By Armin U. Kuder
“How much alimony am I entitled to?” This used to be a question only asked by economically dependent women. It is now being asked by men who do not earn as much as their wives, and same-sex partners. Whoever the questioner, we family law practitioners invariably give a carefully crafted, limited, response. Often, something like, “it depends.” Traditionally, alimony was supposed to permit the economically dependent spouse “to live in the manner to which the family had been accustomed.” In actuality, two households could not live without change on the income formerly supporting one household. Numerous studies showed that women, particularly those with children, quickly ended up far below either their former lifestyle or the paying husband’s lifestyle after divorce.
One of the things which resulted from the research on family incomes after divorce was the creation of a federal requirement that all states taking federal aid for dependent children enact and enforce guidelines for the payment and collection of child support. Too many children were living in single-parent homes below the poverty level, with able, non-custodial parents living under better circumstances. It did not take long for family lawyers to see how this federal requirement changed the playing field in child support cases. After the States established guidelines, rather than lengthy trials over what is appropriate, in the vast majority of cases, child support was settled by reference to the State’s guideline. If there were going to be battles, they came either because the family’s substantial income was above the state’s guideline, or there were genuine issues as to how much income either parent had. This simplified many cases.
There have been no comparable guidelines with respect to spousal support or alimony. The question has remained quite debatable. Studies of court awards of alimony have shown what a wide disparity there can be from court-to-court and case-to-case. There have been some non-governmental efforts to come up with rules for determining appropriate alimony. Foremost among them are guidelines issued by the American Academy of Matrimonial Lawyers; and those published by the Bruce A. Kaufman Center for Family Law of the Women’s Law Center of Maryland, known as the Kaufman Guidelines. The Maryland Court of Appeals has said that it is not wrong for a judge to look at such guidelines, provided he or she does not base the decision only on them; a step toward giving the legal profession some more specific standards, but not a giant one. In Virginia, Fairfax County has guidelines for temporary alimony after a suit has begun, but not for final awards. The field remains wide open.
One state, Massachusetts, does have a law applying to alimony which is similar in its purpose to that of the child support laws enacted in all states; similar in the sense that it attempts to define alimony and set forth some standards for payment of alimony. It resolves many questions that are subject to debate between lawyers and in the family and divorce courts, including how to treat the tax aspects of alimony, capital gains, financial transactions between the couple before marriage, employment and employability, the duration of the alimony and whether it should be limited in time or open-ended. Under the law of Massachusetts, alimony is generally not to exceed 30 to 35 percent of the difference between the parties’ gross incomes, absent specific findings as the need to vary from that.
The Massachusetts approach is something less than the specific guideline amounts that have reduced arguments about child support. Still, enactment of such standards would tend to limit or simplify divorce and spousal support trials in jurisdictions without such standards. Until that happens, persons seeking a divorce in the Commonwealth of Virginia, the State of Maryland or the District of Columbia need to become familiar with a large number of cases which deal with the various factors that will be taken into account by a court, and they still will end up with, “it depends.”