family law matters constitutes the most serious barrier to their
ability to obtain justice. Family law experts believe that women are
unrepresented more often than men and that the outcomes they obtain
suffer as a result.
Pro se litigation
There is widespread agreement among attorneys and litigants that women who try to resolve problems in the probate court
pro se
encounter many more difficulties than do those who are represented by
counsel. Both family service officers n3 and attorneys in focus groups
reported a recent increase in
pro se female clients, an
increase that they believe the system is unprepared to deal with. Why
this increase? As one public hearing witness put it, "Why do I and
other mothers attempt to represent ourselves? The answer is simple. We
have no funds, and the legal professionals have no services to offer
low-income non-AFDC recipients." Reports from the litigant meetings
confirmed that women lack information about court processes, how to get
what they need from the courts, and how to get help with their legal
problems. n4 An overriding [*765] theme that became
apparent from the litigant meetings is women's lack of knowledge of how
the system functions, what their options are within the system, and how
and where to get counsel or other information pertaining to their
rights as litigants. As one Boston attorney noted in public hearing
testimony, a woman may be able to file papers in the probate court, but
she may not know that she must serve process. Even if she gets process
served, she may wait for weeks or months for a hearing because she does
not know that she has the burden of marking up the case for trial.
According to attorneys and family service officers, a particular problem
pro se
women experience is lack of assistance and hostile attitudes from court
personnel, especially assistant registers and assistant clerks. Several
Worcester attorneys said at a focus group meeting that some assistant
registers view it as their job to set up barriers between
pro se clients and judges. While such behavior occurs with
pro se clients in general, attorneys feel that the problem is particularly acute for
pro se
women. Not only are women clients treated disrespectfully, but,
according to family law attorneys, "they are often given the wrong
information." These difficulties contribute to the feelings of
powerlessness that many women experience as part of their family's
breakup.
At a litigant group meeting, one woman discussed her efforts taking her case
pro se
to the Supreme Judicial Court (SJC). While this litigant had a
successful outcome at the SJC, she encountered harassment at the lower
court levels, including being denied copies of her court papers,
getting summoned to court from her job without advance notice, and
receiving denigrating comments from court personnel. These problems
were compounded by the psychological cost of pursuing support from a
man who frequently changed jobs and earned below his capacity.
One witness pointed to the utility of
pro se clerks in the
federal court and of housing specialists in the housing court, and
wondered why the probate courts did not employ similar people to assist
pro se litigants. n5
Free legal services
The focus group of legal services advocates revealed that in many parts
of the state no legal services staff lawyers work on family law cases.
Most legal services programs rely on private attorneys to handle
[*766] the cases
pro bono. This practice has a
strong negative impact on access to legal counsel. In the four
westernmost counties, for example, no staff attorneys handle family law
cases; the waiting list for a
pro bono lawyer can be up to two
years. In addition, all legal services programs have stringent criteria
for the cases they will accept. In Boston, for example, only primary
caretakers in custody disputes are represented. n6 Private attorneys
often limit the types of cases they will handle
pro bono; in some areas, they will handle only uncontested divorces.
Women's poverty is linked to unavailability of quick legal assistance.
As one lawyer testified at a public hearing, "In our experience, it has
been those first few days or weeks following a separation where legal
assistance is most critical to the economic safeguard of a woman and
her children. With the assistance of counsel a recently separated woman
could file for separate support or a divorce with a request for support
pendente lite. A speedy request for a support or custody order
would enable women to maintain or at least stabilize their living
situations pending a full hearing." n7
Attorneys' fees for private counsel
In the family law survey, in focus group meetings, and in public
hearing testimony, attorneys consistently reported that adequate
counsel fees are not ordered in advance by judges, decreasing the
incentive to represent female clients, who almost always have fewer
resources than men. Eighty-five percent of the lawyers responding to
the family law survey said that courts rarely or never award adequate
counsel fees in advance to the spouse unable to afford fees, while 68%
reported that judges rarely or never award adequate expert witness
fees, either during or at the close of a case. One attorney from
western Massachusetts related at the Springfield public hearing that in
the 300 times she had applied for counsel or expert fees in advance,
she was awarded a fee only once. Adequate fees are almost never awarded
during the pendency of litigation, meaning that attorneys must bear all
of the costs of the case until after trial.
These sentiments were echoed in the attorney focus group in Boston,
where participants stated that attorneys' fee decisions can deny
effective representation to women, particularly in the area of
discovery. These lawyers said that judges do not understand the
economics of current law practice. As a legal services lawyer
testified, attorneys' fees "is a mechanism which could provide some
representation to women from middle-income families. However, it is
rare that an attorney in private practice will accept a domestic
relations case in anticipation of court [*767] awarded fees
and costs and rarer still that a court will order payment of costs in
the absence of the need for sanctions."
Attorneys' comments were corroborated by data from our court records
study. In the cases examined, fees generally were not awarded when
sought, and several cases revealed one party's difficulty affording
counsel fees. n8
RECOMMENDATIONS
1. Access to the courts by pro se litigants must be improved. Personnel should be designated to provide assistance to pro se litigants, akin to the pro se
clerk in federal court and the housing specialists in housing courts.
Court personnel should be educated about the economic needs of women in
an effort to reduce hostile attitudes toward pro se litigants, and courts should review their rules and procedures to eliminate those that discriminate against pro se litigants.
2. Judges must award adequate attorney fees during the pendency of
litigation. They must be educated about attorneys' needs for such fees
and the relationship between advance fee awards and a litigant's
ability to procure legal representation. The probate court should adopt
a rule providing that, on a reasonable showing of need, a party is entitled to obtain fees for counsel and experts pendente lite;
and that if the judge declines to order such fees, he or she must enter
written findings delineating the reasons behind the decision. An order
refusing to order fees, or ordering fees that are not reasonable,
should be considered subject to review by a single justice pursuant to
M.G.L. c. 231, § 118, first paragraph. Appellate courts must be
aware of the significant dearth of legal resources for the
representation of women in family law matters and make clear, as a
matter of case law, the need for trial judges to order such fees.
3. The private bar and legal services organizations must devote more
resources to representation of women in family law cases. Bar
associations and legal services organizations should explore new
sources of funding for this representation.
ACCURACY OF FINANCIAL DATA
There is a serious concern among family law attorneys regarding the
accuracy of financial data presented to the courts, particularly by
male litigants, and the failure of the courts to take seriously the
rules surrounding discovery in family law cases.
We received a good deal of evidence indicating that the financial
statements relied upon by the probate courts for determining financial
[*768] awards are not sufficiently reliable. Since the
financial awards affected by inaccurate financial statements often
include child support, this is a situation that has a significant
impact not only on women, but also on their dependent children.
Although family service officers participating in focus groups differed
in their assessment of how accurate financial statements are, all felt
that some percentage are inaccurate. Family service officers also noted
that filling out the statements can be very confusing, particularly for
pro se litigants, and they suggested that the instructions be revised and clarified.
Family law attorneys agreed with family service officers that financial
statements are difficult to fill out, but they were more consistent in
their view that financial statements have a low degree of accuracy. In
response to the family law survey, only 35% of the attorneys stated
that men's financial statements are always accurate, while 65% believe
the same of women's statements. Attorneys in focus groups also noted
that the current financial statements are incomplete and do not include
such important assets as pensions. In the cases studied in the court
record survey, a number of judges specifically highlighted the
inaccuracy of financial statements. In short, informants from all
categories generally feel that there are significant problems with the
financial statements that are currently used by the courts.
Financial statements do not represent the only financial data that are
considered by the probate court, particularly in the area of equitable
distribution. In the court record study, financial information
presented by the parties was often found to be inaccurate or
misrepresented. In one case, for instance, the husband stated that his
pension was worth $ 19,000; the trial judge determined that it was
worth much more. In another case, the trial judge labeled the tax
return inaccurate. In two instances, the husbands were found to have
withdrawn funds from joint accounts. And finally, in a case with a
relatively large marital estate, the trial court stated that "there has
been much controversy to the extent of the husband's income and assets
. . . although the husband claims lack of income, he has managed to
drive around in a Mercedes Benz automobile supplied by the company and
to use his own airplane. What the husband shows on the books of the
company as current income is not reflective of his ability to
manipulate advances and loans." n9
Questions about the accuracy of financial information submitted to the
probate courts make the issue of discovery a crucial one. Yet,
according to comments from attorneys speaking at focus groups and at
public hearings, the courts do not take discovery seriously. Discovery
requests are often ignored by opposing counsel, and the courts do not
enforce them as they do in other nonfamily litigation. When discovery
is not enforced, women are generally at the losing end of a fight to
[*769] discover income and assets in which they should
share. In the words of a Springfield attorney, "the women who have
consulted me who feel that they have been victimized by a male
conspiracy seem, in my experience, to be responding to their perception
that the court declines to enforce full disclosure of assets with the
stringency authorized by the rules. In the absence of complete and
good-faith discovery procedures, there will be little in the nature of
documentary evidence to substantiate (the wife's) belief that there is
more money there somewhere!" As attorneys noted, this is particularly
true in cases where the spouses are self-employed or in control of a
business.
RECOMMENDATIONS
1. The probate court financial statement form should be changed to
require the disclosure of accurate data concerning the valuation of
pension and other deferred compensation and retirement rights. In
particular, the parties should be required to obtain from the pension's
trustees a certified statement that reflects the pension's present and
future value. n10 In addition, the parties should be required to obtain
a certified wage and benefits statement from their employers.
2. The probate court rules should be amended to require that counsel
for the parties sign Rule 401 financial statements and certify to the
correctness of the statements. The signature of an attorney on a
financial statement constitutes a certificate by the attorney that he
or she has read the financial statement and, after reasonable inquiry
into all relevant facts disclosed therein, to the best of his or her
knowledge, information, and belief, the financial statement is accurate
and complete as filed. Such a rule should further provide that if the
financial statement turns out to be incomplete or inaccurate, and the
attorney knew or should have known of the omissions or inaccuracies,
sanctions against counsel may be imposed.
Rule 401 should be revised to recognize marriage as a
"partnership." It should impose fiduciary responsibilities of full
disclosure upon the divorcing parties, and it should authorize
sanctions for failing to do so. n11
MEDIATION IN THE PROBATE COURT
Mediation, as it is currently practiced in the probate court,
disadvantages women because of their generally unequal bargaining power.
Mediation has become an important part of the operation of the
[*770] probate court. Some probate court judges commented
to the Committee that, because of heavy caseloads, their courts simply
could not function without the family service officers who aid in the
settling of cases through mediation. Family law attorneys responding to
our survey reported that 41% of their divorce cases in the last two
years had involved mediation by family service officers or court
clinics.
In this report we comment only upon the system of "mediation" as it is
practiced in the probate court. Mediation is used voluntarily in
private settings and in various forms in several other courts. In the
district court, for example, judges refer litigants, on a voluntary
basis, to independent community-based mediators. We have not studied
mediation as it is practiced in these settings, and therefore our
comments apply only to the type of mediation practiced in the probate
courts.
"Mediation" as it is generally practiced in the probate court is very
different from "mediation" as it is described in the dispute resolution
literature. One lawyer and mediator, for example, defines divorce
mediation as "a voluntary, confidential process during which a neutral
mediator helps a disputing couple reach agreement" (Fiske, 1986).
Similar criteria are defined in the standards of the Massachusetts
Association of Mediation Programs. These standards call for an
impartial/neutral mediator, a confidential process, and participants
who are informed about the process, voluntary in their participation,
and able to determine a mutually agreeable outcome to the mediation. As
comments from family law experts, attorneys, family service officers,
and litigants reveal, what is called "mediation" in the probate court
does not fit these criteria.
There are several reasons for this discrepancy which can be explained
by examining mediation as it is practiced in the probate court. First,
although practices in different probate courts vary, mediation sessions
are frequently mandatory, not voluntary. According to information
gathered at family service officer and family law attorney focus
groups, mediation often occurs in one of two ways. Parties must either
meet with a mediator before they go before a judge or they are
immediately ordered to mediation upon appearing before the judge. In
neither instance is mediation voluntary on the part of the litigants.
Second, family service officers mediate all kinds of cases, some of
which may not be appropriate for mediation. For example, several family
service officers participating in focus groups reported that they are
asked by judges to mediate Abuse Prevention Act cases even though they
themselves feel that these cases are inappropriate for mediation.
Family service officers were also concerned that, although they do not
have the legal and financial background to resolve disputes concerning
the division of assets, they are increasingly being asked to handle
cases involving complex economic cases. Several judges raised the same
concern [*771] about family service officers handling these
matters because they feel division of assets requires the input of a
lawyer.
Third, mediation in the probate court is conducted under severe
constraints. Family service officers generally deal with a case only
once, on the day it is scheduled for
ex parte hearing, contempt
or trial. Thus, there is no opportunity for parties to fully think
about their needs nor to consider the long-term implications of what
they might agree to. n12 Fourth, family service officers often are
required to act as investigators and mediators in the same case or to
reveal to the judge what transpired in mediation. Family service
officers may explain this to litigants at the start of the mediation,
but the loss of confidentiality is still a serious distinction from the
usual mediation model. Fifth, family service officers are sometimes
required by the court to give their recommendation on how the case
should be decided; thus, they lose their neutral role. Sixth, and most
important, "mediation" in the probate court has a particular goal.
According to attorneys in the focus group sessions, the purpose of
mediation is to dispose of the issues quickly so that a full judicial
hearing is not necessary. A Worcester attorney described the effects
that this dynamic can have on some cases:
I see them (family service officers) as browbeating the
parties to the cases in order to process the cases more quickly. This
saves the court the time it would take to hear the cases before judges.
Family service officers are more interested in settling the cases than
in getting to the right result.
Not all family service officers behave as described above. Judges
comment that many family service officers work hard to maintain a
balance between the needs of the parties involved in mediation and the
goal of reaching a stipulation or partial agreement. Meeting with a
family service officer during the mediation process fulfills several
important functions for the courts. These include: assessing the extent
of agreement/disagreement in a case; allowing parties to vent emotions
and clarify issues; and encouraging use of additional
legal/social/psychological services. But these purposes can be lost if
the desire to reach a settlement dominates the mediation situation.
Comments from family service officers indicate that the pressure to
settle cases is a real one. Family service officers feel pressure from
judges to settle cases, and they tend to believe that their
effectiveness as a family service officer will be based on how many
cases they can settle. Judges, on the other hand, convey pressure to
settle because they are feeling the pressure of the backlog and the
press of new cases.
[*772] As critical as caseload pressure is, it does not
justify the maintenance of a system that systematically disadvantages
people because of their gender. Our research indicates that the current
practice of "mediation" in the probate court may indeed have that
effect. An attorney in a Boston focus group commented that, when the
goal of court-practiced mediation is to reach
any settlement,
"mediation allows the stronger, more powerful person to hold firm while
the weaker person concedes more and more." The contention that
mediators in the probate court sometimes coerce settlement, and that
this practice may not affect both sides equally, is supported by the
reasoning of a male litigant who defended mediation at the Boston
litigants' meeting: "Mandatory mediation can be useful. When
threatened, people find a way to work things out" [emphasis added]. n13
A process that empowers the already powerful is gender biased, for
under current social conditions, the more powerful person is likely to
be male. As Barbara Hauser, L.I.C.S.W., director of the Family Service
Clinic at Middlesex Probate Court, testified:
At times it appears that the court and its personnel have a
limited appreciation about the inequality in ability of parties to
bargain effectively at the time of marital separation. Women in these
times often feel less adequate than men in areas of articulating their
needs and wishes, forcefulness in negotiating, and economic stability.
Furthermore, women often have a wish to resolve conflict through
communication and mediation rather than taking a more adversarial
posture, and it is thus important that these differences be recognized
rather than overlooked in any form of divorce proceedings. n14
Attorneys pointed out other ways in which women are disadvantaged in
the mediation process. The responses to the family law attorney survey
clearly indicate that women are more likely than men to bargain away
property to get their preferred custody or visitation arrangements. An
attorney testifying on behalf of Greater Boston Legal Services
observed, "Women who are afraid cannot mediate, especially regarding
child support . . . . The woman, especially if unrepresented, is
probably not likely to know what a fair support order should be. And in
our experience few of the mediators give her any indication of what the
guideline amounts would be." The attorney further testified that when a
woman "is desperate to keep custody she is not generally in an equal
bargaining position, so will bargain away all of her other rights to
keep custody." Attorneys also noted that women frequently are at
greater economic risk, have less information about marital assets, and
less information about their legal rights.
[*773] The inequality between the participants is
particularly severe when one party has been physically abused by the
other. This inequality creates problems whenever the victim is told to
mediate issues with her batterer, not merely when she is told she must
negotiate with her batterer about her physical safety. n15 "In
[battering] cases I often have seen women sign agreements that are
simply unconscionable because they want to avoid confrontation with the
man," one Worcester attorney stated. Some family service officers
agreed. "It's scary because a woman will be willing to take less to get
out of the situation because of the danger. She's not looking out for
her long-term financial interest." While it is at the temporary orders
stage that mediation usually occurs, orders established at that time
often influence the outcome of the permanent orders and thus assume a
larger importance.
The unequal position of women in mediation can lead to unequal
outcomes. Attorneys responding to the family law survey reported that
men are more likely to be favored in custody and financial arrangements
made through mediation than they are in custody and financial
arrangements arrived at without mediation. n16 Recent research provides
additional indications that women may be disadvantaged in divorce
mediation. One study compared divorce settlements in three New York
counties reached through three different dispute resolution mechanisms:
judicially assisted, attorney negotiated, and privately mediated (Ray,
1988). It found that the sampled mediated cases reported the lowest
percentage of agreements containing child support obligations for all
types of custodial arrangements and significantly fewer with child
support in joint custody cases. n17 The author concluded:
If the support of all children by absent parents is to
continue as public policy, then the findings from this study suggest
that legislation mandating mediation in all disputed family matters
involving child custody, child support, and visitation would be
inconsistent with policy. Furthermore, the findings from the study
would not support legislation to mandate mediation only in child
custody and visitation disputes, since child support is so intimately
entwined with the custodial arrangement.
Other researchers whose prior writings have been very supportive of
mediation report the following results of an assessment of a
[*774] mandatory, court-based mediation program in the
Delaware Family Court (Pearson and Thoennes, 1985; Dingwall and
Eekelaar, 1987). "Unlike cases processed in judicial forums, mediated
child support levels are substantially lower than what would be
expected based upon a rigorous application of the state's child support
formula." Judicial awards were within +/- $ 10 (per month) of the
guideline amount in 96% of the cases, and above the guideline amount in
the few remaining cases. In contrast, fewer than half of the mediated
support orders were within +/- $ 10 of the guideline. Almost one-fifth
(18%) of the mediated awards were between $ 11-$ 49 below the
guidelines, and nearly one-third (32%) were more than $ 50 below the
guidelines. Moreover, the research did not find any particular benefits
associated with this form of mediation. "Voluntary compliance with
mediated agreements appears to be neither better nor worse than
compliance with outcomes generated in judicial forums. Finally,
interviews with divorcing parties exposed to mediation reveal little
evidence of user satisfaction" (Pearson and Thoennes, 1988).
CONCLUSION
Apart from the troubling practical consequences of mediation as it is
practiced in the probate court, there are troubling issues of
principle. Mediation is essentially private. Public legal norms do not
govern, and, because there is no record, judicial review is not
possible. While these objections can be, and have been, voiced about
mediation in general, the mediation of disputes in the probate court
raises special concerns.
First, it is troubling that although society is now recognizing that
many of the problems affecting women -- domestic violence, lack of
child support, inequitable distribution of assets after divorce -- are
not purely private matters, women are still being told by the court
that these are, indeed, family problems for them to work out with their
husbands or ex-husbands: they do not belong before a judge. Few other
classes of disputes are so routinely diverted from the court. Second,
inequality of bargaining power is commonplace, and may be related to
gender.
Our recommendations are designed to ensure that parties are not forced
to mediate inappropriate cases and are not coerced into settlement.
This does not mean, however, that mandatory referral of cases to family
service officers for prescreening n18 must stop or that family service
officers should not serve as mediators. Family service officers provide
a crucial service to both the courts and the litigants using the
courts. Without their services the courts would be unable to handle
[*775] many of the emergencies with which they are faced.
None of our recommendations are meant to limit the ability of family
service officers to collect information that judges often need to
handle cases in an efficient and thorough manner. We do, however,
believe that the process of "mediation" as it is currently practiced,
that is, attempting to reach a settlement in a case, must be reformed.
RECOMMENDATIONS
1. Settlements must not be coerced. Mediation and other
services performed by family service officers are crucial in coping
with the overwhelming number of cases that the probate court handles.
But the pressure to dispose of cases must never translate into an
effort to coerce parties to settle in mediation. To ensure this, it
must be clear to family service officers that their effectiveness will
not be evaluated on the basis of the number of cases in which
agreements are reached.
2. At the outset, parties referred to family service officers should be routinely informed that:
a. they do not have to settle if they do not want to, and that the case can go to court on the election of either party.
b. the information gathered by family service officers is not confidential and when appropriate may be shared with the judge.
c. there are several purposes for meeting with family service
officers, including fact gathering for the judge; assessment of issues
in conflict; opportunity to clarify issues and defuse conflict;
facilitate use of legal and social services; mediate temporary
agreement if both parties freely accept the terms of the agreement.
3. Family service officers and judges need to be sensitized to:
a. signs of unequal power in the dynamics between the parties.
b. signs of unfair concessions by either party in the mediation
c. effects of abuse on the dynamics between the parties and adverse effect on children whose custodial parent is being abused.
4. Before mediating a case, the family service officer should use
the following guidelines to determine whether the case is appropriate
for mediation:
a. There should be no mediation unless both parties
voluntarily agree to it, and the parties appear to have roughly equal
power, based upon a preliminary assessment of the family dynamics.
b. There should be no mediation of the division of assets until
there is full disclosure and valuation, or acceptance of valuation, of
assets. Courts can, however, go forward on temporary support issues.
5. When cases involving abuse are referred to family service officers, the following guidelines should be used:
a. All cases should go before the judge. At that time,
the judge may offer to the parties, in appropriate cases, the option of
giving information to a family service officer. Although this procedure
may require [*776] several appearances, we believe that
this quantity of time before the judge is justified, despite caseload
pressures.
b. Family service officers will carefully explain to the parties
that they are meeting only to gather information. The goal is not to
balance the needs of one individual with the needs of the other, it is
only to determine the needs of each. Meetings with each individual,
instead of the two together, are encouraged whenever possible.
c. The Committee recognizes that in these meetings, it is possible
that the needs of the couple may coincide in such a way that it may not
be necessary to go before the judge. We recommend, nonetheless, that
all cases where the family service officer has identified domestic
violence should go before the judge who will publicly emphasize that
such behavior is unacceptable.
6. A family service officer should not be allowed to make a
recommendation to the judge in a case that she or he mediated, but in
which no agreement was reached. If the family service officer is
allowed to do so, it should only be after a full hearing has been held.
7. A committee including judges, family service officers, lawyers,
court clinicians, and clients should be created to recommend guidelines
for the different functions of family service officers and to recommend
training programs for family service officers to assist them in the
performance of their different responsibilities.
ALIMONY AND DIVISION OF PROPERTY
SUMMARY OF FINDINGS
Alimony awards and division of property are of obvious critical concern
to those seeking a divorce; not only will they shape the futures of
both the divorcing parties, but they will also have a direct impact on
any minor children of the marriage. A number of research studies
indicate that, although the goal of statutes governing alimony and
property division is to effect equitable distribution of property and
give adequate support to the spouse who needs it, this goal often is
not met. Statistics show that after a divorce, the wife's standard of
living usually drops, sometimes substantially, while the husband's
standard of living rises (Weiss, 1984; Duncan and Hoffman, 1985;
Weitzman, 1985).
Aware of these national trends, the Committee used a number of methods
to evaluate current judicial practice in Massachusetts in the areas of
alimony awards and property division. The Committee specifically
concentrated on such topics as the relationship between the new child
support guidelines and alimony awards, the disposition of the marital
home, pensions, and businesses, and the economic circumstances of women
and men following divorce. We found that:
1. In accordance with trends seen in other states, our data indicate
that women generally experience a greater drop in standard of living
after a divorce than do men. Although individual male litigants
[*777] testified that they have been financially hurt by
property dispositions in their divorces, the financial data gathered by
the Committee show that, in fact, men's standard of living often
improves after a divorce.
2. The new child support guidelines have had a negative impact on
alimony awards. Family law attorneys believe that in cases involving
minor children, alimony is awarded less frequently than it was before
the guidelines came into effect. In many instances, alimony is not
awarded at all.
3. According to U.S. Census Bureau data, the rate of compliance with
alimony orders is very low. Our research indicates that the courts are
not using adequate tools for enforcing alimony orders.
4. When alimony is awarded, some awards do not appear to be based on a
realistic understanding of the impact of lost career opportunities on
future earnings or to properly take into account the sacrifice of
earning potential many women have made in order to be the primary
caretaker of the family.
5. In divorces in which there are minor children, there is a
relationship between the disposition of the home and the availability
of other material assets. If other assets exist, the courts do not
customarily order the marital home to be sold immediately. In cases in
which there are few assets, however, the parties are often ordered to
sell the home, leaving the primary caretaker -- usually the mother --
with the need to find new housing for herself and the children. In
general, disposition of the marital home can raise difficult financial
issues for both husband and wife.
6. The treatment of pension and retirement rights and other
business-related property interests in divorce cases may seriously
disadvantage women because these assets are often ignored or
undervalued.
7. The failure or refusal of judges to award counsel fees or fees for
expert witnesses in advance of or pending trial of a divorce proceeding
disadvantages women since they generally are the parties with
insufficient funds to retain an expert or even a private attorney.
8. There are noteworthy discrepancies between attorneys' views of
judicial practices in divorce cases and the judges' views of their own
practices.
METHODOLOGY
The Committee gathered data on alimony and property division through
testimony at the public hearings; by using the family law section of
the attorneys' survey, the family law attorney survey, and the probate
section of the judges' survey; and through regional meetings and focus
groups consisting of male and female attorneys, separate
[*778] male and female litigant focus groups, and family
service officers' groups.
In addition, the Committee conducted a court records study designed to
evaluate the application of the Massachusetts equitable distribution
statute, M.G.L. c. 208, § 34. We analyzed 20 appellate level
decisions from 1987; 11 were summary dispositions (these cases, from
the Appeals Court, were analyzed in depth including extensive financial
information), and 9 were reported cases decided by the Appeals Court or
by the Supreme Judicial Court. n19
The Committee recognizes that this sample represents a limited subset
of divorces in Massachusetts. We believe, however, that one year of
cases, carefully coded, provides sufficient data upon which to base an
analysis of trial judges' application of c. 208, § 34, and to make
some tentative assessments of the financial consequences of those
decisions. We realize that any findings or conclusions which have been,
or can be, drawn from this data are not necessarily representative of
cases settled by agreement of the parties.
ALIMONY AND PROPERTY DIVISION: LAW AND PROCEDURE
In Massachusetts, alimony and the division of a couple's property upon
divorce are governed by statute M.G.L. c. 208, § 34, (1986 ed.),
which lists a series of mandatory and discretionary factors to be
considered by judges in determining alimony and property awards. The
mandatory factors include: length of marriage, conduct of the parties
during the marriage, age, health, station, occupation, amount and
sources of income, vocational skills, employability, estate,
liabilities and needs of each of the parties, and opportunity for
future acquisition of capital assets and income on the part of each
party. The appellate courts have made clear that trial judges must
consider all of the mandatory factors in arriving at a determination of
alimony and property division in a divorce action. In addition, trial
judges may consider the following discretionary factors: each party's
contribution to the "acquisition, preservation or appreciation in value
of their respective estates" and "the contribution of each of the
parties as a homemaker to the family unit."
Theoretically, c. 208, § 34, is designed to provide for equitable
distribution of the marital estate. As the terms of the statute reveal,
however, "equitable distribution" is very much a matter of individual
judgment on the part of the trial judge. C. 208, § 34, provides
that "Upon divorce or upon motion in an action brought at any time
after a divorce, the court may make a judgment for either of the
parties to pay [*779] alimony to the other. In addition to
or in lieu of a judgment to pay alimony, the court may assign to either
husband or wife all or any part of the estate of the other." Thus,
judges have broad discretion in considering how much alimony, if any,
should be awarded to either spouse and in defining an equitable
property division. n20
C. 208, § 34, is also silent on the specific purpose to be
achieved by either an alimony award or the division of property. Case
law has, however, set standards in these areas. According to case law,
the goals of alimony and property division differ. The purpose of
alimony is to provide economic support to a dependent spouse. In
considering the issue of alimony, trial judges must focus on the
dependent spouse's need of support and the ability of the supporting
spouse to pay such support; they cannot focus on circumstances or
factors unrelated to the economic condition of the parties. n21 The
purpose of property division, on the other hand, is to recognize and
compensate equitably the respective contributions of the parties to the
marital partnership. n22 Unlike alimony awards, property settlements
are not subject to modification (
Drapek v. Drapek). n23
DISCUSSION OF FINDINGS
1. In accordance with trends seen in other states, our data indicate
that women consistently experience a greater drop in standard of living
after a divorce than do men. Although individual male litigants
testified that they have been financially hurt by property dispositions
in their divorces, the financial data gathered by the Committee show
that, in fact, men's standard of living often improves after a divorce.
Research studies from throughout the country indicate that the economic
[*780] impact of divorce is very different for men than it
is for women (see "Family Law Overview"). Our analysis of court records
suggests that national trends regarding the impact of divorce on the
party's postdivorce standard of living hold true for Massachusetts as
well. To study the pre- and postdivorce standards of living of women
and men, our consultant, Dr. Nancy L. Marshall, developed a method for
comparison of standard of living relative to Census Bureau data. The
family income prior to divorce was calculated for each of the eleven
appellate cases for which financial data was analyzed in depth, and
then the incomes of the woman and man after divorce were determined.
"Income" included all disposable income described in the court records.
In practice, this generally meant income from salary or social security
and interest on savings accounts at 6% per year (see Table 1). Child
support and alimony payments were added to the income of the party
receiving the payments after the divorce and subtracted from the income
of the party making those payments. For purposes of analysis it was
assumed that support payments were received. This, of course, is not
always the case. Tax consequences to each party were not considered in
this calculation, and no adjustment was made for situations in which
one party maintained mortgage payments on a house in which the other
lived. The income figures provide a fairly good estimate of the
standard of living for each family, even where they are not exact.
Incomes for the families were compared to the Census Bureau's report of
the U.S. median family income for families of the same size and in the
same year as the income data were recorded. In 1985, for example, one
family's income before divorce was $ 33,371 (see Table 1); there were
five people in the family. The U.S. median income for a family of five
in 1985 was $ 31,974. Therefore, this family's income was slightly
above the median family predivorce income. The same procedures were
followed for postdivorce income, using postdivorce family size. n24
Table 2 reports each family's pre- and postdivorce income as a percent
of median income and presents the change in standard of living. The
change in standard of living is calculated as the percent of median
income predivorce minus the percent of median income postdivorce.
Table 3 graphically represents the standards of living of women and men
after divorce. The families are arranged from high predivorce standard
of living to low predivorce standard of living, relative to median
income. The
patterns across all divorces suggest findings
similar to Weitzman's: women consistently experience a greater drop in
standard of living than do men. Child support, alimony, and property
awards do [*781] not maintain the standard of living for
women after divorce, while men's standard of living may be reduced
somewhat less or may actually increase postdivorce.
2. The new child support guidelines have had a negative impact on
alimony awards. Family law attorneys believe that in cases involving
minor children, alimony is awarded less frequently than it was before
the guidelines came into effect. In many instances, alimony is not
awarded at all.
Alimony is intended to provide support for a spouse whose ability to
support herself or himself is insufficient. Because it is generally
women who postpone their careers to be the family's primary caretaker
-- and thus suffer a loss of earnings, both present and potential --
alimony awards are most frequently made to women. n25 Despite the
differential earning capabilities of men and women following a divorce,
however, the actual number of divorce cases in which alimony is awarded
at all is quite small. This is true for the nation as a whole and also
for the state. Nationwide, only 12.4% of the people divorced between
1980 and 1985 were awarded alimony, (U.S. Bureau of Census, 1989),
while in Massachusetts, in divorcing families with minor children,
alimony is awarded in only ten to twenty percent of the cases
(Massachusetts Department of Revenue statistics). Indeed, attorneys
responding to our family law survey indicate that they actually seek
alimony in only a minority (29%) of their cases.
These statistics are borne out by the findings of the Middlesex Divorce
Research Group relitigation study. Analyzing 700 divorce cases in
Middlesex County between 1978 and 1984, researchers found that in the
584 cases in which the mother had primary physical custody of the
children, alimony (in conjunction with child support) was awarded in
only 10% of the cases. Far more common was an award of child support
only (48% of the cases).
Evidence gathered by the Committee indicates that there is a
relationship between the small percentage of alimony awards and the new
child support guidelines. According to testimony from family law
attorneys, one major effect of the guidelines has been a reduction in
the number of cases in which alimony is given. Comments from judges and
attorneys at the Massachusetts Bar Association's program on child
support and alimony held in January 1989 suggest that a number of
probate judges and lawyers believe that the child support provided
under the guidelines actually constitutes family support and eliminates
the need for alimony, at least during the years that there are minor
children in the family. Comments from attorneys who participated in
focus [*782] groups corroborate this perception. These
attorneys are disturbed by the fact that some judges assume, without
findings of fact, that the husband's contribution toward child support
is the most that can be taken from him. Although it is legal services
attorneys who feel that their clients are most affected by the negative
impact of the child support guidelines on alimony, attorneys for
higher-income clients also voiced their concern that "judges don't want
to do the findings." These attorneys believe that without proper
discovery and findings of fact the courts have no way of assessing how
much a husband can truly afford to pay in child support and alimony.
The assumption that child support satisfies the need for alimony
appears to reflect a bias against women who postpone their careers and
sacrifice their earning potential to care for their families. An award
of child support with no alimony can have a highly negative impact on a
primary caretaker at the point that her children reach eighteen.
A case discussed by Worcester attorney (and now judge) Arline Rotman at
a public hearing illustrates the problems of caretakers who receive
child support and no alimony. The case involves a woman, married for
twenty years, with three children. The woman had been at home raising
the children for the majority of the marriage. Two years before the
divorce, she had returned to work. At the time of the divorce, the wife
was earning about $ 16,000, while the husband made approximately twice
that amount, $ 30,000. The woman was awarded child support and no
alimony. Since the last remaining child was close to eighteen, the
child support was ordered for three years. As Judge Rotman notes, at
the end of that time, the wife's income will still be about half of the
husband's. "So, at the conclusion of a twenty-year marriage, when a
woman has chosen to be a homemaker, she gets child support for a while,
doesn't get alimony, and (after a few years) the man walks away with a
termination of child support. He has $ 35,000 a year, and the woman has
$ 18,000 a year. This is not taken into account, by the way, in
property division, because that is seen as a separate matter. So the
wife is double disadvantaged; she is not going to be able to accumulate
as much (as the husband)."
While it may be possible for women to seek alimony when child support
ends, the result of such action is impossible to predict. Public
hearing testimony and comments from family law attorneys indicate that
many judges are reluctant to modify alimony awards. Indeed, attorneys
noted in public hearing testimony that it is much more common for
judges to modify alimony awards downward than to modify alimony awards
upward, and 71% of the attorneys responding to the family law survey
stated that judges frequently modify alimony awards downward in
response to alimony enforcement actions. In addition, as one judge
noted in written testimony to the Committee, the courts are seeing an
alarming number of cases in which lawyers are signing off women's
alimony [*783] rights forever in nonmerged agreements,
without any consideration of the problems facing women who are primary
caretakers of children. This is of crucial concern because nonmerged
agreements are generally not modifiable.
Aside from the issues that confront women once child support ends,
there are also problems facing women during the children's minority.
These problems are especially critical for mothers of young children
who devote most of their physical and psychological energy to caring
for their families. Child support does not, in fact, meet a woman's
needs separate from her children's. These needs include not only such
items as clothing and food, but also educational and training expenses
often necessary for a mother to procure future employment.
3. According to U.S. Census Bureau data, the rate of compliance with
alimony orders is very low. Our research indicates that the courts are
not using adequate tools for enforcing alimony orders.
Alimony awards are not only infrequent, they are also difficult to
collect. According to 1981 nationwide statistics, only 43% of the women
who were awarded alimony received the full payment due them, while 33%
received no payment at all. This percentage improved slightly in 1985,
but still remained high, with 27% of those awarded alimony receiving no
money (U.S. Census Bureau). Although these numbers are similar to the
compliance rates for child support (see "Child Support"), the national
and state responses to alimony enforcement and child support
enforcement are quite different. While federal and state legislatures
have responded to the low child support compliance rates with
legislation strengthening child support enforcement procedures, no such
efforts have been made for alimony. In Massachusetts, for example, the
legislature has designated the Department of Revenue as the statewide
coordinating agency for child support enforcement, but has established
no similar coordinating mechanism for alimony enforcement. While the
literature and the media contain detailed descriptions of child support
noncompliance and the means used to collect money from nonpaying
fathers, it is difficult to find any data on alimony enforcement.
Women who are not receiving alimony payments must bring a court action
for contempt for nonpayment, and they must rely on the courts for
enforcement. According to attorneys responding to the family law
survey, however, the courts are not using adequate tools to enforce
alimony orders. Although judges will generally enter income withholding
orders in response to alimony enforcement actions, family law survey
responses indicate that they will do so less often than they will in
child support enforcement actions: 64% of the respondents noted that
income withholding orders are often or sometimes entered in alimony
enforcement actions, while 71% noted the same for child support
actions. [*784] Judges in alimony contempts seldom jail
respondents (86% of family law attorneys stated this rarely or never
occurs), nor do they require posting of bonds (95% of family law
attorney respondents noted this rarely or never occurs). Indeed,
parties who go to court to enforce nonpayment of alimony sometimes end
up with lower alimony orders: 71% of the attorneys responding to the
family law survey stated that judges often or sometimes modify alimony
awards downward, while 73% said that judges often or sometimes reduce
arrears in response to alimony enforcement actions.
4. When alimony is awarded, some awards do not appear to be based on
a realistic understanding of the impact of lost career opportunities on
future earnings or to properly take into account the sacrifice of
earning potential many women have made in order to be the primary
caretaker of the family.
Under Massachusetts case law, a major goal of alimony awards is to
permit the spouse receiving it to maintain, insofar as possible, the
standard of living comparable to that enjoyed during the marriage. n26
As our research indicates, however, that goal is generally not being
met. Testimony from both family law experts and divorce litigants
suggests that women are negatively affected by unrealistic expectations
concerning their ability to procure employment and by an undervaluation
of a caretaker's contributions to the family. As Gene Dahmen, President
of the Boston Bar Association, noted in her public hearing testimony:
"In the wake of the women's movement, I believe philosophical issues
occurred and certain assumptions took hold in our courts about the
capabilities and expectations of women, particularly as wage earners,
that were unrealistic and detrimental. The negative consequences were
seen largely in the areas of alimony, child support, and, to some
extent, in the division of property." These unrealistic expectations
concerning women's ability to earn, Ms. Dahmen asserts, have led to
problems with setting alimony.
The family law survey and the probate judges' survey asked certain
questions about the frequency of alimony awards to differently situated
women and homemakers. Responding attorneys and judges indicated that
women married fewer than ten years and having no minor children are
often not granted alimony at all, even in cases in which their earning
capacity is less than or equal to 65% of their husband's. According to
family law attorneys, however, this pattern of nonawards holds even in
cases involving minor children. Sixty-eight percent of the respondents
to the family law survey noted that employed women with school-age
children at home often or sometimes receive no alimony, while
[*785] 54% responded that nonemployed women with
preschool-age children at home also frequently receive no alimony.
Attorneys and probate judges responding to the surveys noted that it is
older homemakers who are more likely than others to receive alimony,
particularly if they have no recent work history; 55% of responding
family law attorneys stated that women in this category often receive
indefinite alimony. However, this percentage changes significantly if
the older homemaker is earning annual wages under $ 20,000. In these
instances, almost half (49%) of the responding family law attorneys
noted that women often or sometimes receive no alimony at all.
The opinion was expressed by family law attorneys in focus groups that
length of marriage is one of the most important factors in determining
whether or not alimony will be awarded. Our court record survey
supports this view. Of the eleven cases analyzed in depth, alimony
awards were made in seven. In six of these seven cases, the length of
marriage was fifteen years or more; in the seventh, mental illness of
the former wife may explain the award. By contrast, in three of the
four cases in which no alimony was awarded, the length of marriage was
less than ten years, and in the fourth, the husband's circumstances may
have been thought to render an alimony award impractical.
Public hearing testimony and comments by attorneys participating in
focus groups indicate that there is a problem of gender bias affecting
awards of alimony to middle-aged women (aged 40-50) who have spent a
long time as homemakers, as well as to younger women with small
children. In the words of a family law attorney, it is the middle-aged
woman who "is caught in the middle." Such women are "too young for
long-term alimony," but too old and too long out of the labor market to
be able to procure good jobs. According to testimony, it is these women
who are most affected by the unrealistic expectations some judges have
concerning the earning capabilities of women. Attorney Colleen Curry of
the Hampshire County Bar Association testified at a public hearing that
these middle-aged women are often "given awards that are inadequate to
provide the support that they were used to during their marriage. They
have been forced to take jobs that are very menial and that result in
their living lifestyles that are very different from the lifestyles of
their (former) husbands."
Female litigants echoed the points made by family law attorneys. At
regional meetings, these litigants spoke of their obsolete job skills
and the failure of the court to take their lost career opportunities
into account when determining alimony. Their feelings are corroborated
by over one-third (35%) of the attorneys responding to the family law
survey. These attorneys noted that alimony awards rarely or never
"reflect a realistic understanding of the earning capacity of
homemakers with no recent work history."
Younger women with custody of young children also face hardships
[*786] with respect to alimony. Individual women spoke of
the problems they faced as a result of "rehabilitative" alimony awards
that required them to go back to work in a short time following
divorce, despite the fact that they had small children at home and
day-care costs bordering on the prohibitive. Both attorneys and
litigants complained that young mothers are being held to unreasonable
standards that are based on a lack of understanding and undervaluation
of a caretaker's role and responsibilities. One attorney at a focus
group provided a particularly strong example of judicial bias in this
area. The attorney represented a woman who had two children under six
years of age, one of whom was chronically ill. The wife worked part
time, earning less than one hundred dollars a week; the husband made $
55,000 a year. According to the attorney, the judge at the divorce
proceedings told the wife that "it was unconscionable for her to be
taking a job like this. It was about time women learned that they had
to work. His daughters were going to work." The judge awarded the wife
$ 200 a week to be reduced to $ 100 a week in six months, so that "she
could learn a lesson."
One of the most common complaints voiced to the Committee was the
concern expressed by many people, including public hearing witnesses,
attorneys, and litigants, that alimony awards to women of all ages are
unpredictable and very much a function of the individual judge's own
beliefs and attitudes toward women and their roles. There is apparently
no sense in the legal community that similarly situated people will
receive similar treatment with respect to alimony. One family law
attorney expressed the general sentiment well when he stated: "The
problem is predictability. Some judges will award alimony on the basis
of how much work a woman can do, others will compel a woman to work
because of the bias that a woman should work when the kids reach a
certain age. Other judges feel that a woman doesn't have to work if
she's not trained and the marriage has lasted a certain period of time.
We should be able to predict what a judge is going to do." This
sentiment was echoed by a colleague who noted, "The problem with c.
208.34, is that there's too much discretion and too many opportunities
for personal bias on the part of the judge." n27
5. In divorces in which there are minor children, there is a
relationship between the disposition of the home and the availability
of other material assets. If other assets exist, the courts do not
customarily order the marital home to be sold immediately. In cases in
which there are few assets, however, the parties are often ordered to
sell the home, leaving the primary caretaker -- usually the mother --
with the need to find new housing for herself [*787] and
the children. In general, disposition of the marital home can raise
difficult financial issues for both husband and wife.
Public hearing speakers, attorneys in the family law focus groups, and
individual litigants addressed the disposition of marital homes; in
addition, information about the marital home was gathered from the
court record study. These sources of information, while limited,
indicate that generally, if minor children are involved and if other
assets exist, the primary custodial parent will maintain the marital
home and it will not be ordered sold during the children's minority.
n28 For many families, however, the marital home often represents a
significant portion of the marital estate, and there are few additional
assets. In ten of the eleven cases studied in depth in the court record
study, for instance, the marital home represented from 52% to 100% of
the total marital estate. In such cases, the disposition of the marital
home raises difficult financial and emotional issues, especially for
the custodial parent and minor children.
Attorneys for lower-income people are particularly concerned about the
effects of the sale of the marital home on custodial mothers and their
children. These attorneys pointed out that they must work hard to
preserve the home, for "when the home is sold, their clients often end
up homeless." The same attorneys noted, however, that the rise in
property values has led to an increase in court orders to sell the
marital home, even when there are minor children still living there.
This is particularly common if the children are very young at the time
of divorce.
This trend was also noted by an attorney at the Northampton focus
group. He reported hearing a probate judge speak publicly on the issue
of the inequity to the noncustodial parent [husband] of delaying the
sale of the marital home during the young children's minority.
According to the attorney, the judge stated that he was "not going to
allow someone with a four-year old child to keep the house for fourteen
years. She could perhaps have it for three to four years."
A female divorce litigant at the Worcester focus group provided a
graphic example of the effects of the immediate sale of the marital
home on custodial parents and their children. When this woman and her
husband were unable to negotiate a settlement at their pretrial
conference, they were ordered to go to trial immediately. When the
woman's attorney refused to participate, the judge dismissed her
complaint and proceeded with the husband's. The judge awarded the woman
$ 30,000, but ordered her and her two and a half-year old twins to move
out of the house in three months. Prior to receiving the
[*788] money, the woman had no funds to find alternative
housing for herself and the children. When she failed to vacate the
premises, a sheriff arrived at the home and informed her that a truck
would come and remove the contents of the house if she were not out by
the next day.
While the immediate sale of a home has obvious negative effects on the
custodial parent and minor children, the delayed sale of the marital
home also poses difficulties for the parties involved. As one attorney
noted in public hearing testimony, if the custodial parent (usually the
mother) retains the home during the children's minority or for some
other period of time before an ordered sale date, it is she who is
often responsible for all costs of maintenance, taxes, and repairs. At
the time of sale, the husband generally receives a predetermined
percentage share of the sale proceeds, and the wife receives no
recognition or offset for her financial or physical contribution to the
preservation of the home. The end result is that the wife has had to
manage real estate, children, and often a full-time job with no
compensation for doing so, while the husband receives a percentage of
whatever equity has accrued in the home.
Attorneys in the Northampton focus group noted that the disposition of
a marital home raises difficult financial issues for both divorcing
parties and that husbands can also be hurt by the manner in which the
marital home is sold. According to these attorneys, husbands are at a
disadvantage in those cases in which the wife is given occupancy of the
home for a certain period of time, but the value of the house is fixed
at the time of the divorce. When the sale ultimately occurs, the wife
will receive the sole benefit of any appreciation in the value of the
home. Moreover, the husband will generally not receive any interest on
his equity in the home pending sale.
The maintenance of the marital home can pose an overwhelming financial
burden to older homemakers. In one of the cases examined in the court
record study, a sixty-seven-year old woman was awarded a home that
carried an outstanding $ 14,000 mortgage for which she was responsible.
The wife had a limited employment history and medical problems. She was
also awarded a single cash payment of $ 14,000. How she was going to
maintain the mortgage payments and pay her expenses at the same time
was unclear.
6. The treatment of pension and retirement rights and other
business-related property interests in divorce cases may seriously
disadvantage women because these assets are