For years I have been telling my clients that the goals and purposes behind spousal support (commonly referred to as "alimony") are changing. It seems that change is gaining momentum. The on-line edition of the Wall Street Journal offers an insightful piece on the spousal support policy shift occurring across the country.
Paul and Theresa Taylor were married for 17 years. He was an
engineer for Boston's public-works department, while she worked in
accounting at a publishing company. They had three children, a weekend
cottage on the bay and a house in the suburbs, on a leafy street called
Cranberry Lane. In 1982, when they got divorced, the split was
amicable. She got the family home; he got the second home. Both agreed
"to waive any right to past, present or future alimony."
But recently, more than two decades after the divorce, Ms. Taylor,
64, told a Massachusetts judge she had no job, retirement savings or
health insurance. Earlier this year, the judge ordered Mr. Taylor, now
68 and remarried, to pay $400 per week to support his ex-wife.
"This is insane," Mr. Taylor says, adding that the payments cut his
after-tax pension by more than one-third. "Someone can just come back
25 years later and say, 'My life went down the toilet, and you're doing
good—so now I want some of your money'?"
The nature of marriage has changed dramatically over the decades.
Women now make up almost half of the American work force. But alimony,
a concept enshrined in ancient law, has remained remarkably constant.
Now, the idea that a husband should continue to support his wife
forever, even after the demise of their marriage—long a bedrock of
divorce law—is being called into question. Pressures are mounting to
change a practice that some see as outdated and unfair.
Several U.S. states are battling to place new limits on alimony and
rewrite decades-old laws. In Pennsylvania, New Jersey and Oklahoma,
lawmakers are pushing for measures like putting time limits on alimony
payments, barring alimony if two divorcing spouses are on equal footing
professionally, and ending or reducing alimony if the recipient commits
a crime or cohabits with another adult in a romantic relationship.
Lobbyists and activists are pressing for similar rules in Ohio,
Florida, Arizona, Georgia and North Carolina.
In Massachusetts a bill backed by a group called "Reform
Massachusetts Alimony Laws Now!" has 72 sponsors and would require a
spouse receiving alimony to become self-sufficient, or attempt to,
after a reasonable time. That would establish alimony as a temporary
payment instead of a permanent entitlement, as is often the case now. A
second bill, in the state Senate, would modify the law less radically
by adding "duration" to the factors judges can consider when setting
alimony payments.
The House bill would end the currently common practice of using the
assets of a second spouse to determine the ability of a person to pay
alimony. Alimony could only be adjusted upward for cost-of-living
increases, and alimony obligations would end upon the retirement of the
payer, though judges would still have the flexibility to take into
account special circumstances.
State alimony laws, many passed in the 1960s and 1970s, were
designed to help nonworking or lesser-earning spouses after divorce.
Many states allow for recipients to receive payments for life.
Proponents say the money compensates some spouses who have sacrificed
careers for families and is particularly vital to low- and
middle-income women. Detractors have long called the laws unfair in an
age when many women work, with people making payments for years that
their former spouses don't really need.
At the core of alimony debate is whether the payments are viewed as
transitional—until the dependent spouse gets back on his or her feet—or
a long-term dividend for sacrifices made during a marriage.
Now this simmering debate is boiling over. As divorced baby boomers
reach retirement age, recession has decimated nest eggs and erased
millions of jobs. The American Academy of Matrimonial Lawyers reported
a "big spike" this year in clients seeking to modify their alimony
arrangements. In a March survey, 42% of the group's divorce attorneys
reported an "unusual" increase in such cases, with 6% reporting a drop.
In Los Angeles, Family Court Judge Marjorie Steinberg also reports a
"dramatic" surge in these requests. She says petitioners include
one-time high earners who've lost their jobs, a group she says she'd
"rarely seen before."
The bill in Massachusetts' House of Representatives has gained the
support of a group called the 2nd Wives Club. Club co-founder Jeanie
Hitner, who is 59 and lives in Marlbourough, Mass., testified to state
legislators last month that she is working a second job—tutoring math
four nights a week—to help her husband make alimony payments to his
first wife.
Ms. Hitner says she wishes she had just stayed his girlfriend. "If I
had known about this before we got married, I never would have married
him," says Ms. Hitner. Her husband, Steve Hitner, is the head of Reform
Massachusetts Alimony Laws Now!, a grass-roots group that consists
mostly of alimony-paying men, and supports the same bill. "I don't
blame her; I never would have put her through this if I had known what
she was going to be in for," Mr. Hitner says.
Opponents of the bill say it may not adequately protect those who
rely on alimony payments. Massachusetts State Sen. Cynthia Stone Creem,
a Democrat and a divorce lawyer who co-chairs the joint judiciary
committee, has called for a commission to study all the alimony
legislation, a move that could delay a vote until next summer. Sen.
Stone Creem filed her own bill, which would modify the state's law
slightly, giving judges greater leeway in setting the duration of
alimony payments.
Many states put formal alimony laws into place in the 1960s and
1970s, amid rising divorce rates and concerns that women earned less
than men. States such as California and Massachusetts passed laws that
included provisions for indefinite alimony. More-conservative Texas, by
comparison, generally limited payments to three years.
Many divorce agreements provide for alimony or spouse-support
payments, which is separate from child-support payments. Americans gave
$9.4 billion to former spouses in 2007, up from $5.6 billion a decade
earlier, according to the Internal Revenue Service. Men accounted for
97% of alimony-payers last year, according to the U.S. Census Bureau,
although the share of women supporting ex-husbands is on the rise.
Critics argue that in the decades since alimony guidelines were set,
the U.S. has changed much: Women made up 46.7% of the work force last
year, up from 41.2% in 1978, according to the Department of Labor.
Others counter that America hasn't changed enough: Women in the
45-to-54-year-old age group earn 75% as much as men the same age.
But the momentum appears to be with those who seek to guard alimony
payers' shrinking resources. Legislation may be gaining traction in
part because powerful citizens and lawmakers, themselves divorced, are
getting a close-up view of what they see as a flawed alimony system,
says retired Judge Robert D. Frank, who handled divorce cases in Tulsa,
Okla.
In April, for example, Palm Beach County Circuit Court Judge David
French prevailed following a 16-year battle to stop or reduce his
alimony payments. A state appeals court ruled that Mr. French should
not be forced to pay $3,400 a month to his ex-wife, who has lived for
nearly 20 years with another man. The judge ordered the ex-wife to pay
Mr. French $151,000, the amount she had received from him since he
filed a previous case in 2005. Ms. French's lawyer did not return a
call seeking comment. Amy Shield, Mr. French's lawyer, said he was
pleased with the decision.
A Florida group has hired a lobbyist to push a bill limiting alimony
payments to three years. Ohio's bar association, meanwhile, is lining
up legislative sponsors for a bill that could shorten alimony
terms—ending support after seven years, for example, following a
marriage that lasted 15. Pennsylvania's Senate is considering a bill
that could cut alimony to recipients who live in a romantic
relationship with another adult.
Last month, Massachusetts representatives heard testimony from
Brenda Caggiano, a 70-year-old retired first-grade teacher who supports
her ex-husband, Robert, a certified public accountant. When the
Caggianos divorced in 2003, they split their assets. He got their home
on Cape Cod. She got their home in a Boston suburb, and paid him the
$57,000 difference in the value of the homes.
Ms. Caggiano earned more at the time, so the court ordered her to
pay $125 in weekly alimony until her death or her former husband's
remarriage. Since Massachusetts is a "no-fault" divorce state, it made
no difference that it was, as both parties acknowledge, Mr. Caggiano
who left home.
Ms. Caggiano says she's living pension-check-to-pension-check and
has had to tap a home-equity line of credit to fix her roof. "It's a
disgrace that this man is taking my money when he's perfectly capable
of supporting himself," she says.
Mr. Caggiano, who is 68, said in an interview he has no mortgage and
that his girlfriend, who works full-time, has moved in. He says the
couple recently traveled to Italy, and that he spent $60,000 to install
hardwood floors, granite countertops and big windows "to get a
beautiful view of the water." He keeps his accounting practice to a few
clients: "I'm not going out there trying to develop new business."
Asked why he should receive alimony, Mr. Caggiano said he sees it as
reimbursement for a time early in their marriage when he paid most
expenses, including the down payments on the two homes that were
divided at the divorce. Ms. Caggiano says she wants a court to modify
her payments but can't afford an attorney.
Another Massachusetts pair, Rudolph and Carneice Pierce, have taken
their battle to the state's Supreme Judicial Court. As soon as next
month, the court is expected to issue its decision, which could have
broad implications for retirement-aged baby boomers.
The Pierces were divorced in 1999 after 32 years of marriage. He was
a partner at a Boston law firm and a former state judge. She had worked
at International Business Machines
Corp. for 27 years. They equally divided $1.4 million in assets, and
the court ordered him to pay her annual alimony of $110,000 until her
remarriage or the death of either.
In March 2008, Mr. Pierce retired from his law firm and cited this
change of circumstance in a request to terminate the alimony. He said
his income had already fallen to about $225,000 in 2007, about half its
level at the time of the divorce. A probate court reduced the annual
alimony obligation to $42,000 but refused to terminate it, arguing that
Mr. Pierce had ample earning power and could find another job, such as
teaching.
Mr. Pierce, now 67, argues that the court was telling him, in
effect, that he couldn't retire. He appealed to the state's supreme
court.
Ms. Pierce, meanwhile, left her $95,000-a-year fund-raiser job last
summer, her lawyer said, after her territory was expanded to require
more travel without additional pay. In briefs filed with the supreme
court, Ms. Pierce said she had been pinched by the downturn and that
her retirement funds were down almost 50%. Her lawyer, David Cherny,
said that while Mr. Pierce's income had also fallen, there was still a
financial disparity between the couple because she devoted more time to
her family than her career during the marriage.
"She had given up a lot to this relationship," Mr. Cherny says,
adding that it would be wrong to change a divorce agreement they'd
already made.
Divorce agreements can get rewritten even decades later, as retired Boston engineer Mr. Taylor has learned.
In 2003, more than two decades after agreeing to end a 17-year
marriage without alimony, Ms. Taylor was diagnosed with melanoma. She
lost her publishing job when her employer of 38 years filed for
bankruptcy protection. She'd recently surrendered her home to the bank
and filed for personal bankruptcy to resolve $27,000 in medical and
credit-card debts.
Mr. Taylor, meanwhile, had retired after 33 years working for the city of Boston, with an annual pension of $56,000.
In a September 2007 complaint filed in a state probate court, Ms.
Taylor cited "changes in circumstances" and sued her former husband for
support payments. She wrote that Mr. Taylor owned homes in Florida and
Cape Cod and traveled to Europe.
In court, Mr. Taylor said he was sensitive to his former wife's
plight, but that too much time had passed and that their divorce was
final 25 years ago. His second wife, he said, had inherited the Cape
Cod house from her father. Their trips were financed through home-swaps
and reduced-fare tickets from his stepson, an airline employee.
In June 2008, a probate judge ordered Mr. Taylor to pay temporary
alimony based on Ms. Taylor's "dire immediate need" and his "ability to
pay." In its January final order, the court, citing Mr. Taylor's income
from his pension, told Mr. Taylor to pay his ex-wife $400 per week for
five years. The payment will eventually fall to about $250 a week for
the rest of her life.
Virginia Connelly, Ms. Taylor's lawyer, says she can see how Mr.
Taylor could find the situation unfair. But under Massachusetts law,
she said, judges who want to keep a person off public services can turn
to the ex-spouse.
In May, to seek relief from legal and other bills, Mr. Taylor
declared personal bankruptcy. He is still responsible for supporting
his ex-wife. "If she loses all her money, so what? She can just take me
back to court," he says. "Somewhere along the line I should have peace
of mind."
