Alimony reform is upon us. Last year, Massachusetts dramatically changed its alimony laws. Alimony legislation has been proposed in Florida and New Jersey. Three years ago, New York adopted guidelines for temporary alimony.
Two bills which would modernize alimony have been proposed in Connecticut during the legislature’s last two sessions. Connecticut’s Legislative Review Commission has constituted an Alimony Study Committee, whose work is underway. A look at alimony in Connecticut, historically and currently, may help to inform alimony reform. Alimony’s origins trace to the English system, under which originally absolute divorce required an act of Parliament and was, as a result, unusual. In cases of absolute divorce, because a husband retained control of his wife’s property, he also retained the obligation to support her. That obligation carried over into more modern times.
In Colonial times, Connecticut’s courts acknowledged the right of a man divorced for the adultery of his wife to marry again. The courts also entered decrees of separation on grounds of adultery and malicious desertion by the husband, making provision for alimony and granting permission to the injured party to marry again.
Connecticut’s courts uniformly euphemistically cited fault as the justification for alimony. The liability to pay alimony “is based upon the duty of the husband to continue to support a wife whom he has, in legal effect, abandoned.” See e.g., Christiano v. Christiano, 131 Conn. 589, 594 (1945); Heard v. Heard, 116 Conn. 632 (1933); Cary v. Cary, 112 Conn. 256 (1930); Wright v. Wright, 93 Conn. 296 (1919).
In other states, alimony was said to stem from the assumption that women would be unable to support themselves through employment. Nonetheless, before 1973, in Connecticut alimony was primarily the price a wayward husband paid.
In 1973 Connecticut’s divorce laws were modernized. As a result, a fault ground is no longer required, and divorces almost always enter because of the irretrievable breakdown of the marriage. (1973 Public Act 73-373, Sec. 1, now codified at Connecticut General Statutes Sec. 46b-40(c)). Adultery by the recipient is not a bar to alimony. See Conn. G.C.S. Sec. 46b-82; cf. Fricke v. Fricke, 1991 WL 59436.) While marital fault, i.e., the “causes for the dissolution,” is still considered in fashioning alimony awards, the purpose of alimony is no longer to punish guilty husbands for their transgressions.
Connecticut’s “new” 1973 alimony statute, Section 46b-82 of the General Statutes, paralleled the old statute and directed the trial courts, in fashioning alimony, to consider length of the marriage, the causes for the divorce, and the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. See Tobey v. Tobey, 165 Conn. 742, 749, n. 2.
Connecticut’s alimony statute, however, does not inform about when a court should award alimony and, if so, how much and for how long. As a result, even experts disagree about what alimony is appropriate in a given case. Recently, a group of preeminent Connecticut matrimonial lawyers was asked to evaluate alimony in a simple case. The range of outcomes was as little as $25,000 to as much as $75,000 per year. Those lawyers agreed that court-ordered alimony awards are unpredictable and inconsistent.
This situation is not unique to Connecticut: “[T]here are two significant and related problems associated with the setting of spousal support. The first is a lack of consistency resulting in a perception of unfairness. From this flows the second problem, which is an inability to accurately predict an outcome in any given case.” Mary Kay Kisthardt, “Report of the American Academy of Matrimonial Lawyers on Considerations when Determining Alimony, Spousal Support or Maintenance,” discussed in Charles Vuotto Jr., “Alimony Trends,” New Jersey Family Lawyer, Vol. 33, No. 1, p. 6 (June 2012).
Nonetheless, it has been suggested that there is a “simple and very important reason for this lack of uniformity: Every matrimonial case is different.” Cary Cheifitz, “Alimony Guidelines: If It Ain’t Broke, Don’t Fix It,” New Jersey Family Lawyer, Vol., No. 1, p. 27 (June 2012). That “reason” misses the mark. When presented with the same case, Connecticut matrimonial lawyers and judges reach inconsistent alimony results.
Over 80 percent of pending dissolution of marriage cases involve at least one self-represented spouse. If experienced matrimonial lawyers and judges can disagree about alimony in a simple case, how can inexperienced lay persons be expected to reach an appropriate agreement?
In short, Connecticut’s alimony status quo is a regime without a rationale in which awards are inconsistent and unpredictable.
What should be the basis for alimony? The assumption that women are unable to support themselves through employment has been substantially eroded. Nonetheless, there are cases in which a spouse is unable to support himself or herself and requires alimony. The notion that alimony should be a reward to the good or a punishment for the bad has been almost universally discarded. Nonetheless, our alimony statute lets the court consider fault.
Twelve years ago, the American Law Institute posited that alimony should be used to allocate financial losses that arise at the dissolution of a marriage. “Principles of the Law of Family Dissolution: Analysis and Recommendations,” p. 787 (Lexis Nexis, 2001). Since that time, no state has adopted the ALI’s compensatory approach to alimony.
Others have suggested that alimony should be rehabilitative in nature and designed to assist the recipient in obtaining the education or training necessary to become self-sufficient. See Grinold v. Grinold, 32 Conn. Supp. 225 (1975)(“The enlightened view of alimony is to characterize it as support for the party who may be at a disadvantage at the time of the divorce. That support is to continue no longer than the period of time necessary to permit socio-economic readjustment and rehabilitation.” Upon review, the Connecticut Supreme Court stated that the trial court had concluded “that the plaintiff was ‘rehabilitated’ from any ‘adverse socio-economic consequence’ of her marriage. This novel and elusive concept is not to be found in either the statutory provision concerning modification or the one establishing standards for granting alimony orders.” Grinold v. Grinold, 172 Conn. 192 (1976)).
Without citing the Supreme Court’s decision in Grinold, Connecticut’s Appellate Court has repeatedly approved of rehabilitative alimony. In the 1984 case of Markarian v. Markarian, for instamnce. the appellate court rules that “rehabilitative or time limited alimony is not new to Connecticut law. . . . Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.”
That Connecticut’s Appellate Court and Supreme Court disagree about an important rationale for and type of alimony does not bode well for those who expect our courts to craft a cogent construct for alimony. Moreover, when not dealing with rehabilitative alimony, Connecticut’s appellate courts almost always uphold alimony awards, expressly choosing to leave alimony awards to the broad discretion of the trial court.
Predictability And Consistency
Others suggest that alimony should address situations where the spouses have disparate incomes, for whatever reason. In other words, alimony should be redistributive.
Still others, including this author, have suggested that determining a rationale for alimony is less important than is making it predictable and consistent. Alimony guidelines would assist in predictability and consistency. Guidelines can take three forms: Mandatory; presumptive; or suggested. Mandatory guidelines would dictate that the judge order whatever amount an alimony formula produced. Presumptive guidelines would direct the judge to employ the formula but the court, in its discretion, could order a different amount because of the alimony statute’s criteria. Suggested guidelines would let the judge use the guidelines or not.
An often-voiced objection to guidelines is that they, in general, are “anti-woman.” That guidelines, in and of themselves, are not necessarily anti-woman or anti-man, should be self- evident. If a particular suggested guideline is thought to be anti-woman or anti-man, why not simply increase or decrease the applicable percentage?
One can easily argue that the absence of guidelines may very well be anti-woman. In litigation, the party with more money typically has the advantage. Uncertainty, like that created by Connecticut’s alimony statute, drives the cost of litigation higher, thereby placing the spouse with more money at a greater advantage. While Connecticut’s trial courts have the power to award temporary counsel fees, that power is rarely used to level the playing field. Because more often than not men control the money, the lack of guidelines, which results in greater litigation expenses, can be seen as anti-woman.
Another objection to guidelines is that they would eliminate the discretion of the trial judge. While mandatory guidelines would do so, neither presumptive or suggested guidelines would adversely impact upon the court’s discretion.
Another objection to guidelines that is never publicly stated is that they are anti-lawyer. Why? If alimony ceases to be arcane and if alimony parameters are easily ascertainable, some lawyers fear that their expertise will become less valuable. Moreover, eliminating an issue such as alimony, or narrowing the range of alimony disputes, means that the lawyer will be able to spend less time on the case. For most family lawyers, less time means lower fees. That alimony guidelines may reduce legal fees incident to divorce is an unintended benefit to the parties and should not be a reason to object.
Alimony reform is real. Knee-jerk reactions, e.g., “every matrimonial case is different;” “guidelines are anti-woman;” “judicial discretion is more important than predictability and consistency,” will inhibit meaningful analysis of the shape of that reform.