The Ongoing Problem Of Spousal Support

spousal supportSpousal 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.”

Rehabilitative alimony

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.

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4 comments on “The Ongoing Problem Of Spousal Support

    My X left after loading up matrimonial property on her own which was not appraised and divided as should have been over 15 years ago. Even though I was abandoned and deserted, the attorneys agreed to a _no fault Illinois approach of “irreconcilable differences”. All propery aquired during a 30 year marriage was appraised and divided 50-50, along with my reitrement
    fund. The children were all over 21, and any college loans were divided 50-50. I was ordered to pay permanent maintenance…..until death/or her re-marriage. One very important statue for
    the courts to abide by in 2015 and hereafter……..would be that the spouse cannot be able to make through her employment (a RN degree for my spouse was obtained during the 30 year marriage) more than 1/2 of what the paying spouse’s income is to be able to collect any maintenance at all. A marriage is considered 50-50 for both, so why should the paying spouse have to pay maintenance when the receiving spouse is making big bucks on her own, RE… a
    registered nurse makes big bucks, plus has her insurance paid for, retirement plan, and vacation time and personal days off, which as a self employed professional under Obamacare
    has limited my income to peanuts, no retirement, have to pay for my own insurance, get no
    vacation or sick pay or personal days.If I make $100,000 per year and my X-makes $60,000
    a year….why is she entitled to support of any kind ?????? I say if she makes over $50,000 on her own, then I should not have to pay any maintenance at all !….Please leave your comments…..I would appreciate any an all feed back…..Thank-you and have a wonderful life.

    The system in Illinois is ridiculous. You better not get married or divorced in Illinois. The formula developed in order to ‘automatically’ calculate maintenance does not take into consideration the final amount left to the payor. So the payee usually ends up at least with 60 percent or more of the total available income. And on top of that, you need to pay child support PLUS other medical, educational, etc… expenses. How does that even make sense? Obviously, this is a huge incentive for the payee not to work or make less money for as long as they can. I understand maintenance in the past or when one party is unemployable due to health or family responsibilities. But this? We also know that the largest population negatively affected by this maintenance legislation are men and that is the reason why they are never questioned. The only option: pre-nup agreements, even if they only include a cost that stipulates both parties renounce to any maintenance.

    In Massachusetts if you bring your divorce to court, you are playing Russian Roulette. Unfortunately many times you have to bring it to court because of animosity between the parties. The judge has far to much “discretion” and can play with people’s lives, which happened to me. After almost 20 years of marriage I found my ex-wife had been cheating on me and my kids for over a year. She was going away on weekends with her “girlfriends”, stupid me. I filed for divorce and was forced to bring it to court. She and her lawyer lied to a probate court judge and I lost my kids, my house, about $500K and I have to pay the ex about $2800 per month for 6.5 years for child support. The system is B R O K E N, at least in Massachusetts.

    I agree there must be something done.

    My ex gets and will receive half my military retirement until either I die or she dies. This is another issue beyond this article.

    Too much of a political hot potato to even consider changing.

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