The Future of Maintenance in Divorce

By Attorney Gregg Herman
March 30, 2012

s maintenance still relevant in the 21st Century?

A recent article in The New York Times raises that issue, discussed how various states are considering and some enacting laws designed to make maintenance or alimony more equitable.

The article quotes a Florida physician who said he was ordered to pay his former wife 89 percent of his income.  His answer to my initial question would likely be a vehement “No.”

Now, I have seen some wide-reaching exercises of judicial discretion over the years.  But if a judge actually made such an order, and there are no compelling circumstances to merit it, I want that judge the next time I represent a payee!

According to the article, “Because laws vary greatly from state to state and grant judges broad discretion with few guidelines, alimony judgments diverge wildly, sometimes within the same jurisdiction.”

This is certainly true in Wisconsin, where maintenance is within the “sound discretion” of the trial court, constricted only by the requirement to consider broad factors, ending with “any other factor” the court deems appropriate to consider.

These factors are so broad, in fact, that the legislature might as well repeal all the factors, other than “any factor which the court deems appropriate.”

The difficulty, however, in establishing guidelines is demonstrated by an attempt by a Wisconsin legislative special committee to do so last year.  After lengthy study of the issue and various proposals, the result was a benign bill that focused on the termination of maintenance when one party dies, and required notices regarding maintenance terminations in court orders.  Notably absent was guidance to trial courts.  It didn’t become law.

Perhaps the reason guidance was missing from the bill was the wide disparity of proposals considered by the commission, ranging from abolishing spousal support altogether, to continuing to allow unlimited (sometimes mischaracterized, even by the courts, as “permanent”) maintenance.

An Emotional Issue

From the payor’s perspective, he or she works hard to create income.  It’s bad enough to have to share it with the taxing authorities, and even worse having to share it for child support.  But to share it with an ex-spouse?  As a Texas divorce lawyer (twice divorced himself) once told me, “It’s like feeding oats to a dead horse.”

Of course, the payee has a quite different perspective.  The law, quite properly, no longer values child care as less valuable than earning a paycheck.  In addition, since most Americans spend every penny earned (and sometimes more), there’s typically no property division available to compensate the spouse who provided the non-economic services.  In fact, in most cases, the enhanced income of the payor is the only “asset” to be divided – although there may be plenty of debt to be divvied up, too.

The emotions of the payor are increased if he or she does not want the divorce and believes that he did not commit “fault” as traditionally defined to cause the marriage’s failure.  As one potential payor lamented: “I was a faithful and loving husband and a good father.  I did nothing wrong.  I love my wife and don’t want a divorce.  Yet, not only does she have the right to terminate this marriage, but also I will have to pay her, perhaps for an extended period of time?  Tell me why that is fair.”

The answer, of course, is, fairness has nothing to do with it.

Wisconsin got out of the fairness game, at least in this context, when it adopted no-fault divorce more than 40 years ago.  Virtually no one wants to go back to fault.  But, that’s another article.  For now, let’s just accept that what’s fair to one party might be quite unfair to the other.

Guidelines Might Help

When I first started in this field more than 25 years ago, child support “guidelines” were merely one factor for the court to consider.  The result was increased litigation, as the playing field was far more open.

Now that we have guidelines, most child support cases settle, as the likely outcome of litigation is known to both parties.  However – and this is key – the court always has discretion to find the guidelines unfair in an individual case.

It’s that back door – the court’s discretion to deviate in an unusual case – that must be a critical component of any future maintenance guidelines.

For example, among the proposals considered by the Wisconsin legislative committee, and in the laws adopted by certain states, is a “tie-in” between the length of the marriage and the duration of support.  There’s a general, unspoken rule of thumb that indefinite maintenance is available for marriages lasting more than 20 years.

Yet, other factors, including the ages and health of the parties, should be considered.  For example, few would think that someone who a healthy person who marries at age 18 and divorces after 20 years should be supported for the rest of his or her life, starting at age 38.  However, indefinite support might be appropriate for a 58 year old with significant health issues that prevent him or her from working, even though that person may have been married for only 18 years.

Human dynamics are far too complicated to handcuff a court, no matter how well thought-out and well-intentioned guidelines may be.  The variables are too great for any logarithm to be fair in every case.

Getting back to the question that I began with, the answer, at least to my way of thinking, is: Yes, there is still clearly a place for maintenance in American society, where a stream of income may be the only financial asset after many years of marriage.

Moreover, certain generalities are apparent.  The length of a marriage, combined with consideration for the age and health of the parties, can be placed into an equation that would be within the range of fairness for the vast majority of cases.  By doing so, lawyers would have an objective measuring stick with which to guide their clients toward settlement, rather than the subjectivity of the individual proclivities of the judge randomly assigned to the case.

As long as there is room for deviation where the individual facts of a particular case do not fit the pattern, allowing the court to individualize the result, guidelines are likely to do more good than harm.

This article originally appeared in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.