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September 28, 2021 Alimony & Spousal Support

Guideline Spousal Support and the Female Payor

By: Kathleen McNamara

The marriage had lasted less than 10 years, the marital estate was fairly small and easily divided, child support was a simple calculation, as was the amount and duration of spousal support under the statutory guidelines.  Yet the case was proving nearly impossible to settle, leading the judge to remark in exasperation at a recent pretrial settlement conference, “Why is it so hard to settle these cases where the wife has to pay spousal support to the husband?” 

“Why is it so hard to settle these cases where the wife has to pay spousal support to the husband?”

“Why is it so hard to settle these cases where the wife has to pay spousal support to the husband?”

Credit: Ketut Subiyanto via Pexels

In recent years some states have enacted guidelines, or mathematical formulas, to make the issue of spousal maintenance fairer, particularly in 2-income households, more predictable and less litigated.  But many judges and lawyers have found that, even with clear guidelines, spousal support can still be a substantial obstacle to settlement in opposite-sex cases where the wife has to pay “manimony,” the affectionate term for spousal support paid to a man.  Countless women have proclaimed to their divorce lawyers, “I’m not paying him a dime!”

The reasons for this are largely cultural and emotional.  Although more and more families today have mothers who are the primary breadwinner, many of those women likely did not grow up in a home where their mothers filled the same role.  So some women are genuinely surprised to learn that they will end up having to pay support to their husbands after their divorce.  Male breadwinners, on the other hand, often enter into divorce grudglingly acknowledging the existence of their spousal maintenance obligation even if hotly disputing the appropriate amount or duration.  This persisting difference in male and female expectations demonstrates that, on the whole, litigants’ expectations are evolving much more slowly than their reality.

Many women are also deeply resentful over their spousal support obligation. Perhaps these women feel that they pulled the laboring oar not only on the professional front, but also on the child-rearing front, and it is unfair they now have to pay a spouse who contributed little to either.  Or perhaps some women are divorcing a husband with emotional or substance-abuse issues that prevented him from being more financially successful.  Such women likely feel they did all the work to keep the family running, while having to manage a “problem” spouse at the same time.

Whatever the reason, female-payor cases often have an emotionality to them that can make them much more difficult to resolve than cases where the husband pays the wife. Accordingly, it is important for the attorney representing a female-payor to set reasonable expectations right away, by making the client aware of the law relating to guidelines immediately, and where she falls within them as soon as that can be determined. That attorney may also have to get more creative to reach a settlement.  In male-payor cases, the support dispute is usually reduced to determining how much income to impute to the recipient-wife in the support calculation, or the length of time the payments should continue.  In female-payor cases, the attorney may need to get far more creative, and look to terms beyond spousal support, to reach an agreement.  A lump-sum buyout, often if the payor has substantial non-marital property, a disproportionate allocation of the marital estate to the husband, or allocating certain assets to the husband at a discounted value can be ways to achieve settlement that avoid the spousal support issue entirely.  If creative methods to avoid spousal support are unsuccessful in getting settlement over the hump, then as one Chicago-based mediator put it, “sometimes you just have to tell her to hold her nose and pay it.”

This problem may be temporary. According to the National Student Clearinghouse, at the close of the 2020-2021 academic year, women made up 59.5% of college students, an all-time high, and men made up 40.5%. In 2016, according to Enjuris, the number of women surpassed the number of men enrolled in law school for the first time ever, and that has continued every year since.  These statistics indicate that the percentage of female-breadwinner households will only increase in the future.  Twenty-five years from now there may be no discernable difference between the attitudes of women and the attitudes of men toward their spousal support obligations.

Family law is an imperfect tool that judges and lawyers use to try to resolve some of life’s most difficult disputes and spousal support can be one of them. Spousal support often raises questions about much larger issues such as a woman’s role in the family structure and the relationship between husband and wife. In some respects, spousal support law still reflects antiquated notions about gender roles, the automatic termination of support upon the recipient’s cohabitation with another person being one example. The enactment of spousal support guidelines, which in theory provide fairer and more predictable results in cases with two income earners, are an effort to bring spousal support law into more modern times. But long-held attitudes can linger among men and women, and people’s differing viewpoints on female-payor spousal support often mirror their differing viewpoints about those larger gender-related issues.

It is important for the attorney to be aware of, and sensitive to, his or her client’s views on these issues. Ensuring that the female-payor client is educated early and often about her maintenance obligation can help to prevent this emotional minefield from derailing her case. Creative solutions may help, but some female payors will just have to grit their teeth and write the checks.

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Kathleen McNamara

Esq., Chicago, IL

Schiller, DuCanto & Fleck LLP

ABA Section of Family Law Alimony & Spousal Support Committee Vice-Chair