Who gets custody of the money?

“Do you have financial or other obligations to a former spouse or children? If yes, are you current in meeting those obligations?”  This question is asked in the temple recommend interview.  While child support seems fairly legitimate, and setting that aside for the purpose of this post, I question the validity of awarding long-term alimony obligations.  Children are innocent dependents, while divorcing men and women are adults who (generally) freely entered into a union and are now dissolving it.  Does alimony treat women like children rather than responsible adults?  I recently read a fascinating article in Time about current issues with alimony.

History of Alimony

The history of alimony is inextricably linked to the history of divorce.  Originally, alimony was awarded because while a wife could be “put away,” the marriage (which was ordained of God) could not be dissolved.  Additionally, the wife’s property belonged to her husband, so alimony made him responsible to pay for her maintenance.  [1].  In the 19th century, divorce became legal in cases of marital misconduct.  It was necessary to define which spouse was at fault. Alimony was awarded to the divorced wife who was bereft of financial support through no fault of her own; without alimony, adulterous husbands would have no consequences for their misdeeds. [2]  No fault divorce introduced a great deal of subjectivity into the process; “fault” became only one factor in assessing alimony obligations.  Since the 1970s, gender bias has been prohibited in awarding alimony, but as of 2006, only 3.6% of alimony awards obligated women to pay for men. [3]  This percentage is shifting as more women out-earn their husbands.  But is alimony a relic of the past?

One for you and ten for me . . .

Not all alimony is created equally.  There are 4 types of alimony in the US, and these types cover what alimony is intended to repair [4]:

  • Temporary.  Ordered to be paid pre-divorce during the separation in states that recognize separation.
  • Rehabilitative.  Given to the less earning spouse to bridge the time to allow them to become financially independent.
  • Reparative.  Awarded to repay a spouse who provided financial support to the other spouse during the marriage (e.g. paying for education).
  • Permanent.  Paid to the lesser earning spouse until the death of either spouse or remarriage of the receiving spouse.

How is alimony assessed and awarded today?  Here are some of the factors:

  • Length of the marriage.  For marriages under ten years, alimony usually doesn’t exceed the length of the marriage, but over ten years, permanent alimony may be awarded in some states.
  • Length of separation (in states where separation is recognized).
  • Age at time of divorce.  Younger divorcees are considered more likely to be able to recover financially.
  • Relative income.  Some states desire to keep spouses at the lifestyle to which they became accustomed during the marriage.
  • Future financial prospects.  If a divorcing spouse is on the verge of higher income potential, the amount may be higher.
  • Health.  If health is detrimental to the ability of one spouse to financially support him/herself, the award may take this into account as a need.
  • Fault.  Many states are “no-fault” states, meaning spouse behavior is not a factor in assessing alimony; however, in Georgia a spouse who commits adultery is prevented from being awarded alimony.

Why Alimony Is Outdated

Should ex-spouses be required to pay alimony?  What should the limits on alimony be?  Here are a few issues I see with alimony:

  • Moving on.  In addition to being mentally and emotionally tied to the one person you most want to sever ties with, alimony discourages the awarded spouse from becoming financially independent and provides disincentives for future marriages for both spouses.  In cases of permanent alimony, it shackles exes to their prior marriage in a way they can never escape.
  • Circumstances change.  Bankruptcy, disability and losing one’s job are all things that can happen in the years after divorce; yet an award based on more prosperous times can continue in perpetuity despite hardship. [5]  Some states (Florida, Texas, Maine) are beginning to see that permanent alimony is unwise, but in other states (Mississippi, Massachusetts and Tennessee), almost all alimony cases are permanent or “for life.”
  • Future spouse impacts.  If you live in Louisiana or Massachusetts, think twice before agreeing to marry someone who is obligated to pay alimony.  Believe it or not, if a spouse is obligated to pay alimony to an ex and s/he remarries, the court in those states can include the new spouse’s earnings in the obligation.  In some cases, the second wife is obligated to work to pay for the alimony of the first wife who may be living at a higher standard while not working!
  • Loopholes.  Among other loopholes, the most common is for the receiving spouse to secretly cohabitate to avoid losing alimony upon remarriage.
At least alimony makes you not wish your ex dead.

The main reason most people believe alimony is outdated is that adult women are generally able to support themselves financially.  Alimony is a relic of an era in which women were incapable of financially supporting themselves; an era still perpetuated by the call for women to stay at home rather than gaining the skills and experience that will make them employable.

What do you think?

  • Should alimony ever be awarded “for life” or is it only appropriate as a way to bridge the gap until someone can become financially independent?  I consider it unwise for any permanent alimony to be awarded.
  • Should alimony preserve someone’s standard of living or is it unrealistic to protect individuals from the vicissitudes of life?  To what standard of living should alimony be paid?  My opinion is that it should not preserve the standard of living but be a bridge to a basic (e.g. above poverty line) standard of living.
  • Should a spouse have to pay reparation for educational investments made in the former spouse’s career?  Conversely, is it appropriate to require a divorcing spouse to pay for the education of a spouse who deferred education to care for children or provide support to a spouse who was pursuing a degree?  Personally, I think both of these are fair expectations.
  • Should church members be bound (in accordance with temple recommend questions) for egregious alimony settlements when circumstances have changed?  Probably yes, just as we are bound to pay taxes that we don’t agree with.  But a former bishop once made the argument that he obeyed all the laws because he pays his speeding tickets.

Discuss.

 

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[1]  Laurence C. Nolan, Lynn D. Wardle (2005). Fundamental principles of family law – Google Books. Wm. S. Hein Publishing. pp. 703–04.

[2] Report of the American Academy of Matrimonial Lawyers on Considerations when Determining Alimony, Spousal Support or Maintenance Approved by Board of Governors March 9, 2007 (Microsoft Word). American Academy of Matrimonial Lawyers.

[3] Raghavan, Anita (2008-04-01). “Men Receiving Alimony Want A Little Respect”The Wall Street Journal.

[4]  “Alimony/Maintenance”. The American Bar Association.

[5] http://www.divorceinfo.com/bkrcybankruptcy.htm