Alimony for the less ambitious spouse

Posted Friday, June 7th, 2019 by Gregory Forman
Filed under Alimony/Spousal Support, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public

On June 6, 2019, I argued an appeal in the Court of Appeals that involved a novel issue that I expect to become increasingly common. The family court ordered my client, the Appellant/Wife (I was not the trial attorney), to pay significant permanent periodic alimony to her now Ex-Husband. Unhappy with the both amount and the permanency of the alimony award, she appealed (she also appealed other issues irrelevant to this blog).

In addition to making arguments about the family court miscalculating her income or overstating Husband’s need, we raised a novel issue: arguing her Husband, despite having an income approximately one-quarter of Wife’s, was not a “supported spouse.” To justify this result we noted that the family court explicitly found Wife was the primary caretaker of the parties’ three children and that the family court made no finding that Husband handled more of the household chores than Wife did. If one spouse is simply less ambitious or hard working does that make that spouse “supported”?

The traditional rationale for alimony was that the husband worked while the wife stayed home. Not only would the wife do almost all of the child rearing and household chores, she would also primarily handle the “emotional labor” of the marriage (although this term would not have been used at the time). Even if society had been as open to women in the labor force as it was to men, the fact that women deferred career development to run the household justified alimony when the marriage ended.

As the labor force became more accepting of women, and as women began entering higher paying and more prestigious positions, the unequal division of household labor lessened but still persisted–begetting the concept of the “second shift.” While more women worked, few earned as much as their husbands. Given wives significant second shift work during the marriage, the historic justifications for alimony still existed, even if the need for alimony was often reduced.

But in the past few years, I’ve encountered a few cases in which wives not only substantially outearn their husbands, but also handle the majority of the child care, household chores, and emotional labor. Until a few years ago, I almost never saw this situation: in the rare circumstances in which wives were outearning their husbands, their husbands were typically deferring career goals (and handling the majority of child care) to support their wives’ careers. Given current demographic trends, I expect this cohort to increase in size in the coming years.

Such wives are nothing like the hard charging husbands I encountered a generation ago. Such husbands almost uniformly directed their ambitions towards career and let their wives run the household. This small but increasing cohort of wives are simply more involved with their children and more ambitious in their career. My client on this appeal was awake before the roosters so she could go running before she woke up the children to get them ready for and to school and she literally burned the midnight oil so she could finish her work after the children were asleep. In such a situation, is a husband a “supported spouse” or is he simply less ambitious? And if he’s simply less ambitious, is there any justification for significant alimony or permanent alimony?

Roy Stuckey’s “Marital Litigation in South Carolina” lists five justifications for alimony. One of them is marital misconduct but the other four all involve compensation for the caregiving and reduction in career ambition that traditional homemaker services entails:

Compensation for the loss in standard of living

Compensation for loss of earnings arising from care of children

Compensation for loss of earnings arising from care of third parties

Compensation for loss due to investment in other spouse’s earning capacity

Absent these situations what is the justification for significant permanent alimony? Is alimony permanent welfare for unambitious spouses? I don’t think that was our legislature’s intention.

As noted above, it’s a novel issue on how to address alimony where one spouse (and in my experience to date that spouse is always the wife) was both more ambitious in career goals and more active in running the household. It’s an issue I expect South Carolina’s Supreme Court to address within a few years.

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