- Learn about the growing use of spousal support guidelines.
- Learn what the American Law Institute has recommended with respect to alimony.
Alimony is, and may always be, a concept in flux, ever-changing to meet the concerns of public policy. The problem with alimony today is that there is no intuitive sense of its purpose in the twenty-first century.
Even the name mirrors its changeable nature: alimony, spousal support, maintenance. Some time ago, the ordinary person did understand what alimony was and why it was required. Divorce was based on fault, women could not support themselves; thus, when the marriage broke down because of the husband’s fault, the wife needed lifelong support or she would face starvation.
Perhaps this understanding of alimony still exists in cases where divorce occurs after a traditional, long-term marriage in which the wife did not work. But many marriages today are not long-term, and very few women are entirely removed from the workforce. By and large, the marriages of our grandfathers and grandmothers do not exist today.
The economic, social, and cultural factors that have changed our views of marriage have shattered our once cohesive understanding of alimony. Some courts and commentators, and even a few legislatures, have reasoned that since women now work, alimony should be curtailed drastically or even abolished. This trend was most recently exhibited in Massachusetts, where on September 26, 2011, the governor signed legislation, ending alimony when the payor retires, and generally limiting alimony to a number of years based on the length of the marriage.
Most states have not yet taken such a drastic step: alimony continues to stumble along, based on habit and precedent as much as logic, as part of the modern divorce case. We have difficulty explaining its precise purpose; yet at some level, we are reluctant to get rid of it entirely. In short, the law of alimony is in the midst of an identity crisis. It was well understood a generation ago; however, today 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.
Modern academics have been pondering the nature and purpose of alimony for some time now, without clear success. E.g., David Hardy, Nevada Alimony: An Important Policy in Need of a Coherent Policy Purpose, 9 NEV. L.J. 325 (2009); Gaytri Kachroo, Mapping Alimony: From Status to Contract and Beyond, 5 PIERCE L. REV. 163 (2007); Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 10 n. 20 (1989) (“our intuition favoring spousal claims under certain facts is correct, even if we have never had a clear understanding of why”).
The Uniform Marriage and Divorce Act
The variance 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) 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. UMDA § 305. Moreover, the drafters of the UMDA, including some of the brightest minds in family law, 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.” UMDA § 308. 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 those 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 (UMDA § 308) 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
Second, 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. See Brett R. Turner, Rehabilitative Alimony Reconsidered: The “Second Wave” of Spousal Support Reform, 10 DIV. LITIG. 185, 205 (1998) (concluding that 12 states adopted the UMDA maintenance provision directly, and another three cited it in adopting similar rules by case law). 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. The employability of any spouse, either husband or wife, is a question of fact and not law, and a question upon which experts can speak with much more authority than legislators or judges.
By basing assessments of employability on evidentiary facts and expert testimony, the courts can avoid the broad, justified 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 upon 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 (where one spouse has supported the other through school). 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. (The material on the ALI Principles was provided by Prof. Mary Kay Kisthardt, and is found at Re-thinking Alimony: The AAMLs Considerations for Calculating Alimony, Spousal Support or Maintenance, 21 J. AM. ACAD. MATRIM. LAW. 61 (2008). The author thanks Prof. Kisthardt for allowing a reprint of these materials.)
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 the generally favorable experience in most states with child support guidelines. But efforts to adopt statewide guidelines have often 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. As a result, guidelines are now in force in only scattered local areas.
The movement for alimony guidelines may be reaching critical mass, however. In Florida, for example, in Bacon v. Bacon, 819 So. 2d 950 (Fla. 4th Dist. Ct. App. 2002), in a concurring opinion, Judge Farmer expressed the view that “broad discretion in the award of alimony is no longer justifiable and should be discarded in favor of guidelines, if not an outright rule.” 819 So. 2d at 954. See Marti E. Thurman, Maintenance: A Recognition of the Need for Guidelines, 33 U. LOUISVILLE J. FAM. L. 971, 972 (1995). Perhaps the movement toward guidelines is an expression of frustration that spousal support is not based on fault and ostensibly is not based on need. At least with guidelines, one can point to a number and say, “That’s what you are entitled to.”
Many state legislatures are considering the use of alimony guidelines, but few have adopted specific formulas to determine alimony awards. The Georgia and Nevada supreme courts have recommended adoption of alimony guidelines. Michigan has an alimony guideline committee, which has reviewed guideline computer programs and recommends a particular one for use in the state. The developer of this Michigan program also has recently developed software to determine alimony awards in Washington and Kentucky as well. At present, most jurisdictions that are using guidelines are doing so on a local or countywide basis.
Pennsylvania has gone a step further by taking these factors and incorporating them into actual monetary guidelines, which are statutorily mandated in temporary alimony situations. 23 PA. CONS. STAT. § 4322 (2002). Arkansas also provides for temporary spousal support in its administrative order on Arkansas Child Support Guidelines, In re: Administrative Order Number 10: Arkansas Child Support Guidelines, Supreme Court of Arkansas, Jan. 31, 2002. Similarly, New Mexico establishes temporary support by a supreme court rule, which provides that each party gets one-half of any remaining income after fixed expenses are paid. Virginia R. Dugan and Jon A. Feder, Alimony Guidelines: Do They Work?, 25 FAM. ADVOC. 4, 21 (2003). Massachusetts, Maine, and Texas now have alimony guidelines as well.
Local guidelines in counties of several different states have been developed to promote uniformity of alimony awards. In Santa Clara, California, a guideline for determining alimony was implemented in 1977. Even though it is not statutorily mandated, much of the state of California has adopted the Santa Clara formula as a guideline for establishing alimony awards. Guidelines are also in use in Washtenaw County, Michigan; Maricopa County, Arizona; and Johnson County, Kansas.
Until there is a consensus on what alimony is supposed to do, what its overriding purpose is, there will continue to be wide variations in the law concerning the establishment and termination of alimony. Thus, predicting future trends will be nearly impossible.
Wide Variance in State Statutes
Because the law of spousal support lacks a clear and obvious purpose, there is an extraordinary degree of variance among the rules of law applied in the various decisions. At one extreme lies Indiana, where the law limits most divorcing spouses to three years of support. IND. CODE ANN. § 31-15-7-2. At the other extreme is Virginia, where spousal support must be permanent, and limited-duration support is error as a matter of law in cases filed as recently as 1998. VA. CODE ANN. § 20-107.1. See, e.g., Brooks v. Brooks, 27 Va. Ct. App. 314, 498 S.E.2d 461 (1998). Between these two extremes are 49 other positions, each one slightly different from the others.
The second-wave reforms fail to address expressly the great unresolved question of spousal support law.
What is the measure of the dependent spouse’s basic entitlement to support? At common law, given the husband’s ability to pay, that measure was normally the marital standard-of- living. Older case law stating that measure generally remains good law on the books. But time-limited support awards are almost mandatory (if support is awarded at all) after short marriages, and not uncommon in medium to long marriages. Clearly, the previous consensus that the wife is always entitled to remain at the marital standard-of-living (within the limits of the husband’s means) has broken down.
Conversely, except for states, such as Indiana and Texas, which limit the duration of spousal support by statute, permanent spousal-support awards are still common as well, especially after long marriages in which the parties had multiple children. It appears, therefore, that the common law standard still applies to some types of marriages. But few, if any, courts have expressly provided any guideline for determining when the traditional standard applies. There is further no express discussion of what standard does apply when the traditional standard is no longer in force.
If these questions were to be presented to a panel of appellate judges, one suspects that they would tell us that the answers lie in the trial court’s discretion, to be determined on a case-by-case basis. This is certainly a convenient answer for those who would otherwise be forced to explain disparities in case law. But such an answer is not good policy. The general standard for measuring support awards is a fundamental question of law, one that should be given a uniform answer in cases with uniform facts. Unbounded trial court discretion guarantees that the results of cases will not be consistent. Moreover, experience with law both before and after enactment of child support guidelines proves that unbounded trial court discretion discourages out-of-court settlement. Stated differently, settlement is encouraged when the law provides some degree of guidance as to the discretion of the trial court. On the fundamental question of how one measures the dependent spouse’s entitlement to support, the law at present provides very little guidance.
One attempt to encourage such guidance is the requirement in some second wave reform statutes that trial courts make findings of fact and conclusions of law to buttress its support award. E.g., N.C. GEN. STAT. § 50-16.3A(c); N.J. STAT. ANN. § 2A:34- 23; VA. CODE ANN. § 20-107.1(F). The reformers’ hope is that this findings requirement will lead to more specific and clear support cases at the appellate level, providing more guidance by a form of trickle-up theory. It remains to be seen whether this attempt will succeed. But there has not yet been any identifiable increase in the level of guidance provided by appellate decisions on support issues; the cases continue to emphasize trial court discretion.
The unchanged emphasis on trial court discretion is not surprising. Formulating a standard for measuring entitlement to support is fundamentally a question of policy. As such, it is more within traditional notions of the legislative power than the judicial power. Appellate judges, who see only the facts of individual cases that come before them, are not ideally positioned to consider a broad range of cases and create a unifying rule. This is not a criticism of provisions requiring findings and conclusions; those provisions clearly do improve the law of spousal support. But they cannot by themselves lead their team to victory.
Published in Family Advocate, Vol. 34, No. 3 (Winter 2012), p. 8–11. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.