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The Future of Spousal Support: We've Come a Long Way, Baby

By Frieda Gordon, CFLS

Los Angeles County

The concept of spousal support, always an enigma at best, has simultaneously metamorphasized over the years and returned us to the dark ages. The pace of modern times has long surpassed society's vague attempt to equitably set the duration and termination of spousal support in a gender-neutral and unstereotypical manner. Whether the feudal origins of alimony has adequately survived the industrial revolution, re-cast in the terms of the twentieth century feminist's movement towards independence, remains doubtful. Clearly, what needs to be addressed is how to adequately provide for the lower earner in a marriage for a reasonable period of time after the divorce without simultaneously invoking the dual messages inferred from society's perception of a wife's built-in disability to earn during an intact marriage and society's expectation of her sudden ability to earn post-separation. Such conflicting characterizations simply promulgates the myth of the lazy, slovenly, inferior, weaker sex whose grasp at financial independence has little, if any chance of success.

The modern movement in the United States in developing spousal support policies and guidelines for the bench and bar has gone from the concept of pay back, whether in the form of absolution of guilt or compensation for services rendered, to the concept of the levelization of standards of living from that of the pre-divorced marital partnership to that of two individuals facing, on average, relatively unequal economic futures.

This clumsy attempt to equalize as nearly as possible the disparate earning ability of husbands and wives is supposed to "protect" and "maintain" the less financially capable spouse, which paternalistic attitude often thwarts the efforts of the nineties' woman to boost her insecure fledgling independent ego to "make it on her own." The urge to resist the offer of help from the man who kept her dependent for a number of years nearly always has to be discarded for the more practical approach towards independence. Thus, the establishment of a rationale for spousal support which will take our society into the twenty-first century is imperative.

Today's values and norms have moved far from the ice age concepts of "need," "rehabilitation," "implied contract" and "compensation," as George Norton, in his article on spousal support guidelines so aptly discusses. Today's world deals with the acceptance of living way beyond one's means through the widespread misuse of credit cards, bankruptcy laws and decline in many sectors of society's economic standards of living. A simple test for what each marital partner should be receiving as income could be applied through the use of the formula wherein the numerator is the addition of the expectation at the time of the divorce of the future earned income of both partners and the denominator is two. However, the reality of living with such an order is not so easy. Although the duration of time during which the payor spouse must make that equalization payment could quite fairly be based upon the factors listed in Family Code ::4320 and 4322, the termination issue needs to be decided by use of other guideposts. If one considers spousal support to be compensation for having given up economic opportunities during the marriage, then support should continue for as long as necessary to place the supported spouse in the economic position equivalent to that which he or she might have obtained in the same period of time, but for the marriage, regardless of whether or not the supported spouse remarries or increases her available income by some other means. In some instances, this need for support may never terminate. To most lawmakers, who are, in many cases, payor spouses. This rationale is unacceptable. Furthermore, in the reverse, where the wife is the higher earner and the husband is claiming a need for spousal support, the result is also unacceptable in many, if not most, courtrooms.

Most states in the United States of America have experienced major changes in their marital dissolution laws. While "spousal support" and "maintenance" remain more acceptable alternatives to the term "alimony," the connotations of all three terms remain less than desirable. Only one state makes no provision for a divorced spouse to receive support. Twenty-five states provide for rehabilitative alimony by statute. Thirty-three states have retained their common law right to obtain post-divorce support of some kind. Four states have a mandatory time limit; for instance, Texas' is three years.

Moralistic laws regarding fault have been slow to leave the concept of support. In many cases, fault and no-fault grounds co-exist in some bazaar attempt to hang on to certain outdated standards of conduct, which effectively negate the idea behind the reform. In twelve states, marital fault may be considered in determining support. In eight of those states, fault that is proven would be a complete bar to receiving alimony. However, twenty-nine states exclude consideration of marital misbehavior altogether in determining the need and amount of support. Michigan considers fault in awarding maintenance, but not for granting a divorce! In Illinois, fault is a basis for granting divorce, but the courts are prohibited from considering fault in making an award of spousal support, even if fault has been proven.

The presumption that women are financially dependent thus still exists in parts of the United States. Even where no-fault divorce is across the board, such as here in California, the assumption of economic dependency still creeps into awards of support. Although the perception is that no-fault divorce states have moved women towards the same economic standards as their ex-spouses, the reality is that there might have been a step forward by creating the mandate, but, unfortunately, the proverbial two-steps backwards in actual practice still often applies. Thus, while our society as a whole continues to seek moral justification for an award of spousal support it clashes with, if not eradicates the benefits of, the more pragmatic approach, which seeks economic justification based upon factors such as the need for rehabilitation, the dependence of any minor children upon the supported spouse and the relative ages or disabilities of the parties.

There seems to be a national trend to do away with permanent alimony or maintenance, as being a relic of times past when women could not hold property in their own name rarely earned an independent living. The question is, should permanent spousal support be rejected under all circumstances, or whether, at least among older casualties of long-term marriages, there still is a socio-economic need for life-long support?

Alimony was originally the product of the English ecclesiastical courts to provide for legally separated wives. The Married Women's Property Acts passed in most common law property states around 1850 eliminated the economic premise for awarding support, but substituted need for reward of the "innocent" wife for the "transgressions" of her husband. Some states have adopted the policy that, since women could now own their own property, support should be eliminated and replaced with an equitable distribution of property sufficient to maintain her pre-divorce lifestyle.

Women were treated much worse under the English common law than they have traditionally been treated in community property states. The current community property and equitable distribution laws have attempted to lessen the harsh results of a divorce upon the economically disadvantaged spouse. California, Idaho, Washington and Arizona's community property laws mandate equal division of property, often in derogation of the supported homemaker spouse's needs. In Wisconsin and Arkansas, their equal division laws come close to such a mandate.

However the laws are shaped to provide assistance to the economically and/or educationally disadvantaged spouse, the reality remains that payor spouses are unwilling to pay long-term support unless accompanied by an absolution of guilt. Many judges are inclined to agree and tend to limit the amount and duration of support to the statutory minimum, regardless of whether fault is supposed to play a part in the equation. New York and a few other states determine support based upon the marital standard of living. Indiana limits support to situations where a spouse suffers a disability of some sort. The question of whether one should be supported after a relatively short marriage in the lifestyle to which she or he had become accustomed during the marriage has been litigated over and over again in California. Many experts believe that there should be no reasonable expectation of a lifetime subsidy from a marriage of short duration.

Ten years ago, following Lenore Weitzman's study of divorce and its impact upon the American woman, much was said about the appropriateness of support and whether the concept of marriage as an economic partnership precludes providing for a financially dependent spouse. Equitable division of marital property does not in and of itself provide sustenance for the lower earner, even where such division is slanted to give the bulk of the income-producing assets to the dependent spouse. Most likely, the marital estate consists of more debt than accumulations of wealth, or the bulk of the wealth is in retirement funds. In California, especially in the Southern Counties, the great and prolonged decline property values have totally derailed the notion that the award of the family business to husband could balance out the award of the family residence to wife.

Each spouse should be educated prior to their marriage to the fact that enhancement of the other's career may not translate into lifetime support, but, rather, may be capitalized into a lump sum value of the community's contribution to on of the spouse's career and earning potential, suggested by Louise Raggio to be the difference between his or her earnings in the last full calendar year before the divorce action was started and his or her earnings in the first full calendar year after marriage, multiplied by two.

In conclusion, have we women really come a long way? Yes, maybe, depending upon where we started. But, for all the advances in giving the stay-at-home spouse a break, there still remains the old stereotypes and biases that have always plagued women's desire to be given equal pay for equal work and to be given access to expanded employment opportunities. Only when job opportunities are created by minds which are open to the economic realities of the nineties will spousal support be fair both for the payor and the payee.