Analyzing Alimony, Maintenance and Divorce

Recently the Wall Street Journal posted an article by Jennifer Levitz titled: The New Art Of Alimony.  The article on alimony and divorce examines several cases of alimony which, although seemingly extreme, are also indicative of the slippery reasoning and changing situations that create situations in which one ex-partner is expected to pay the other ex-spouse an indeterminate amount for an indeterminate amount of time seemingly without regard to the recipient’s ability to pay their own way and even regardless of the payor and recipient’s future financial situations.

The article brings up the question of the underlying purpose of alimony, spousal support or maintenance, whether it is still a worthwhile form of compensation in a day when the sexes, now more equally represented in higher education and the workplace , and therefore earning potential are truly equal in the eyes of the court, and whether any of the variety of state solutions to the fairness or unfairness of these payments are working.

 

“There is a great need for alimony to continue,” says Dr. Denea Wright on a recent On Point radio appearance. She explains her thinking based upon the long history of divorce in which women were essentially treated as wards of the men they married and upon the exponential nature of worth and earning potential. In other words, a sacrifice early in the marriage lends itself to exponentially greater rewards later in life, and thus, that sacrifice should be compensated as the rewards are reaped.

According to this thinking, a person who stays at home and holds down the fort while the other spouse goes to school or works on his or her career is responsible for approximately 2/5 of the career earning potential that the other spouse enjoys later in life and is, therefore, entitled to a piece of the pie on into the future.

Wright goes on to explain: “Rarely is an equitable distribution going to adequately pay back the spouse who has invested in the other spouse’s career. In marriages that end fairly early the couple hasn’t accumulated enough wealth, so the property distribution by itself is not enough to compensate for the investment. But if you have a discretionary, flexible system that allows for modifications you can at least minimize the hardships.”

Tennessee presently utilizes what is called “Rehabilitative Alimony,” where the purpose of maintenance is clearly laid out. By doing this, the state has created a framework and reason within which alimony and maintenance payments can be formulated and arranged mostly within a limited framework.  By using this method, a partner who receives alimony is only receiving it so that their earning situation can be rehabilitated to the point where they are back on their feet. This also offers a pattern for determining who deserves a maintenance payment and for how long.

Though many would argue that maintenance and alimony are theoretically gender-neutral, Joseph Cordell, Principal Partner of Cordell & Cordell, P.C., a firm focusing on men in divorce, has an opinion that it is effectively weighted against the man. “It’s really not gender-blind. The wife has her cake and eats it too. If a guy shows up in divorce court without having had a job for the past three years he’s considered a deadbeat. Again and again the guy has to prove that he was not a deadbeat.  The burden of proof falls squarely upon him regardless of whether he is contesting maintenance or seeking maintenance. This issue of a woman not working doesn’t even come up when she is seeking maintenance or contesting it. If the issue of her unemployment is brought up, it is termed a “sacrifice.”” 

Cordell continues: “Since moving to no-fault system, and since moving to a world of Women’s Rights and equal pay, which are to be applauded, domestic relations laws have not been updated to keep pace. It is simply inconsistent with these other advances to presume that one party has the duty to provide support for an equal adult, essentially paying child support for an adult.”

Cordell explains that according to contract law there are two types of damages that can be sought after the dissolution of the partnership: Expectation Damages and Restitution Damages. “We have to ask what is the proper measure of damages in a particular divorce.  Let’s take the contract approach and use contract principles which consider who is the breaching party.  You just can’t use expectation damages because it is too speculative. You have to go with something that is more concrete. Contract principle would dictate that if she hasn’t breached the contract, she is due some compensation, but any compensation should be in proper measure with her investment along with what benefits she enjoyed during the marriage.”

Family law, as any law, often has before it the painful task of playing catch-up with the norms and needs of society.

We spoke to Frank Murphy, J.D., of Cordell & Cordell, P.C., to find out more about real-world maintenance and alimony. Read the interview about alimony and divorce here.

For more information check out the Tom Ashbrook, On Point  Radio Podcast

 

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