Spousal support seems destined to remain in a state of perpetual flux. Even the name – alimony/spousal support/spousal maintenance – keeps changing.
There are numerous reasons the spousal support system is so complicated – many of them deal with ever-changing gender and marital roles.
To understand why the system is so problematic and why so many legal experts and judges disagree on its purpose, it is helpful to examine how spousal support has evolved in the United States through the years.
The origins of spousal support law
The modern system of spousal support in the U.S. is based on an early English model of alimony, which stemmed from coverture laws.
The doctrine of coverture required a husband and wife to merge their legal identity upon marriage. After marriage, the husband would receive total control of his wife’s assets and the wife transferred her ability to own property or keep any earnings. In turn, the husband was required to support her financially and with necessary items such as clothes, food and shelter.
The most common type of divorce in England prior to 1857 was a divorce from room and board. This was similar to today’s concept of legal separation and provided spouses the right to live apart but maintain their marital relationship.
Since there were very few ways for women to support themselves in those days, the husband was required to continue supporting the wife financially.
Spousal support in the U.S.
The early system of U.S. spousal support was based closely on its British counterpart. The earliest form of support was permanent alimony. This required support payments to be made until the supported spouse either remarried or died.
Permanent alimony was necessary in the days when women were almost exclusively homemakers. After divorce, women often found themselves with children to take care of, no job, and very few skills to use to make a living. It was necessary to provide a safety net or else a divorce would leave them financially devastated.
The growing employability of women coupled with the rise of no-fault divorce led permanent alimony to gradually fall out of favor. Although most states have moved away from permanent alimony, it still exists in some states. Alimony reform bills are currently being considered in Florida and South Carolina that would address the issue of permanent alimony.
The Uniform Marriage and Divorce Act
The Uniform Marriage and Divorce Act, drafted in 1970 and amended in 1973, attempted to make marriage and divorce laws more uniform. Although it has only been enacted in a handful of states, it has made a huge impact on divorce laws throughout the country and led to the establishment of no-fault divorce.
Under the fault-based divorce system, the spouse deemed at fault would have to provide more money or property to the spouse they were divorcing. Thus, spousal support was considered a right. The rejection of the idea of fault and economic dependency rattled the foundation of traditional alimony law.
Under the UMDA, alimony can only be awarded if the spouse seeking support lacks “sufficient property to provide for his/her reasonable needs” and is “unable to support himself/herself through appropriate employment.”
Previously, alimony was awarded to allow a spouse to keep up their standard of living during the marriage. The UMDA shifted the measure of support by focusing on the spouse’s employability.
To reinforce this difference, the drafters even renamed alimony “maintenance.”
Unfortunately, this form of support was also problematic. While earlier systems of alimony considered women completely unemployable, this newer version went too far and failed to recognize the economic challenges many women do face post-divorce.
In the early 1990s, reforms were enacted that required courts to consider the facts of each case rather than rely on broad assumptions. Vocational experts were called upon to assess a spouse’s earning potential in the same way valuation experts evaluated assets in property division.
This rehabilitative model was designed to help the disadvantaged spouse obtain the training or education needed to become self-sufficient. This was typically awarded to the spouse that was denied the chance to pursue a career or education in order to tend to familial needs and handle household responsibilities. In order to receive the support, the spouse needed to provide rehabilitative goals, a plan to achieve those goals and a calculation of how much support was needed to become self-sufficient.
A strong case can be made that rehabilitative alimony swings the pendulum too far back the other way in that it again puts too great a burden on the supporting spouse. It doesn’t seem fair for the supporting spouse to have to pay for education and training for someone they no longer want to be married to.
At the very least, the needier spouse should have a burden of proof to show that the marriage is what prohibited them from obtaining that education they’re now seeking.
The ongoing problem with spousal support
Many issues remain with the spousal support system.
For one, the system is frequently abused.
In most states support will end upon remarriage, but it doesn’t always end upon cohabition, which encourages a spouse to not remarry in order to continue receiving payments.
There are also situations where spousal support establishes a welfare-state for the recipient while diminishing the desire to work for the payor because an increase in income can result in an increase in support payments.
Most damaging, the system too frequently prevents a clean split between two spouses who no longer desire to be together and further poisons an already unhealthy relationship.
The majority of problems with the spousal support system stem from the fact that there is a general lack of consensus in what spousal support is supposed to accomplish. Without an obvious purpose, there is a lack of alimony guidelines to aid courts, which results in wide discrepancies in how support is awarded.
Judges in the same jurisdiction can reasonably come to drastically different determinations on the amount of spousal support awarded based on their individual examination of the facts of the case. Such a wide range of possible outcomes discourages out-of-court settlements and often leads to unnecessary litigation, which is financially burdensome for both spouses.
Admittedly, there is no clear solution to fixing the spousal support problem. The enormous variance in types of marriages and sets of facts in each relationship make uniform support guidelines incredibly complicated to draft.
But although it might be convenient to give courts such discretion, the wide range of outcomes makes for poor policy. In order to establish a truly effective and fair system of spousal support, sound legal theory needs to be used to determine precisely what it is spousal support is supposed to accomplish and statutes need to be drafted accordingly.