ALIMONY
Payment that a family court may order one person in a couple to make to the other person when that couple separates or divorces.
The purpose of alimony is to avoid any unfair economic consequences of a DIVORCE,
even after property is divided and CHILD SUPPORT, if any, is awarded. Courts set few specific guidelines to attaining this broad goal: instead of telling judges how and when to award alimony, most courts simply grant them broad discretion to decide what is fair in each case. For example, suppose two individuals whomarried in 1985 agree in 1995 to divorce. At thetime of the divorce, the husband earns $63,000 ayear, after seven years at a large company wherethe top pay for his specialty is $80,000.When thecouple married, he was in graduate school and thewife was earning $22,000. The wife worked forthree more years, supporting the husband whilehe completed his coursework and graduated.When their first child was born, they agreedthat the wife would care for the child at home.Atthe time of divorce, the wife had been workingfull-time for one year since the couple’s children,ages seven and six, had entered school. She wasearning $23,000 a year and would have custodyof the children.A judge in this case would certainly awardchild support and would probably divide maritalproperty equally between the couple. But itmight not seem fair to the judge to allow thehusband to leave the marriage with the sole possessionof the couple’s most valuable asset— hisearning potential—when the wife contributedto his education by supporting him.Unlike the family’s home or station wagon,the husband’s earning power has not yet reachedits full value, but it promises to grow. It seemsespecially unfair for the wife not to receive ashare of it since after helping the husband attainhis education she agreed to forfeit her earningpower to invest time in the family. The severalyears she spent out of the workforce continue tohandicap her earnings. Alimony is the onlymeans available to the court to avoid a potentiallyunjust division of assets.The judge in this case may award alimony ormay award a token amount—such as $1 ayear—so that the wife has the option to requestan increase later on (modifying an award is easierthan winning one after the divorce). Or thejudge may award no alimony; judges are notrequired to award alimony.The HUSBAND AND WIFE in this example areunlikely to find a single solution they both considerequitable. In trying to reach an order thatis fair, judges must balance spouses’ contributionsand sacrifices during the marriage withtheir needs after the divorce. Although the resultmay not match both spouses’ ideas of what isfair, one of alimony’s biggest virtues is its flexibility:it can always be changed.Alimony can be modified or eliminated asthe former spouses’ needs change, if those needsare the result of decisions they made as a marriedunit. Awards and increases in alimony are meantto address only needs that are caused by thedivorce itself, not unrelated needs. If the wife’selderly mother becomes ill and dependent on herafter the divorce, for example, the wife’s needincreases, but the increase is unrelated to thedivorce and will not increase her eligibility foralimony.However, a significant change in circumstances—such as a rise in the recipient’s incomeor a drop in the payer’s income—can cause thecourt to reduce or end alimony. Occasionally,courts increase alimony to keep up with inflation.Many courts have indicated that situationssuch as maltreatment are not valid triggers foralimony. Courts have clarified that allegations ofphysical or other harm done by one spouse mustbe brought in a civil lawsuit, to be heard anddecided by a jury. In successful cases, compensatoryand PUNITIVE DAMAGES would be awarded,not alimony.Even in less egregious cases, alimony is notawarded as a punishment, especially in statesthat have adopted no-fault divorce laws—that is,laws providing that neither spouse has to provewrongdoing on the part of the other.Gaps in earning power that tend in generalto favor men over women create another situationthat many courts believe they cannotresolve using alimony. Such gaps are often thereason married couples decide that if it is appropriatefor only one spouse to be the wage earner,it should be the husband. But courts do not baseindividual alimony awards on this trend alone,in part because an individual spouse cannot beheld responsible for social injustices.In fact, state laws specifying the gender of thepaying spouse and of the receiving spouse havebeen ruled unconstitutional. In deciding Orr v.Orr 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306(1979), the U.S. Supreme Court ruled thatAlabama state law, which specified that husbandsmay be ordered to pay support to wives, but notvice versa, violated the EQUAL PROTECTION CLAUSEof the FOURTEENTH AMENDMENT. The case arosewhen William Orr, who had been ordered to payalimony, was taken to court by his ex-wife forfailure to pay. Orr’s defense included a motionrequesting that the Alabama alimony statute bedeclared unconstitutional. Although Orr was notseeking alimony from his ex-wife, he argued thatthe award to her would decrease if his circumstanceswere considered in addition to hers. TheSupreme Court decision supporting Orr meantthat gender could not be considered in awarding alimony (although even in the 1990s very fewalimony awards are made in favor of men).Modern underpinnings for alimony have littleto do with gender, but this was not always so.The U.S. model of alimony is based on ecclesiasticallaw (guidelines of the Christian religion),dating from a time in England’s history whendivorce did not exist. Unhappily married couplescould live separately, but the husband wasstill obliged to support the wife financially. Thisarrangement was known as a divorce a mensa etthoro (“from bed and board,” in Latin), and wasnot really a termination of the marriage. Thislimited divorce did not allow the parties toremarry, for example, and did not affect inheritancerules. The wife remained her husband’sdependent, and alimony was seen as his ongoingmarital obligation to her.When full divorce became available, the ideaof alimony continued, but with some importantdifferences. In the early 2000s, alimony awardswere being made based not on men’s andwomen’s roles, but on relative needs arisingfrom decisions made during the marriage.Alimony is not an aspect of marriage, as it was indivorce a mensa et thoro, but only becomes necessary—and available—from the time ofdivorce. Because the considerations that enterinto a divorce award are sometimes complex,courts usually clarify the award’s purpose andmay place a time limit on it.No mathematical guidelines exist to tellcourts how to calculate alimony. In addition,each state legislature sets its own policy regardingwhether and when alimony may be awarded.The Uniform Marriage and Divorce Act(UMDA), which many states use as a model, recommendsthat courts consider the followingfactors: the financial condition of the personrequesting alimony; the time the recipientwould need for education or job training; thestandard of living the couple had during themarriage; the length of the marriage; the age,physical condition, and emotional state of theperson requesting alimony; and the ability of theother person to support the recipient and stillsupport himself or herself.Courts have at times awarded alimony whenan unmarried couple separates, if the relationshipclosely resembled marriage or in other circumstances,such as in keeping with the couple’sintentions and verbal agreements.Awards of thistype are informally called palimony. Private separationagreements negotiated between divorcingindividuals also can contain alimony provisions.For these reasons, it is difficult to estimateaccurately the size and frequency of awardsthrough the most common method, U.S. censusdata.If awards are hard to estimate, compliancewith awards is nearly impossible to gauge.Alimony enforcement is unlike child supportenforcement, which has the “teeth” of wage GARNISHMENT,liens, and other mechanisms. Returningto court with contempt-of-court charges isusually the only option a would-be recipient hasto enforce an existing alimony order.If the divorce decree does not specify anending date, an order to pay alimony usuallyremains effective until the court that awarded itchanges or ends it. Alimony usually ends whenthe recipient remarries; this is known as terminablealimony. In the case of the recipient’sremarriage, the payer sometimes must return tocourt to have the court change the alimonyorder, but often the termination is automatic.The payer’s death is not necessarily enoughto end payments: some orders allow the recipientto inherit funds from the payer’s estate orrequire the payer to maintain a life insurancepolicy that will continue to support the recipientafter the payer’s death. These provisions, whenmade, often involve a recipient whose age orhealth makes it too difficult for the recipient toenter or reenter the workforce.On September 1, 1995, Texas became the laststate in the country to authorize the award ofalimony payments in divorce proceedings. TXFAMILY § 8.001. Until then, Texas courts hadruled that the state constitution prohibitedalimony awards because alimony was not maritalproperty existing at the time of the divorce.Instead, Texas courts said that alimony awardsnecessarily involved calculations based solely onthe future, post-divorce earnings of the exspousewho would be making the alimony payments.Texas courts also observed that spouses whosacrificed educational or career opportunitiesduring the marriage to raise children so theirspouses could pursue educational or careeropportunities of their own could be adequatelycompensated for their sacrifice by receiving alarger share of the marital property than spouseswho had not made such a sacrifice. In otherwords, Texas courts believed that since they hadthe power to give one spouse a larger share ofthe marital property to compensate for any career or educational sacrifices that spousemade during the marriage, there was no need toaward alimony too. Courts also questioned whyex-spouses should be under any obligation tosupport each other after divorce, when thewhole purpose of divorce is to end the costs andbenefits of marriage.But judges, lawyers, and scholars increasinglycriticized the Texas statutory scheme asbeing unrealistic. For example, before 1995Texas courts routinely ordered ex-spouses to paychild support from their so-called post-divorce“future earnings,” and these orders survivedscrutiny under the state constitution. Critics ofTexas law saw no reason why state courts couldnot order ex-spouses to also pay alimony out ofwages and salary they earned after the marriageterminated.Additionally, critics assailed the absence ofalimony provisions in Texas FAMILY LAW asbeing unduly harsh. In a large number ofdivorces where neither spouse had acquired substantialassets during the marriage, Texas courtswere powerless to compensate spouses who hadsacrificed educational and career opportunities,since in such situations there were essentially noassets to divide in the first place. As a result,spouses who successfully pursued educationalor career opportunities at the expense of theirpartner were allowed to walk away from themarriage “scot-free.”Despite the late twentieth-century universalityof alimony laws in the all 50 states, lawmakersin some jurisdictions continued topropose legislation that would abolish it. In1999 several Iowa legislators proposed a bill toabolish alimony, arguing that alimony laws provideincentive to get divorced. The bill neverpassed.Since alimony is an award for support andmaintenance that one spouse may be compelledto pay to another after dissolution of the marriage,it would seem to follow that no alimonycould be awarded to a spouse following anANNULMENT, which treats the marriage relationshipas if it had never existed. In fact,alimony is not awarded to spouses under anyconditions following the annulment of a marriagein most jurisdictions. However, in somejurisdictions the enforcement of a flat prohibitionof alimony awards to spouses whose marriageshave been annulled has sometimes beenfound to impose unnecessary hardship on aspouse, usually the wife, especially where theparties have lived together for a considerableperiod of time. Consequently, judicial and legislativeexceptions have been created to the basicrule of treating an annulled marriage as if it hadnever existed, for the purposes of determiningwhether an alimony award is appropriate.Underthese exceptions, temporary as well as permanentalimony have been awarded.
FURTHER READINGS
“Alimony Strategies” 2003. Family Advocate 25 (spring).American Law Institute. 2002. Principles of the Law of FamilyDissolution: Analysis and Recommendations. Newark,N.J.: M. Bender.Sheldon, John C., and Nancy Diesel Mills. 1993. In Search ofa Theory of Alimony. Orono,Me.: Univ. of Maine Schoolof Law.Storey, Brenda L. 2003. “Surveying the Alimony Landscape:Origin, Evolution and Extinction.” Family Advocate 25(spring).
CROSS-REFERENCES
Child Support; Damages; Divorce; Family Law; Husbandand Wife; Marriage; No Fault Divorce; Sex Discrimination.
