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Alimony or maintenance (as it is now called in some states) continues to pose significant challenges for matrimonial law practitioners. It is an area fraught with uncertainty due primarily to a lack of clarity about the reasons for requiring one spouse to continue to share post-divorce income with a person with whom they no longer have a legal relationship. Because of an inability to come to a consensus regarding the underlying rationale for alimony, legislatures often include a long list of factors for judges to consider. One commentator found more than 60 factors mentioned in the 50 states. Unfortunately there are often internal inconsistencies among the factors, and no state provides a priority ranking. Judges struggle with how to apply the factors to reach a fair result. In the meantime, attorneys are hard pressed to predict for their clients a probable outcome. No reliable method of prediction is a quandary Without a reliable method of prediction, clients are in a quandary as to whether to assume the risk of trial. This makes settlement difficult to achieve. To meet concerns of fairness and predictability, some jurisdictions have turned to the promulgation of guidelines. In this column we will attempt to summarize some of the prevailing theories underlying spousal-support awards, describe some of the factors courts consider in making an award, and take a closer look at how guidelines are being used. The origins of alimony date back to the English common law system. Historically, there were two remedies from the bonds of a bad marriage. Although an absolute divorce was theoretically possible, it required an act of Parliament and was therefore hardly ever used. More commonly, a plea was made to the ecclesiastical courts for a separation from bed and board. The action was akin to our current-day separation. A husband who secured such a divorce (known as a mensa et thoro) retained the right to control the parties’ property and the corresponding duty to support his wife. When Parliament authorized the courts to grant absolute divorces, the concept of alimony remained and was adopted by the colonies as well. The initial rationale based on a fault-based system of divorce appeared to be twofold. First, alimony was seen as damages for breach of the marital contract reflected in the fact that in most states it was only available to the innocent and injured spouse. The other rationale appears to have been the assumption that women would be unable to support themselves through employment. Although these rationales were completely undermined by the acceptance of no-fault divorce and the rejection of gender stereotyping, the practical reality of women’s financial dependency remained in many marriages. With the advent of no-fault divorce, alimony lost its punitive rationale. The Uniform Marriage and Divorce Act (UMDA) changed the character of these awards to one that was almost exclusively needs-based and at the same time gave spousal support a new name: maintenance. The marital standard of living was only one of six factors relied upon in making awards under the UMDA where the focus was now on “self-support,” even if it was at a substantially lower level than existed during the marriage. In addition, when awards were made they were generally only for a short term, sufficient to allow the dependent spouse to become “self-supporting.” This “first wave” of spousal support reform often left wives, who were frequently the financially dependent spouses in long-term marriages, without permanent support. In response to the denial of long-term awards for those most in need of them, the “second wave” of reform took place in the 1990s and expanded the factors justifying an award beyond “need.” This new legislation encouraged courts to base awards more on the unique facts of a case and less on broad assumptions about need and the obligation to become self-supporting in spite of the loss of earning capacity that often occurs in long-term marriages. The use of vocational experts to measure earning capacity became more widespread. For a short time there were attempts to quantify the value of various aspects of homemaker services as part of a support award. Many courts rejected these latter attempts. Maintenance was sometimes awarded for “rehabilitative” purposes such as providing income for the time it takes the recipient to acquire skills or education necessary to become self-supporting. Additional rationales for maintenance included contract principles such as expectation or quasi-contract doctrines like restitution or unjust enrichment. Still left unanswered, however, was the critical question of the measure of the dependent spouse’s basic entitlement to support. Is it at the marital standard of living (as provided in the common law) or is it at some other level based on “need.” The current trend is to provide support based on factors that include need, and in some states, fault. But “need” remains an elusive concept. Is it the marital standard of living? Is it subsistence level? Is it income to provide income sufficient to acquire skills or training to become self-supporting? Is it the equitable division of the marital stream of income? With respect to fault, there are those states in which it is controlling, those in which it is relevant and those where it is not to be considered at all. Some states that consider fault will permit only egregious marital fault as a factor, such as a direct expenditure of marital funds for a paramour. An alternative theory to need-based awards is one premised on “contribution.” Here the idea of marriage as an economic partnership, which is the theoretical basis for a sharing of the partnership’s assets under the rubric of equitable distribution, can also be used as a basis for compensating a spouse for contributions made to the partnership. Finally, the American Law Institute in its Principles of Family Dissolution focuses on spousal payments as compensation for economic losses that one of the spouses incurred as a result of the marriage. The ALI guidelines are premised on the fact 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 in order to increase earning capacity. 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 before the marriage. Finally, compensation could be awarded based on a 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. Given the variety of rationales for alimony and the difficulty in applying factors, some jurisdictions have turned to guidelines to at least provide some measure of consistency and predictability. The guidelines are used in temporary or pendente lite cases in some jurisdictions and for permanent awards in others. There are other variations as well. Most common guideline factor: length of marriage The most commonly agreed upon factor for making an alimony award is the length of the marriage. This factor is considered in all states. Accordingly, most guideline approaches use this as a starting place. In most jurisdictions it is assumed that a spouse in a short-term marriage (generally less than five years) will not be entitled to a significant award, whereas those at the other end of the scale (20 to 25 years or more) will receive a significant award for a longer period of time. The other factor that is emphasized (and may be the only factor used in a temporary award) is the disparity in income. An example of a guideline that takes into account these two factors is from a jurisdiction in Kansas. The Kansas guidelines provide that parties with no children have maintenance determined by calculating 25% of the difference between the spouses’ gross incomes (or earning capacities) up to a difference of $50,000 a year. For a difference in excess of $50,000 per year, 22% of the excess is added. For couples with children, where a child support award is also going to be made, maintenance is determined by calculating 20% of the difference between the incomes. Under these same guidelines, the length of the marriage is the primary factor in the determination of the duration of the award. When designing guidelines, several questions must be considered. When determining differences in income, what figure will be used: gross income or net income? For ease of application, some states have chosen to use income as defined in the child support guidelines. While this has the advantage of simplicity, some argue that the inherent differences in the child support and maintenance obligations make this inappropriate. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected].

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