Why do we still have alimony?

February 2, 2010 3:43 PM

I'm not getting divorced (and am not even married) but am interested in how alimony works in modern law and society. I'm close with people in relationship counseling, women's studies, etc., so feel up-to-date on where society is regarding marriage, gender equality, etc., but was surprised to find out that we still have alimony, especially long-term, in some cases of divorce. I'm looking for generally informative articles or other info about why this is the case. If you know of any good journalism or even opinion pieces on this subject, for or against or neither, please share. I did read the Wikipedia article, but am looking for more in-depth exploration of some of these issues (for a lay audience).
posted by dervish to Society & Culture (9 answers total)

I've always found that the best and most rational case for alimony even in modern society is about compensation for lost opportunity.

If a couple decides that one partner is going to suspend their career (or perhaps even drop out of school and never pursue one) to raise/support children, or for any other reason live off the income of the other... then that person has given up a great deal of possible future income, and alimony can make up for that lost opportunity.

There don't even need to be children involved. It's a decision made as a couple that negatively impacts one party if/when the coupleship dissolves.
posted by rokusan at 3:49 PM on February 2, 2010 [2 favorites]

Rokusan's explanation is in line with the experience of a friend who recently divorced. His wife was unemployed at the time, and was awarded alimony based on the difference between her estimated potential income (at the time) and his actual income. Seems like it's just a way to smooth the transition for the lower-income party. He had the option of paying periodically for a year or two (don't remember which) or a smaller lump sum up front. He chose the latter.
posted by jon1270 at 4:02 PM on February 2, 2010 [1 favorite]

re gender equality: both women and men can be required to pay alimony, so gender differences in terms of who's paying are probably more due to who happened to be the breadwinner, and who has the kids most of the time. So, if anything, perhaps the alimony system is indeed modern and progressive; it's just the breadwinner/childcare status that still has some disproportionate gender balance issues, which then end up manifesting themselves via alimony trends.

Here's an ok MSNBC article about men getting alimony: When Ex-husbands Get Alimony.
posted by sentient at 4:09 PM on February 2, 2010

There is a lot of scholarly legal literature on this topic, but no well informed journalism I can think of. I'd suggest talking to a family law lawyer with a scholarly bent, or a law professor who teaches on family law, to get a good sense of current views in the field. FYI, this payment is now called "maintenance," not alimony, in many states, including mine.

I'd add that I see a lot of cases that involve maintenance. In my state, these are the factors the court looks at under the relevant statute, RCW 26.09.090:

a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;

(c) The standard of living established during the marriage or domestic partnership;

(d) The duration of the marriage or domestic partnership;

(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and

(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

Also, again just FYI, maintenance has one distinct advantage for some couples in dissolution proceedings -- the payments are tax deductible to the ex spouse that pays.
posted by bearwife at 4:43 PM on February 2, 2010

Mod note: few comments removed - this very very badly needs to not become a discussion about people's fucked up divorce settlements if they're not relevant to the question.
posted by jessamyn (staff) at 5:00 PM on February 2, 2010 [1 favorite]

And now back to the original question:

This article has a pretty good historical explanation, although it's somewhat dated. The underlying history and case law hasn't changed too terribly much in the past 16 years since it was written. "Alimony," availability of same, amount, and how it's determined varies widely from state to state. As a practicing family law attorney, I can tell you that the court's decision to order alimony, as well as the duration and amount is pretty much a crap-shoot in any given case. On the other hand, a federal law from about 20 years ago requires states to calculate child support pursuant to specific financial guidelines and to update them every 4 years or so. Child support is therefore a somewhat straightforward calculation (literally, a math exercise) in most cases when both parents are wage earners (as opposed to self-employed, farmers, etc..). There is no corresponding mandated calculation of alimony.
posted by webhund at 5:04 PM on February 2, 2010

Alimony and child support are two different things... kids have nothing to do with alimony, and child support has nothing to do with the custodial parent.

The concept of alimony or maintenance may go back to the concept of the at-fault divorce. I have no idea if it still does. But it would seem to make some bit of sense- if the breadwinner has done something to make him or her at-fault, then the other party would seem to be more legally entitled to maintenance, since the bad behavior of the party of the first part is the reason the party of the second part can't maintain the lifestyle to which they are accustomed. Seems a lot less fair if there is no fault in the dissolution of the marriage. Seems a little (lot) paternalistic to presume that the non-breadwinner was incapable of making informed decisions as to their career and future earnings. (And cause for "fault" if it can be shown that the non-breadwinner DID decide to forgo career/education for the sake of the marriage or family.)
posted by gjc at 6:22 PM on February 2, 2010

When married most peole make finacial/personal/career/residence/schooling decisions as part of a team. They are willing to "take one for the team" assuming they will partake in the payoff. Spousal support is designed to help them transition to self-support as though they had not interrupted their career path for the marriage.

You may find it interestng to compare other countries view. In Canada we have spousal support, applicable in legal and common-law marriages regardless of the genders involved. This page touches on why spousal support has increased in Canada. To really put you to sleep, the federal guidelnes from 2008 will help. They are not law but are pretty closely followed in most cases.
posted by saucysault at 6:28 PM on February 2, 2010

For my Family Law class last semester, I used the pretty good supplement Understanding Family Law. It's very readable.
posted by Sticherbeast at 7:37 PM on February 2, 2010