The economic, social, and cultural factors that have changed our views of marriage have shattered our once cohesive understanding of alimony. The law of alimony is in the midst of an identity crisis. It was well understood a generation ago; today, however, it often is seen as a relic of earlier times. Our reluctance to abolish alimony entirely shows that at some level, in some cases, it must serve a very important purpose.
The Uniform Marriage and Divorce Act. The change can be explained as a result of a number of distinct phenomena. First was the rise of no-fault divorce. The Uniform Marriage and Divorce Act (UMDA, 1970) embraced no-fault divorce, allowing courts to grant a divorce even in the absence of fault where a court found that the marriage was irretrievably broken. Moreover, the drafters of the UMDA were determined to recognize the growing employability of women. But by rejecting traditional notions of fault and economic dependency, the UMDA knocked the foundation from under the traditional law of alimony.
The alimony provision of the UMDA provided that alimony could be awarded only if the party seeking support “lacks sufficient property to provide for his reasonable needs” and “is unable to support himself through appropriate employment.” By stressing that property division is the primary method of support, this language suggests that support is not necessary where a reasonable amount of property is awarded to each spouse.
Moreover, the second prong of this test is vague on the most important point: the definition of “reasonable needs.” One can reach very different figures for a spouse’s “needs,” depending on whether these needs are measured at a subsistence level, a level the court believes to be objectively reasonable, or the actual subjective standard of living from the marriage.
The official comment restated the second requirement as whether the spouse seeking support “is unable to secure employment appropriate to his skills and interests,” very strongly suggesting that when a spouse can secure such employment, that spouse’s “reasonable needs” will necessarily be met. The overall effect of the UMDA’s support provision was to suggest that self-support is the norm; that working women should not need support; and that as greater numbers of women work, support awards should become small in number, amount, and duration.
To reinforce the distinctions between traditional alimony and this new type of support, the drafters of the UMDA gave it an entirely different name: maintenance. By emphasizing employability and failing to refer to the actual marital standard of living as a factor in determining eligibility for support, the drafters of the UMDA appeared to reject the common law rule that the measure of support is the marital standard of living. Although only a few states enacted the entire act, a greater number adopted versions of the UMDA’s maintenance provision.
Rehabilitative alimony and the second wave. Alimony legislation since the early 1990s has been mainly a response to widespread criticism of support awards during the previous two decades, especially after longer marriages. This legislation constitutes the “second wave” of spousal support reform. By expanding the list of factors a court must consider in awarding support, and by requiring the court to make findings explaining the reasoning behind its award, the new legislation encourages courts to base their support awards more on the facts of the case and less on broad assumptions.
Nowhere is this change more evident than in the increasing use of vocational experts to measure earning capacity. This change, more than any other, lies at the heart of second-wave reform. Traditional alimony law was wrong to assume that women were close to unemployable; but first-wave reform law was equally wrong to assume that the theoretically unlimited employability of women translated into timely and sufficient employment of any specific former wife.
By basing assessments of employability on evidentiary facts and expert testimony, the courts can avoid the broad assumptions in both directions that were present in former case law. The vocational expert plays the same role in the law of spousal support as the valuation expert plays in the law of property division.
Common law notions persist. At common law, alimony was paid only by guilty husbands to innocent wives. It was thus almost a form of damages: the financial penalty the law imposed upon husbands as a result of their wrongful conduct in breaching the permanency clause of the marriage contract. The amount of the remedy—the amount needed to attain the marital standard of living—was roughly equivalent to the financial harm inflicted on the wife by the husband’s wrongful conduct, another rule strongly reminiscent of contract or even tort law. This view remains in most states: A spouse guilty of marital misconduct cannot obtain alimony. Only extreme hardship, which would result in the recipient spouse becoming a public charge, can overcome this notion that the recipient spouse must be “innocent,” in effect, free of comparative fault as in tort law.
The ALI Principles. In response to the problems highlighted above, the American Law Institute (ALI) in its Principles recommends the setting of presumptions or guidelines. The ALI focuses on spousal payments as compensation for economic losses that one spouse incurred as a result of the marriage. The ALI guidelines are premised on the assumption that when a marriage is dissolved there are usually losses associated with it, such as lost employment opportunities or opportunities to acquire education or training, which lead to disparities in postdivorce earning capacities.
The ALI takes the position that these losses, to the extent they are reflected in a difference in incomes at the time of dissolution, should be shared by the partners. The Principles assume a loss of earning capacity when one parent has been the primary caregiver of the children. They also make provisions for compensation for losses in short-term marriages where sacrifices by one spouse leave that spouse with a lower standard of living than he or she enjoyed prior to the marriage.
Finally, under the Principles, compensation could be awarded based on loss of a return on an investment in human capital. This would be most important in the vast majority of states that do not recognize enhanced earning capacity or a degree or license as a divisible marital-partnership asset.
In setting the amount and duration, the ALI recommends a formula based on a specified percentage of the difference in the spouses’ postdivorce incomes for a period of time that is dependent on the length of the marriage.
Alimony guidelines. Another attempt to provide guidance on support issues is the enactment of spousal support guidelines. The move toward adoption of these guidelines draws obvious encouragement from states with child support guidelines. But efforts to adopt statewide guidelines have foundered on the rocks of an assertion that the law of spousal support is “not as uniform” as the law of child support. There are too many types of marriages, with too many different possible fact situations, to permit creation of reasonable guidelines.
Many state legislatures are considering the use of alimony guidelines, but few have adopted specific formulas to determine alimony awards. Local guidelines in counties of several different states have been developed to promote uniformity of alimony awards.
ABA Family Law Section
This article is an abridged and edited version of one that originally appeared on page 8 of Family Advocate, Winter 2012 (34:3).
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