The Lawletter Vol 39 No 12
No field of family law is as diverse or controversial as that of support payments made by one spouse for the support of the other after a marriage has ended in divorce. The law in this area is so divided that the states cannot even agree on the name of the payment. Some states use the traditional name, "alimony." Other states follow the lead of the Uniform Marriage and Divorce Act and call the payment "maintenance." Still other states call the payment "spousal support."
Disagreement over the label is matched by disagreement over the purpose of the payments. Most states recognize several different types of spousal support. Traditional support is awarded after a long-term marriage so that the less wealthy spouse does not suffer a drop in living standard. Rehabilitative support is awarded when it will help the less wealthy spouse to develop a higher earning capacity. It differs subtly from time-limited support, which is awarded when the marriage was not long enough to justify a traditional support award. Reimbursement support is awarded when one spouse made contributions during the marriage to the other's earning capacity, such as by supporting a spouse through graduate or professional school. Some states even recognize transitional support to bridge the gaps between other forms of support.
Regardless of what model of support is used, the traditional approach is to set forth a list of relevant factors that the court is required to consider, but to leave the balancing of these factors to the trial judge. The lists of factors are broad, so that the law has great flexibility to adapt to many different types of marriage. But this flexibility is not without costs: It makes awards very inconsistent from case to case, so that payors in similar circumstances can end up with very different obligations. Translating factors into awards requires considerable effort on the part of trial judges. Most importantly, the result is very difficult to predict, which can make support cases very difficult to settle out of court.
The modern trend is to reduce the amount of discretion given to trial judges in spousal support cases. A significant number of states are experimenting with spousal support guidelines. Many of these guidelines apply only when temporary support is being set during the pendency of the divorce case, but a growing number apply to permanent awards also. Few are presumptive in the same sense as child support guidelines are; most are only one factor that the court can consider in setting the award. But even one-factor guidelines make support awards more consistent from case to case and encourage out-of-court settlement of support issues.
Even when guidelines are not adopted, some appellate courts are doing what they can to give more structure to the law of spousal support. A good example is a recent decision from the Iowa Supreme Court, In re Marriage of Gust, No. 13-0356, 2015 WL 200056 (Iowa Jan. 16, 2015) (not yet released for publication). Gust extensively reviewed modern case law and academic literature on spousal support awards, noting the increased use of guidelines. Iowa's legislature has not adopted guidelines, and the court declined to adopt guidelines judicially. But it set forth some basic principles, in more detail than before, to guide the courts in future cases.
"First, our caselaw demonstrates that duration of the marriage is an important factor for an award of traditional spousal support. Traditional spousal support is often used in long-term marriages where life patterns have been largely set and 'the earning potential of both spouses can be predicted with some reliability.'" Id. at *7 (quoting In re Marriage of Francis, 442 N.W.2d 59, 62-63 (Iowa 1989)). Modern alimony reform is not so much a movement to change the support awarded after traditional marriages, as an attempt to recognize new forms of support for use after types of marriages that were much less common a generation ago. When the parties have had a traditional longer marriage, in which one spouse mostly did not work, traditional support is often awarded.
"Second, the cases emphasize that in marriages of relatively long duration, '[t]he imposition and length of an award of traditional alimony is primarily predicated on need and ability.'" Gust, 2015 WL 200056, at *8 (quoting In re Marriage of Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App. 1998)). When making a traditional support award, the court generally begins with the recipient's expenses at the marital standard of living, and then subtracts the recipient's earning capacity. The difference is the recipient's need, which must be met within the limits of the other spouse's ability to pay.
The court made a point that in measuring earning capacity, for both payors and recipients, "the parties may use vocational and other experts to assist the court in making the determination." Id. Increased use of vocational experts has been one of the most important changes in the law of spousal support over the past few decades.
One particular recurring issue with traditional alimony awards is the effect of the payor's retirement. Gust declined to adopt a fixed rule on this point. The immediate common-sense result is that alimony should drop substantially upon retirement, but this assumes that the payor is retiring at normal retirement age and that the recipient has reasonable retirement benefits available, either through division of marital benefits or through the recipient's own employment. When the payor is retiring early, or the recipient lacks retirement benefits, the courts need flexibility to reach an equitable result.
Three justices dissented in Gust, arguing that support should normally terminate at normal Social Security retirement age or a spouse's actual retirement, whichever is later.
Interestingly, while the court did not adopt any guidelines, it did note in a footnote that the trial court's support award of $2,000 per month was consistent with the spousal support guidelines issued by the American Academy of Matrimonial Lawyers ("AAML"). Id. at *13 n.2. That guideline is 30% of the income of the payor, minus 20% of the income of the recipient. AAML Commission Recommendations on Spousal Support, reprinted in Mary Kay Kisthardt, Re-Thinking Alimony: The AAML's Considerations for Calculating Alimony, Spousal Support or Maintenance, 21 J. Am. Acad. Matrim. Law. 61, 80 (2008). "In this case, application of the AAML guideline formula would produce a presumptive unlimited support payment of $23,100 per year," Gust, 2015 WL 200056, at *17 n.2, which was very close to the trial court's award.
In other states that do not yet have guidelines, it may be possible to likewise use the AAML guideline as one very rough measure to determine the amount of support that a court might award.