If you have questions about divorce, legal separation, alimony pendente lite, or alimony in Connecticut, please feel free to call the experienced divorce attorneys at Maya Murphy, P.C. in Westport today at 203-221-3100 or email Joseph C. Maya, Esq. at JMaya@Mayalaw.com.

Alimony is, and may always be, a concept in flux, ever-changing to meet the concerns of public policy. The problem with alimony today is that there is no intuitive sense of its purpose in the twenty-first century.

Even the name mirrors its changeable nature: alimony, spousal support, maintenance. Some time ago, the ordinary person did understand what alimony was and why it was required. Divorce was based on fault, women could not support themselves; thus, when the marriage broke down because of the husband’s fault, the wife needed lifelong support or she would face starvation.

Perhaps this understanding of alimony still exists in cases where divorce occurs after a traditional, long-term marriage in which the wife did not work. But many marriages today are not long-term, and very few women are entirely removed from the workforce. By and large, the marriages of our grandfathers and grandmothers do not exist today.

The economic, social, and cultural factors that have changed our views of marriage have shattered our once cohesive understanding of alimony. Some courts and commentators, and even a few legislatures, have reasoned that since women now work, alimony should be curtailed drastically or even abolished. This trend was most recently exhibited in Massachusetts, where on September 26, 2011, the governor signed legislation, ending alimony when the payor retires, and generally limiting alimony to a number of years based on the length of the marriage.

Most states have not yet taken such a drastic step: alimony continues to stumble along, based on habit and precedent as much as logic, as part of the modern divorce case. We have difficulty explaining its precise purpose; yet at some level, we are reluctant to get rid of it entirely. In short, the law of alimony is in the midst of an identity crisis. It was well understood a generation ago; however, today it often is seen as a relic of earlier times. Our reluctance to abolish alimony entirely shows that at some level, in some cases, it must serve a very important purpose.

The Uniform Marriage and Divorce Act

The variance can be explained as a result of a number of distinct phenomena. First was the rise of no-fault divorce. The Uniform Marriage and Divorce Act (UMDA) embraced no-fault divorce, allowing courts to grant a divorce even in the absence of fault, where a court found that the marriage was irretrievably broken. UMDA § 305. Moreover, the drafters of the UMDA, including some of the brightest minds in family law, were determined to recognize the growing employability of women. But by rejecting traditional notions of fault and economic dependency, the UMDA knocked the foundation from under the traditional law of alimony.

The alimony provision of the UMDA provided that alimony could be awarded only if the party seeking support “lacks sufficient property to provide for his reasonable needs,” and “is unable to support himself through appropriate employment.” UMDA § 308. By stressing that property division is the primary method of support, this language suggests that support is not necessary where a reasonable amount of property is awarded to each spouse.

Moreover, the second prong of this test is vague on the most important point: the definition of “reasonable needs.” One can reach very different figures for a spouse’s “needs,” depending on whether those needs are measured at a subsistence level, a level the court believes to be objectively reasonable, or the actual subjective standard-of-living from the marriage.

The official comment (UMDA § 308) restated the second requirement as whether the spouse seeking support “is unable to secure employment appropriate to his skills and interests,” very strongly suggesting that when a spouse can secure such employment, that spouse’s “reasonable needs” will necessarily be met. The overall effect of the UMDA’s support provision was to suggest that self-support is the norm; that working women should not need support; and that as greater numbers of women work, support awards should become small in number, amount, and duration.

To reinforce the distinctions between traditional alimony and this new type of support, the drafters of the UMDA gave it an entirely different name: maintenance. By emphasizing employability and failing to refer to the actual marital standard-of-living as a factor in determining eligibility for support, the drafters of the UMDA appeared to reject the common law rule that the measure of support is the marital standard-of-living. Although only a few states enacted the entire act, a greater number adopted versions of the UMDA’s maintenance provision.

Rehabilitative Alimony and the Second Wave

Second, alimony legislation since the early 1990s has been mainly a response to widespread criticism of support awards during the previous two decades, especially after longer marriages. This legislation constitutes the “second wave” of spousal support reform. See Brett R. Turner, Rehabilitative Alimony Reconsidered: The “Second Wave” of Spousal Support Reform, 10 DIV. LITIG. 185, 205 (1998) (concluding that 12 states adopted the UMDA maintenance provision directly, and another three cited it in adopting similar rules by case law). By expanding the list of factors a court must consider in awarding support, and by requiring the court to make findings explaining the reasoning behind its award, the new legislation encourages courts to base their support awards more on the facts of the case and less on broad assumptions.

Nowhere is this change more evident than in the increasing use of vocational experts to measure earning capacity. This change, more than any other, lies at the heart of second-wave reform. Traditional alimony law was wrong to assume that women were close to unemployable; but first-wave reform law was equally wrong to assume that the theoretically unlimited employability of women translated into timely and sufficient employment of any specific former wife. The employability of any spouse, either husband or wife, is a question of fact and not law, and a question upon which experts can speak with much more authority than legislators or judges.

By basing assessments of employability on evidentiary facts and expert testimony, the courts can avoid the broad, justified assumptions in both directions that were present in former case law. The vocational expert plays the same role in the law of spousal support as the valuation expert plays in the law of property division.

Common Law Notions Persist

At common law, alimony was paid only by guilty husbands to innocent wives. It was thus almost a form of damages: the financial penalty the law imposed upon husbands as a result of their wrongful conduct in breaching the permanency clause of the marriage contract. The amount of the remedy—the amount needed to attain the marital standard-of-living—was roughly equivalent to the financial harm inflicted upon the wife by the husband’s wrongful conduct, another rule strongly reminiscent of contract or even tort law. This view remains in most states: a spouse guilty of marital misconduct cannot obtain alimony. Only extreme hardship, which would result in the recipient spouse becoming a public charge, can overcome this notion that the recipient spouse must be “innocent,” in effect, free of comparative fault as in tort law.

For a free consultation, please do not hesitate to call the experienced family law and divorce attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100. We may also be reached for inquiries by email at JMaya@mayalaw.com.

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Source- http://www.americanbar.org/publications/gpsolo_ereport/2012/april_2012/current_trends_alimony_law.html