An editorial in today’s New York Times, Ending the alimony guessing game, by Alexandra Harwin, a 2011 Yale Law School graduate, highlights New York State’s recent enactment of explicit temporary alimony guidelines. Under the formula, alimony is set at 30 percent of the higher-earning spouse’s income, minus 20 percent of the lower-earning spouse’s, as long as the recipient doesn’t end up with more than 40 percent of the couple’s combined income. It also allows judges to adjust those awards up or down under special circumstances.
In demonstrating the uncertain nature of alimony, she notes:
When asked how much alimony a lifelong homemaker married to a doctor deserved, judges in an Ohio survey estimated as little as $5,000 a year and as much as $175,000.
Ms. Harwin further describes how uncertainly in alimony awards imposes significant social costs on unhappy spouses:
The unpredictability of alimony rules imposes several costs. Negotiating a settlement deal is much harder when spouses have no idea what they’ll end up with if they take their chances in court. Litigation drags on and the bills pile up when lawyers and experts have to prove their clients deserve any alimony at all.
All the while, the emotional costs mount as people awaiting divorce continue in unhappy marriages; some stay married indefinitely because they don’t know if divorce will leave them with enough money to make it on their own. That’s particularly troubling in cases of domestic violence: some wives endure years of abuse because they can’t be sure husbands who control the family finances will be required to give them the money they need to live if they leave.
Ms. Harwin concludes that more states should enact alimony guidelines and New York State should enact alimony guidelines for permanent awards.
As someone who has previously blogged on how South Carolina’s alimony awards are akin to a lottery, I applaud New York State’s efforts. Since the Federal government mandated child support guidelines in the early 1990’s, child support awards have become more uniform and child support litigation less contentious. Allowing family court judges almost total discretion in alimony awards, makes results like the Ohio survey–in which the awards range from 1% to 35% of the supporting spouse’s income–almost routine. Coupled with the historically-recent enactment of no fault divorce laws, alimony awards that create that much uncertainty both discourage the formation of marriages (it’s quite a risk to marry someone who can leave without fault and receive 35% of your income) and discourage the dissolution of unhappy marriages (it’s quite a risk to leave a marriage with a $500,000 annual household income if you might only receive alimony of $5,000 a year).
Sheer legislative laziness is the only reason states vest so much discretion over alimony awards to the judiciary. I concur with Ms. Harwin that it’s time to end alimony awards by judicial discretion.