REHABILITATIVE ALIMONY RECONSIDERED: THE "SECOND WAVE" OF SPOUSAL SUPPORT REFORM
© 1998 National Legal Research Group, Inc.
Thirty years ago when most domestic practitioners in the United States thought of spousal support, they envisioned an award of permanent monthly payments until the death or remarriage of the recipient. Since most support recipients were older women, and since women mostly did not work, these permanent support awards were the only obstacle standing between the recipient and poverty.
Today, when domestic practitioners in most states think of spousal support, they envision an award of monthly payments for a specific term of years. In a world where support recipients are often in their 30s or 40s, and where many have at least some job experience, spousal support is no longer essential to the financial welfare of the dependent spouse. Instead, if given sufficient funds to obtain training and employment, a substantial number of dependent spouses can support themselves at a reasonable standard of living. Fundamental changes in our economy and in our society have made women more employable, and have limited permanent support awards to a shrinking number of cases involving older, unemployable dependent spouses.
In a substantial majority of states, these changes occurred 15 to 30 years ago. The changing definition of spousal support was noted and remarked upon at the time; legislatures and appellate courts made appropriate modifications in statutes and case law. With the courts now having over a decade of experience making support awards under the new set of rules, time-limited support has become an established institution.
In a significant minority of states, however, support reform did not come so quickly or so easily. In these states, the tradition of permanent spousal support died hard. The courts were reluctant to award such support without legislative sanction, and there was substantial opposition to attempts at statutory reform. As of the writing of this article, that opposition has been overcome in every jurisdiction except one (the District of Columbia). To overcome that opposition, however, supporters of reform were forced to think about time-limited awards and to set forth the rationale behind their proposed reforms in the clearest manner possible.
The legislation which resulted from these reform efforts differs materially from the type of legislation enacted in the majority of states which recognized time-limited awards 10 to 15 years earlier. Because of these differences, rehabilitative spousal support statutes can generally be divided into two classes: the "first wave" of statutes enacted between 1965 and 1985, and the "second wave" of statutes adopted after 1985.
The purpose of this article is to explore the similarities and differences between the first and second waves of spousal support reform. We will begin by considering differences in the manner of enactment. We will then consider the differences in substantive content. Finally, for readers in states where time-limited support is a new concept, we will discuss briefly the types of cases in which courts tend to make rehabilitative support awards.
II. A BRIEF HISTORY OF DIVORCE REFORM
There are five major issues which the court must consider when it decides a divorce case: grounds for divorce, division of property, child support, spousal support, and custody. Except for the abolition of maternal preference, the law of child custody has remained essentially unchanged throughout the 20th century. In all four other areas, the domestic relations law of today differs greatly from the law which applied to our parents and grandparents.
Grounds for Divorce. Grounds for divorce were once exclusively based upon fault; today, it is possible in every state to obtain a divorce on no-fault grounds. The "covenant marriage" concept is something of a backlash, but even covenant marriage applies only to parties who affirmatively choose it. Modern law has abandoned the notion that the state can create a successful marriage by forcing the parties to live together.
Property Division. Before 1970, in approximately one-half of all jurisdictions, the court lacked subject- matter jurisdiction to award to one spouse property titled in the name of the other. In the remaining jurisdictions, the court had this power, but it was used only as a discretionary remedy to avoid undue hardship. Only in the eight original community property states was property division viewed as a legal right, and even in those states major marital assets, such as retirement benefits, were treated as separate property. See generally Brett R. Turner, Equitable Distribution of Property 1.02 (2d ed. 1994 & Supp. 1998).
By 1982, every state had adopted by statute or case law a system for division of property upon divorce. The important point about property division reform was not that the court had power to divide property as noted above, it had that authority before 1970 in many jurisdictions but rather the purpose of property division. Where property division was once seen as an extraordinary remedy, today it is seen as a legal right, a mandatory procedure which the court must follow in each and every divorce case. Id.
While there is uniform agreement that property division is now a legal right, there is substantial disagreement on exactly how property should be divided. Three major division systems are presently in force. First, seven of the eight original community property states continue to follow the traditional community property system. That system has been updated to define retirement benefits and other intangible assets as community property, but it otherwise continues unchanged. See generally id. 2.05. Second, a substantial majority of the remaining states follow the dual-classification model of property division. Under this model, the court must divide all of the parties' assets into two categories: marital property and separate property. Marital property is divided equitably; separate property is divided according to legal title. The dual-classification system bears obvious similarities to community property, but tends to be more flexible because it applies only to division upon divorce, and it is not used to govern division upon death or ownership during the marriage. See generally id. 2.08. Finally, a distinct minority of jurisdictions follows the all-property model of property division. Under this model, the court divides equitably all of the property owned by the parties. The trial judge has considerable flexibility under this system, but the results reached by individual trial judges differ greatly. As a result, the law is inconsistent, and negotiated settlements are harder to reach. See generally id. 2.07.
Child Support. Before 1988, the amount of child support depended upon the trial court's discretion. In that year, the federal government effectively required all states to enact presumptive guidelines to limit the discretion of the trial court and to make support awards more consistent. Within a few years, all 50 states complied with the federal mandate. See generally Laura W. Morgan, Child Support Guide lines: Interpretation and Application (Aspen Law & Business 1996).
Spousal Support. As noted above, spousal support was once viewed as an automatic lifelong entitlement. In many states, the trial court lacked the authority to award support for a limited term of years. When such authority did exist, it was used only after very short marriages. Today, all courts have the authority to award limited-term support, and such support is applied to any spouse who is realistically capable of increasing his or her earnings.
There has also been a landmark change in the role of fault. Before 1970, alimony was often seen as a device for punishment. Guilty husbands were burdened with lifelong obligations; guilty wives were denied any support at all. Fault remains a factor in some states, but the trend is strongly toward viewing spousal support as compensation for existing financial needs.
Only in the field of spousal support have the changes in the law been accompanied by a change in nomenclature. The term "alimony" has become associated with overtones of lifelong support based upon fault, and many states now use "maintenance" or "spousal support" to denominate an award made under the new rules.
Timing. On each of the above issues, former law remained essentially intact as of 1960. Reform on grounds for divorce began in the 1960s, but as of 1970 former law still prevailed on the financial issues. A wave of reform then swept the country, leaving property division reform essentially complete by 1982. Spousal support reform took longer to complete, but was substantially complete in most states by the mid-1980s.
How did such substantial changes occur over such a short period of time without the enactment (except in child support) of mandatory federal legislation? As discussed above, the reforms were fundamentally a response to broad changes in our society and economy, and particularly to the general movement of women from the home into the work place. These changes were well under way before 1970, but conservative, male-dominated state legislatures and appellate courts refused to recognize them. Thus, "it was accurate to say that American divorce law had exhibited extraordinary conservatism in the face of extensive social changes." Homer H. Clark Jr., The Law of Domestic Relations in the United States 13.1 at 699 (2d ed. 1987). Once the pressures of social and economic changes reached a high level, however, rapid change resulted. An analogy can be made to a stuck door, which resists movement until concentrated force is applied, and then swings open quickly. Likewise, the quick enactment of divorce reform was a delayed response to pressures which had been building for many years previously.
While pressure toward divorce reform had been building for years, the immediate cause of the reform revolution was the release in 1970 of the Uniform Marriage and Divorce Act (UMDA). The drafters of this Act made a deliberate attempt to write a statute which responded to economic and social changes. In particular, the UMDA included a broad property division provision and a relatively narrow spousal support provision. The UMDA was not enacted as a whole by more than a few states, as many states were reluctant to adopt any Uniform Act on such a sensitive local question as domestic relations law. The Act influenced the law of many states in which it was adopted, however, and, most importantly, it drew attention to the issue of divorce reform.
A table attached to this article lists the year in which each individual state adopted the property division and spousal support reforms set forth above. The same information is also set forth in graphic form, showing in a particularly dramatic form the influence of the UMDA in the timing of the reforms.
The information set forth in the table can be broken down in several other ways which may be of interest to the reader. Charts following the graph show the breakdown between dual-classification equitable distribution, all-property equitable distribution and community property states; the percentage of states which adopted property division and spousal support reforms by statute, as opposed to court decisions; and the degree to which the adoption of support reforms was tangibly influenced by the UMDA.
III. SPOUSAL SUPPORT REFORM: WHY A SECOND WAVE?
The distinction between the first and second waves of spousal support reform is evident from the graph which accompanies this article. A substantial majority of states recognized limited-term spousal support between 1970 and 1985. Between 1985 and 1993, the law did not change; the spousal support line on the graph is flat. Beginning in 1994, the spousal support line jumps up, ending almost as high as the property division line. This jump is the second wave of spousal support reform.
Why did spousal support reform take place in two waves instead of just one? One clue comes from the identity of the second-wave states:
All five states are located in the south and can generally be described as politically conservative. A general philosophical reluctance to change the law therefore explains partly why these states waited so long to enact spousal support reform.
1995 Mississippi 1995 North Carolina 1995 Texas 1997 Louisiana 1998 Virginia
Political conservatism does not, however, tell the entire story. Spousal support reform was delayed throughout the south; of the last nine states to adopt such reform, eight had stars in the Confederate flag, and the ninth (West Virginia) was part of a Confederate state before the Civil War. Yet the first four of these states Maryland, South Carolina, Tennessee, and West Virginia adopted spousal support reform in 1984 or 1985. Other southern states, such as Alabama, Florida, and Georgia, have traditionally recognized time-limited support. Pure political conservatism, therefore, is not the only answer. Why did states such as Mississippi and North Carolina wait so much longer to adopt spousal support reform than states such as Alabama and Georgia?
Part of the answer can be found in the method by which these various states adopted spousal support reform. In Alabama and Georgia, the courts have traditionally been willing to award time-limited alimony without legislative sanction. In Louisiana, North Carolina, and Virginia, the courts were not so willing, and, in Texas, the courts for over a century refused to allow any awards of alimony at all. Among second-wave states, only Mississippi adopted spousal support reform by court decision. It is therefore broadly accurate to define second- wave states as conservative jurisdictions in which the courts were unwilling to adopt spousal support reform without legislative sanction.
But why were the legislatures in second-wave states so unwilling to enact spousal support reform at an earlier date? As the chart attached to the graph shows, 29 states adopted spousal support reform by statute, and only seven states did so by court decision. Many legislatures therefore enacted spousal support reform in the 1970s and 1980s. While few of these legislatures were in the south, spousal support reform was enacted by equally conservative legislatures in such far western states as Montana and Wyoming. There must be some additional factor which made spousal support reform particularly difficult in second-wave states.
The key to this riddle may lie not in spousal support reform itself, but in the relationship between spousal support reform and property division reform. Using data from the table at the end of this article, the preceding graph shows the relationship between the year in which each state adopted property division reform and the year in which it adopted spousal support reform. On the graph, a diagonal line is drawn from the lower left corner to the upper right corner. States above and to the left of this line adopted property division reform first; states below and to the right of this line adopted spousal support reform first.
The relationship between this graph and the above list of second-wave states is striking. All of the states marked well above the diagonal line that is, all of the states in which property division reform came well before spousal support reform are second-wave states. More generally, there are only two states marked below the line Florida and Georgia. It appears that in states which did not adopt property division reform and spousal support reform together at the same time, the enactment of spousal support reform was almost always delayed. The primary reason for the existence of the second wave of spousal support reform is the fact that in most of the second-wave states property division reform and spousal support reform were considered as separate and independent measures.
Why did some states treat these two reforms as a single package, while others considered them separately? To the drafters of the UMDA, all three key portions of divorce reform no-fault divorce grounds, property division reform, and spousal support reform were linked in a logical sequence. The UMDA began by recognizing the public demand for divorce without fault. If divorce were permitted without fault, however, then marriage would no longer be a permanent lifelong institution; it would instead become a status which persons could enter and leave at will. If marriage itself was no longer permanent in every case, however, then the right to spousal support should likewise not be permanent in every case. The drafters therefore included a provision which redefined alimony as compensation for specific past sacrifices, and as assistance for meeting short-term financial needs which the dependent spouse could not meet through employment. If divorced spouses are expected to be independent and not to require long-term support, however, then they have an obvious need for a fair share of the property acquired during the marriage. Within the UMDA, the sequence of reform was a logical progression from grounds of divorce to alimony to property division.
States which enacted complete no-fault reform in the 1970s generally followed the UMDA example and adopted alimony reform. These states included not only those which actually enacted the entire UMDA (a relatively small number by the standard of most Uniform Acts), but also a much larger group of states whose law was influenced by the UMDA. In all of these states, property division reform and spousal support reform were adopted together as part of a single reform package.
In another group of states, however, the sequence was different. These states may have reformed their grounds for divorce in the 1970s, but they did not adopt any related financial reforms. They rejected the linkage between social and economic reforms, and chose to hold off on economic reform until a later date. By the late 1970s and early 1980s, the case for adopting a modern property division system was clearly compelling; in particular, the number of women in the workplace (and in the legislatures) had reached the point where property division reform was urgently necessary. Thus, in the 1970s and 1980s, these states adopted equitable distribution. Their model in doing this was not the UMDA, but rather a select review of the law in other states whose property division statutes had been influenced by the UMDA. Because they paid no attention to the UMDA directly, they did not adopt any spousal support reform.
By the 1990s, all of these states had adopted and refined equitable distribution. Attention then turned, slowly and gradually, to the question of spousal support. As noted above, the notion that spouses should not have an automatic permanent entitlement to support flows logically from the notion that marriage is a terminable status and not a permanent lifelong condition. In some ways, it is a more natural consequence of that notion than the idea that property should be divided upon divorce. As this fact became more evident, the second group of states suffered still another wave of reform. The core element of this reform was recognition that the court may, in an appropriate case, award spousal support which lasts only for a limited term of years.
While there is no rational explanation for why reform was delayed and inverted in the second-wave states, there is a political explanation. The financial side of no-fault reform had two aspects: the adoption of equitable distribution, and the redefining of spousal support. Property division reform clearly shifted resources from men to women. Spousal support reform shifts resources in favor of women even after reform is complete, but it does so at a slower rate, and therefore has the incremental effect of shifting resources from women to men. In states which regarded the social and financial sides of no- fault reform as an indivisible whole, the social and political pressures which led to reform caused the whole package to be enacted at once. In those states which broke the reforms down into individual packages, however, the supporting coalition fractured. Advocacy groups representing the interests of women were formed during battles in the 1960s and 1970s on other gender-related issues. These groups strongly supported no-fault divorce and equitable distribution. The effect of spousal support reform was less favorable to women, however, and many women's groups were either lukewarm or opposed to it. Advocacy groups representing men were not as organized, and did not carry the same political weight. Because of this fact, of the three main components of no-fault divorce, alimony reform was the most difficult to enact. This fact explains why, in those states which divided the reform into its components, property reform generally preceded spousal support reform.
IV. SECOND-WAVE SPOUSAL SUPPORT STATUTES
As noted above, the effect of gender upon politics was one major reason why second-wave states waited so long to adopt spousal support reform. But it was not the only reason. During the mid to late 1980s, a series of studies were done on the effects of spousal support reform in first-wave states. These studies provided opponents of spousal support reform with a considerable body of evidence that time-limited support was subject to abuse. In order to enact spousal support reform, second-wave states had to address the concerns raised by these studies.
The abuses reported by the studies were substantial. Among the earliest studies was Lenore Weitzman's survey of divorce cases in the courts of California. Weitzman found that the percentage of wives receiving spousal support after marriages of 15 years or more dropped from 38.8% to 31% after California adopted spousal support reform. Lenore Weitzman, The Divorce Revolution 169 (1985). The figure rebounded to 45.5% after the California appellate courts struck down several cases in which trial courts were too quick to make time-limited awards, see, e.g., In re Rosan, 24 Cal. App. 3d 855, 101 Cal. Rptr. 295 (1972), but the fact remained that over one-half of all wives in marriages of 15 years or longer were not receiving any support at all. Weitzman's findings further suggested that trial courts tended to overestimate the ability of women generally to find employment. These findings were controversial when made, and they became even more controversial when Weitzman herself admitted to errors in compiling the results of her survey. (See her response to Dr. Richard R. Peterson's article in the June 1996 issue of The American Sociological Review.) Still, the magnitude of Weitzman's findings was greater than the magnitude of her admitted errors.
Other surveys also found that trial judges were too quick to award limited-term support to both older and younger women. A study in Maryland found that of 40 women married for over 15 years, only 18 received permanent alimony, while 7 received time-limited alimony and 15 received no alimony at all. Bell, Alimony and the Financially Dependent Spouse in Montgomery County, Maryland, 22 Fam. L.Q. 225, 286-87 (1988). Likewise, another study in New York found that in marriages of 20 years or longer, 84% of all alimony awards were permanent in 1978; by 1984, after the enactment of spousal support reform, this figure dropped to 53%. Garrison, Good Intentions Gone Awry: The Impact of New York's Equitable Distribution Law on Divorce Outcomes, 57 Brooklyn L. Rev. 620, 701 (1991). These figures are representative of roughly a dozen published surveys on spousal support awards generally.
Some opponents of spousal support reform tried to use these studies to argue against the entire concept of reform. The problem with that argument was that none of the studies opposed time-limited support across the board. On the contrary, at least some of the surveys expressly supported time- limited awards, if limited to proper cases. E.g., Garrison, supra, at 735 ("Except for the woman who has been economically disadvantaged by long- term child care and homemaking responsibilities, the concept of durational alimony enjoys widespread support"). The surveys clearly indicated, however, that time-limited awards could inflict injustice if they were made in the wrong types of cases. To overcome the opposition to reform based upon these surveys, proponents of reform were forced to adopt specific measures to protect against abuses reported in other states.
Many of the necessary measures were suggested in the surveys themselves. For instance, the root cause of the abuses reported in the Maryland study was the language of Md. Code Ann., Fam. Law. 11-106 (1986), which permitted a permanent support award only where the living standards of the parties would otherwise be "unconscionably disparate." The effect of this language was to create a strong presumption in favor of time-limited support. Second-wave states concluded from the Maryland study that an across-the-board presumption in favor of time-limited support would be an error.
Studies in California, New York, and other states were not so easily dismissed as a result of unfortunate statutory language. The statutes in these states merely permitted an award of time- limited support, without giving the court any guidance as to when such an award was appropriate. Second-wave states concluded from these surveys that simple, uncomplicated statutory provisions were subject to abuse. Proponents of reform therefore sought to draft statutory language which would help ensure that time-limited support was awarded only in the right kinds of cases.
In drafting these provisions, there was no single source on which all of the second-wave states relied. The recommendations of the surveys cited above were certainly one factor. Another relevant source was New Jersey's spousal support statute, N.J. Stat. Ann. 2A:34-23 (West Supp. 1998), which was amended in 1988 to include material specific to time- limited awards. The New Jersey Supreme Court adopted spousal support reform in 1980, see Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45, 53 n.9 (1980), so New Jersey is not strictly a second-wave state. Its statute was apparently motivated by some of the same concerns which motivated true second-wave statutes, however, and the statute reads more like a second-wave statute than the shorter and simpler enactments typical of the first wave.
The extent to which the second-wave statutes influenced each other is not entirely clear. The Virginia drafting committee, which included the author of this article, looked extensively to law in other states. See generally Report of the Family Law Section of the Virginia State Bar on Rehabilitative Alimony and the Reservation of Spousal Support in Divorce Proceedings, Va. House Doc. No. 55 (1997 Session). It did not choose to follow the statute of any one state in particular, but did pay specific attention to the statutes from New Jersey and North Carolina. The history of the Louisiana statute is discussed in depth in Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L. Rev. 887 (1998). In neither that article nor the Revision Comments to Article 112 of the Louisiana Civil Code is there any specific discussion of authority from other states. In recognizing time- limited support by court decision, the Mississippi Supreme Court did not cite a single statute or case from outside the state. See Hubbard v. Hubbard, 656 So. 2d 124 (Miss. 1995). There is no available legislative history on the North Carolina statute. Of course, all of the second-wave states were influenced to some extent by the general nationwide trend toward limited-term support, but there is not extensive evidence of deliberate coordination between advocates of limited-term support in second-wave states.
The most common specific protection against abuse appearing in the second-wave statutes is a requirement that the trial court make express findings of fact whenever it awards any type of spousal support. These findings help appellate courts ensure that the terms of the statute are followed as intended. The discipline of making findings also helps ensure that the trial judge gives proper consideration to the actual evidence regarding the realistic employability of the dependent spouse. The North Carolina statute even goes so far as to require findings on every statutory factor on which evidence is introduced. N.C. Gen. Stat. 50- 16.3A(c) (1995). The Virginia statute only requires findings on the factors which support the award, but requires an additional specific finding on the basis for the nature, amount, and duration of a time- limited award. Va. Code Ann. 20-107.1(F). The New Jersey statute simply requires findings on the evidence in the record regarding the factors. N.J. Stat. Ann. 2A:34-23.
Most of the second-wave statutes expand the list of statutory support factors by adding several provisions specifically regarding time-limited awards. These factors require the court to consider such important facts as the actual employability of the parties, the actual time needed to acquire any necessary job training, and any contributions made by one spouse to the education or training of the other spouse during the marriage.
Some of the studies recommended a presumption against awarding limited-term support after a long- term marriage. See, e.g., Garrison, supra, 57 Brooklyn L. Rev. at 735. The presumption approach was attempted in only one state, Virginia, where the committee which drafted the statute accepted Garrison's suggestion and recommended two matching presumptions: a presumption in favor of limited-term support after a marriage of five years or less, and a presumption against limited-term support after a marriage of 20 years or more. See Report of the Family Law Section of the Virginia State Bar on Rehabilitative Alimony and the Reservation of Spousal Support in Divorce Proceedings, Va. House Doc. No. 55 at 5 (1997 Session). These two presumptions were removed by the legislature, which feared that the specific time periods would create incentives for spouses to remain in abusive marriages or to leave marriages which were not entirely beyond hope of reconciliation.
Overall, the second-wave spousal support statutes are considerably more detailed than the initial wave of statutes based upon the UMDA. The lists of factors are longer and more specific; findings of fact are generally required. It remains to be seen whether these provisions will sufficiently deter the abuses of time-limited support reported in other states. The author hopes that the findings requirement, together with increased attention paid to the types of cases in which support should and should not be awarded, will lead to improvement. If specific findings alone prove to be insufficient, the logical next step is toward the enactment of presumptive spousal support guidelines, a measure with which many courts are already beginning to experiment seriously. If the specific rejection of support presumptions in Virginia is any guide, however, state legislatures have not yet been convinced that a less discretionary approach would be advisable.
V. TIME-LIMITED SPOUSAL SUPPORT: WHEN TO AWARD IT?
As noted in the introduction to this article, limited-term spousal support is an established institution in a majority of jurisdictions. In second- wave states, however, courts and attorneys are only beginning to grapple with the subject. Moreover, the experience of first-wave states tends to show the first few years after enactment of reform is the period when courts are most likely to abuse the concept of limited-term support. It is important, therefore, that bench and bar educate themselves on spousal support reform as soon after its enactment as possible. The following section of this article is intended to assist attorneys in second-wave states in identifying the types of cases in which limited-term support is appropriate, and perhaps to serve as a refresher course for attorneys in states where spousal support reform is more established.
It should be noted initially that the duration of spousal support, like the amount of spousal support, is not subject to fixed rules. No commentator has ever suggested, and no court has ever adopted, a precise rule of law for measuring the length of a spousal support obligation. Instead, the general rule is that the amount of support depends upon the discretion of the trial judge.
Although there are no fixed rules for determining the duration of a spousal support award, it is possible to identify certain types of cases in which limited-term support is commonly awarded. The boundaries of these areas are not rules of law, and they do not have the force of precedent. Instead, they are simply situations in which an objective review of the case law nationwide shows a high incidence of limited-term support awards. When a case matches one of these fact patterns, the court is not required to award limited-term spousal support. There is, however, a good likelihood that a limited- term award will at least be seriously considered.
Situation I: Future Increase in Recipient's Income
The most common fact situation in which limited- term alimony is awarded occurs when the recipient spouse is reasonably capable of increasing his or her income. In this situation, the courts often award limited-term support, to terminate at that point in time when the future increase is expected to materialize.
Limited-term support in this first situation is often called rehabilitative alimony, because the purpose of the award is to rehabilitate the recipient to increase that person's income to the point where the need for support is reduced or eliminated. Limited-term awards in this situation are so common that the phrase "rehabilitative alimony" is sometimes used to refer to any spousal support award which lasts for a fixed duration. As we shall see, however, time- limited support is not by any means limited to situations in which the recipient's earnings are likely to improve. In this article, rehabilitative alimony will be used in its more narrow sense to mean a time- limited award made for the purpose of encouraging the recipient to increase his or her own earnings.
Those who are new to rehabilitative alimony often ask why it should be required. After all, even under pre-reform law, spousal support awards could be terminated when a material change in circumstances eliminated the need for support. Why not simply award permanent alimony, subject to a reduction if and when the future increased earnings materialize?
The narrow answer to this question is that however powerful the court's power to terminate spousal support may appear on paper, there are not many pre-reform cases in which that power was actually exercised. Very rarely does a court hold that in this case, on these facts, support is actually reduced or terminated because the recipient actually increased his or her earnings. The members of the Virginia rehabilitative alimony committee, who together had many years of experience in litigating divorce cases, were not aware of any substantial number of actual cases reaching this result. Unless support recipients are incapable of increased earnings a result which contradicts the experience of other states modification under pre-reform law was not a practically effective measure.
The failure of pre-reform spousal support law to recognize the earning potential of recipient spouses was not entirely surprising. Earning capacity is not acquired naturally; it is acquired through effort, effort which frequently requires a certain measure of sacrifice. A spouse who attends school has less time for leisure activities; a spouse who works must begin in a lower-paying position which might not immediately match the spouse's long-term employment goals. Pre-reform spousal support law did not give support recipients a sufficient incentive to put forth real effort to increase their earnings. On the contrary, spouses who put forth efforts to increase their earnings suffered a reduction in support, while spouses who did nothing continued to receive the same amount indefinitely. Thus, by allowing modification only where the recipient's earnings increased, pre-reform spousal support law actually discouraged spousal support recipients from increasing their earnings.
One of the most fundamental goals of spousal support reform is to give support recipients a realistic motivation to become more self-sufficient. When the record shows that a given increase in earning capacity is reasonably possible, the court should provide in advance for a termination of support when that increase is realized. When such an order is made, the recipient knows that support will terminate at a certain point in the future. The recipient knows that if he or she fails to accomplish the expected increase, there will be a significant drop in income and in standard of living. By giving the trial court the power to make a credible threat of a future reduction in support, spousal support reform creates a real motivation for the dependent spouse to increase his or her earnings.
Courts in other states have frequently awarded limited-term support to a spouse who is capable of significant increased earnings. For instance, in In re Neuman, 816 S.W.2d 283 (Mo. Ct. App. 1991), the husband earned $1,780 per month, while the wife earned only $90 per year (plus $292 in public assistance). The wife was working toward a degree in elementary education, however, and she would receive that degree in 18 months. After the degree was received, she would earn $17,500 per year ($1,458 per month), which was reasonably comparable to the husband's salary. The court awarded rehabilitative support of $300 per month for 18 months. See also York v. York, 823 S.W.2d 45 (Mo. Ct. App. 1991) (awarding $1,500 per month for 36 months; marital living standard was high, but wife expected to graduate from law school in three years); Goode v. Goode, 70 Ohio App. 3d 125, 590 N.E.2d 439 (1991) (where wife needed eight years of part-time school to obtain certification as registered nurse, proper to award eight years of alimony). The award should cover not only the time needed to obtain the education, but also any additional time needed to find employment. See, e.g., Aresty v. Weinstein, 667 So. 2d 846 (Fla. Dist. Ct. App. 1996) (wife was an attorney with an LLM in tax law, but had not worked full-time for two years; error to award permanent support, but wife still awarded support for 18 months to cover the time necessary to obtain employment).
The Dangers of Abuse. When an award of rehabilitative alimony is closely tailored to the actual, proven ability of the recipient to increase his or her earnings, the award is a powerful tool to encourage self-sufficiency. A tool which can be used for good, however, can also be used for evil. When the dependent spouse lacks the actual ability to increase his or her earnings, an award of rehabilitative support is a grave mistake. Many older dependent spouses have been removed from the job market for so long, and their skills are so lacking, that they have no reasonable chance of increased future earnings.
When the support recipient cannot reasonably increase his or her earnings in the future, an award of limited-term support is normally error. The Virginia rehabilitative alimony study committee heard compelling testimony from support recipients who were afraid that unreasonable expectations would be placed upon them. In response to these fears, the study committee report stated expressly the importance of making realistic projections of future earning capacity:
Where the marriage is long or the dependent spouse is not realistically employable, traditional permanent alimony may be the better approach. This [rule] has been implemented not only in the substantive rules of law created by the committee's proposed legislation, but also in a set of procedural rules very carefully crafted by the committee to help insure that rehabilitative alimony is awarded only in the right type of cases. The legislation drafted by the committee is intended to provide rehabilitative alimony only in cases where it actually fosters financial independence. The committee does not intend that rehabilitative alimony be awarded after long marriages in which the alimony recipient is not realistically employable.
Report of the Family Law Section of the Virginia State Bar on Rehabilitative Alimony and the Reservation of Spousal Support in Divorce Proceedings, Va. House Doc. No. 55 at 7 (1997 Session) (emphasis added).
Courts in first-wave states have held that where there is no reasonable likelihood of increased future earnings, an award of rehabilitative support is error. For instance, in Beeman v. Beeman, 816 S.W.2d 15 (Mo. Ct. App. 1991), the wife earned $300 per week as a grocery store cashier, while the husband earned $3,773.46 per month working for the Federal Aviation Administration. Since the marriage had lasted 30 years, there was no question but that the wife was entitled to continue living at a level reasonably comparable to that enjoyed during the marriage. She would not be able to do that with her present income and there was no realistic possibility that she could improve her earnings. The court reversed a five-year alimony award and remanded with instructions to award permanent alimony. See also Greeley v. Greeley, 583 So. 2d 1078 (Fla. Dist. Ct. App. 1991) (error to award both permanent and rehabilitative alimony to 54-year-old wife with no immediate job prospects; entire award should have been permanent alimony); In re Kerber, 215 Ill. App. 3d 248, 574 N.E.2d 830 (1991) (where husband requested that wife not work during 30- year marriage, and wife had no reasonable likelihood of future earnings, error to award only one year of alimony); Pendleton v. Pendleton, 65 Ohio App. 3d 763, 585 N.E.2d 479 (1989) (husband in 35-year marriage earned $1,548 per month, while wife earned only $758 per month as a "facility host" at a hospital; since wife had no likelihood of improved earnings, trial court properly awarded permanent rather than rehabilitative alimony).
Limited Increases and Combination Awards. In addition to considering the likelihood of any future increased earnings, the court must also pay attention to the amount of the future increase which can reasonably be expected. Many dependent spouses are capable of some increase in their future earnings. In many cases, however, that spouse has made permanent income sacrifices as a result of bearing children during the marriage, and the amount of the reasonably expected increase is not sufficient to meet reasonable support needs at the marital standard of living. If the experience of other states is any guide, this is probably the single most common fact situation involving limited-term support the situation where some increase is possible, but the increase is not sufficient to meet all of the dependent spouse's needs.
The preferred solution in this situation is to make both a limited-term award and a permanent support award. The permanent award should cover the difference between realizable earning capacity and reasonable future needs. The limited-term award should cover the difference between present income and income capacity. Assume, for instance, that the wife's present income is zero, that in three years she could earn $15,000 per year, but that her reasonable support needs are $25,000 per year. Assuming that ability to pay is not a problem, the court should award $15,000 per year for three years to cover the wife's short-term support needs. In addition, it should award $10,000 per year in permanent support to cover the wife's long-term support needs. (The actual award would, of course, be stated as a monthly obligation.) These dual awards recognize the wife's long-term needs while still giving her a realistic incentive to earn as much as possible.
Many decisions from other states adopt this approach. The following comments from a Florida court are typical of the views of courts nationwide:
"A person is not self-supporting merely because he or she has a job and income. The standard of living must be compared with the standard established during the course of the marriage. A divorced wife is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long-term marriage."
Akers v. Akers, 582 So. 2d 1212, 1218 (Fla. Dist. Ct. App. 1991) (quoting O'Neal v. O'Neal, 410 So. 2d 1369, 1371 (Fla. Dist. Ct. App. 1982)). For specific sample cases awarding a mixture of permanent and time-limited support, see Lanier v. Lanier, 594 So. 2d 809 (Fla. Dist. Ct. App. 1992) (wife expected degree in elementary education in one year, but could earn only $20,000 with the degree, and husband's earnings were $50,000; court awarded both rehabilitative and permanent alimony); Coviello v. Coviello, 91 Md. App. 638, 605 A.2d 661 (1992) (where partial but not complete rehabilitation was possible, proper to award both rehabilitative and permanent alimony; award was $1,500 per month for 18 months, and $700 per month indefinitely after that); and In re Redler, 112 Or. App. 203, 827 P.2d 1363 (1992) (husband's income after 19-year marriage was $6,416 per month, while wife's was $745 per month in part-time work; improvement was possible, but wife's income would never permit her to have a comparable living standard; awarding $1,000 per month for three years, and $750 per month for five more years).
It should be noted that in determining whether the recipient can realistically increase his or her earnings, the question is not whether the recipient can find employment anywhere. It is hornbook support law that in imputing income to dependent spouses, the court must look at the general marital standard of living. Thus, a woman who has been for 20 years the wife of a doctor earning $200,000 a year cannot be required to work at a fast-food restaurant. Even if the wife is otherwise unemployed and could work in such a position, she should not be required to accept employment beneath her general station in life.
Custodial Parents. One of the hardest policy issues posed by time-limited support is the case of the custodial parent. There is widespread agreement in our society that where children are not present, both spouses should work. But in many divorcing families, children are present. To what extent should the law impose a duty to work upon the custodial parent?
First-wave states have generally been sensitive to the benefits young children receive from the presence of a full-time caretaker. At the same time, there is no reason to hold in every case that the custodial parent need not work. Some custodial parents worked by choice during the marriage, and the fact of divorce is not a valid reason to change that decision. In families of limited means, economic pressures sometimes require that both parents work. Finally, as children grow older, they begin to spend a good part of the day in school. It is hard to see why the interests of children should limit the custodial parent's duty to work while the children are absent.
Most states leave the balancing of these concerns to the trial court. The law generally establishes some form of balancing test, requiring the court to weigh the need for and the advantages of a full-time caretaker against the financial benefits of having the custodial parent work. For example, the test in West Virginia is as follows:
A court should not relieve a supporting spouse from the duty to maintain the dependent spouse and children by providing only rehabilitative alimony simply because the dependent spouse may have the skills necessary to facilitate a return to the job market. Instead, the court should consider the following factors before opting for rehabilitative alimony over permanent alimony: (1) the dependent spouse's position in the home at the time of the divorce; (2) the age of the children; (3) the parties' income at the time of the divorce and their potential income in the future; and (4) the benefit, where economics permit, of the dependent spouse remaining in the home to care for the children.
Wyant v. Wyant, 184 W. Va. 434, 400 S.E.2d 869, 875 (1990). It is difficult to state even a general rule as to the results of these balancing tests, since so many cases are fact-specific. It would probably be generally accurate to state that when all of the children are in school full-time (generally first grade or higher), most states will require the custodial parent to work at least part-time. When the children are young, work is generally not required unless the custodial parent worked before the divorce. Work may also not be required when some special ability or limitation of the child provides an unusual reason for continuing full-time care. See, e.g., Petruska v. Petruska, 200 W. Va. 79, 488 S.E.2d 354 (1996) (wife had actual prior job experience, but child had unusual talent in competitive swimming, and mother had left work during marriage to travel with child to swim meets; mother not required to work after divorce).
Situation II: Future Decrease in Payor's Income
The most common fact situation in which courts award time-limited support occurs when there is a realistic possibility that the dependent spouse can increase his or her earnings. Time-limited support can also be awarded, however, in the converse situation where there is a reasonable chance that the supporting spouse's earnings will decrease.
A future decrease in earnings is most likely to occur when the supporting spouse is approaching the age of retirement. In most modern divorce cases, two foreseeable changes will occur upon retirement: The supporting spouse's earned income will drop, and both parties will begin to receive retirement benefits. In particular, if the court has made a deferred distribution of the supporting spouse's retirement benefits, the dependent spouse will begin to receive a share of those benefits.
Courts in first-wave states have often awarded time-limited support when retirement is reasonably foreseeable in the short- to medium-term future. See, e.g., McGraw v. McGraw, 186 W. Va. 113, 411 S.E.2d 256 (1991) (proper to award wife alimony until her retirement benefits commenced; good discussion); In re Puls, 268 Ill. App. 3d 882, 645 N.E.2d 525 (1994) (proper to award wife limited- term support until husband's retirement); Middleton v. Middleton, 584 So. 2d 138 (Fla. Dist. Ct. App. 1991) (awarding alimony until wife began receiving her share of husband's pension would be proper, but error to terminate alimony when husband's retirement vests; pension might not be immediately payable, or it might never vest to begin with).
It should be noted that in most of the cases awarding time-limited support because of impending retirement, the parties were in their 50s or older. When the parties are younger, it is difficult to predict the size of the retirement benefits and the amount of the parties' future support needs without engaging in unreasonable speculation. The court should therefore award permanent support, leaving the subject of retirement for future modification proceedings.
Situation III: Past Income Sacrifices
In the above two situations, limited-term support is awarded because a foreseeable future change in circumstances will reduce or eliminate the need for support. These cases accept the premise that the dependent spouse is theoretically entitled to permanent assistance in meeting his or her support needs, but they reduce the amount of such assistance on grounds that the actual support needs involved will decline materially in the foreseeable future.
In other cases, limited-term support is awarded not because of any expected future change in circumstances, but rather because of specific events which occurred in the past. These events give the spouse a right to some amount of support, but not a right to permanent support at the marital standard of living. After spousal support reform, a court hearing these cases has a middle option between no support at all and support for a substantial number of years. This type of support is not rehabilitative, because it is not based upon the ability of the recipient to improve his or her earning capacity. It is instead support which simply lasts for a limited period of years.
The most common situation involving an award of time-limited support for reasons other than rehabilitation involves a dependent spouse who has made permanent income sacrifices during the marriage. Most of the reported decisions involve the familiar "diploma dilemma" situation, in which one spouse sacrificed to put the other spouse through professional or graduate school.
A few states have held in this situation that the resulting professional degree is itself marital property. See O'Brien v. O'Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985); Postema v. Postema, 189 Mich. App. 89, 471 N.W.2d 912 (1991); see also Or. Rev. Stat. 107.105(1)(f) (newly enacted statute which treats all earning capacity acquired during the marriage as marital property). An overwhelming majority of jurisdictions reject this approach. See, e.g., In re Graham, 194 Colo. 429, 574 P.2d 75 (1978); Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992); Archer v. Archer, 303 Md. 347, 493 A.2d 1074 (1985); Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986). See generally Brett R. Turner, Equitable Distribution of Property 6.20 (2d ed. 1994 & Supp. 1997).
In states which refuse to treat a degree as marital property, the preferred remedy is an unequal division of marital property. Turner, supra, 6.20. This remedy works when divorce occurs some years after graduation, so that there is a body of marital property to divide. When divorce occurs shortly after graduation, however, there is simply not enough property available to make unequal division an effective remedy.
Thus, in cases where there is not enough marital property to make a meaningful unequal division, the strong general trend is to make an award of time- limited spousal support. Time-limited support in a degree case is such a specific remedy that it has been given its own label: reimbursement alimony. The basis for the label is the theory that the purpose of support in this situation is to reimburse the non- student spouse for his or her past contributions to the education and career of the other spouse.
The leading case nationwide recognizing reimbursement alimony is the New Jersey Supreme Court decision in Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982). The parties in Mahoneywere married after they received their undergraduate degrees. During the marriage, the husband spent 16 months obtaining an MBA degree, during which period the wife supported the family. He paid his educational expenses with veterans' benefits based upon his service in the Air Force. The wife also obtained a master's degree in microbiology later in the marriage, but she attended school only part-time, continuing her full-time job and contributing normally to the family income. The trial court arbitrarily awarded the wife $5,000 in reimbursement, without providing a specific supporting basis. On appeal, the court approved the concept of reimbursement, but took the opportunity to state the controlling law more clearly:
To provide a fair and effective means of compensating a supporting spouse who has suffered a loss or reduction of support, or has incurred a lower standard of living, or has been deprived of a better standard of living in the future, the Court now introduces the concept of reimbursement alimony into divorce proceedings. The concept properly accords with the Court's belief that regardless of the appropriateness of permanent alimony or the presence or absence of marital property to be equitably distributed, there will be circumstances where a supporting spouse should be reimbursed for the financial contributions he or she made to the other spouse's successful professional training. Such reimbursement alimony should cover all financial contributions towards the former spouse's education, including household expenses, educational costs, school travel expenses and any other contributions used by the supported spouse in obtaining his or her degree or license.
453 A.2d at 534.
West Virginia followed Mahoney and adopted the concept of reimbursement alimony in Hoak v. Hoak, 179 W. Va. 509, 370 S.E.2d 473 (1988). In Hoak, the parties were married after the husband's first year of medical school, and divorced after his second year of residency. The wife worked and provided the great majority of the family's income during medical school, but she worked only sporadically while the husband was a resident. The court adopted Mahoney fairly literally, expressly holding that the West Virginia alimony statute was broad enough to encompass reimbursement alimony as well as traditional alimony. On the question of measuring the award, the court approved of Mahoney's contribution-based method. The court noted, however, that where actual contributions are difficult to measure, an alternate formula may be appropriate:
working spouse's financial contributions to joint living expenses and educational costs of student spouse
(working spouse's financial contributions plus student spouse's financial contributions less cost of education)
equitable award to working spouse.
Hoak, 370 S.E.2d at 479. The Hoak court quoted this formula from DeLaRosa v. DeLaRosa, 309 N.W.2d 755, 759 (Minn. 1981).
While the above courts focused relatively narrowly upon the concept of reimbursement for contributions, at least one other court has adopted a broader approach. In In re Francis, 442 N.W.2d 59 (Iowa 1989), the husband proposed marriage to the wife on the day he was admitted to medical school. The parties were divorced six years and two children later, after the husband's second year of residency. The wife had moved with the husband once, from the town where he attended medical school to the town where he served his residency. The husband's tuition was paid partly with marital earnings and partly with gifts from both parties' parents, but mostly by assumption of student loans. The trial court awarded the wife a $100,000 lump-sum award to compensate her for her various contributions to the husband's education, and awarded her rehabilitative alimony so that she could attend a program in Montessori preschool theory and establish herself in the preschool teaching industry. The husband appealed, arguing that the $100,000 award greatly exceeded the value of the wife's contributions. The court rejected the foundation upon which this argument was constructed:
Other jurisdictions speak in terms of compensating the supporting spouse through an award of alimony, but not based on the student's future earning capacity. . . . [C]ourts in Iowa are not confined to reimbursing supporting spouses solely for the expense of the advanced degree itself.
Id. at 66. In essence, therefore, the court held that the trial court was at least permitted to award the wife a reasonable return on her investment in the husband's future career. The court expressly noted that the trial court had relied in part upon the testimony of an expert hired by the wife to estimate the value of the degree and license the husband had acquired with the assistance of the wife. This approach came close to valuing the degree and license as marital assets, but the court held that the wife was merely quantifying the present value of the enhanced earning capacity the husband had acquired with her help. The trial court's decision was affirmed on all issues.
For additional cases awarding reimbursement alimony, see Ranz v. Ranz, 51 Ohio App. 3d 66, 554 N.E.2d 142 (1988) (awarding the wife alimony to help her with her own educational expenses); Forristall v. Forristall, 831 P.2d 1017 (Okla. Ct. App. 1992) (where wife contributed twice as much as husband to support of family while husband was in school, error not to award enhanced alimony); and Beeler v. Beeler, 715 S.W.2d 625 (Tenn. Ct. App. 1986) (affirming award of lump-sum alimony intended to pay wife's expenses for her own pending education as a teacher).
Situation IV: Short Marriages
The final fact situation in which courts in first- wave states award time-limited alimony is simply stated: when the marriage is too short to justify a permanent support award. This fact situation lies at the core of the fundamental policy change made by spousal support reform. In a former era, alimony was a lifelong entitlement, the postmarital quantification of the marital support duty. Marriages were expected to last forever, and even when they did not, society forced the parties to support one another to continue the economic side of a marriage long after it was dissolved in fact.
As divorce becomes less stigmatized and more common, the policy of lifelong support is increasingly distanced from reality. In a world where marriages do not last forever, why should divorcing parties automatically be forced to remain in an economic partnership for their entire lives? There are certainly cases where the marriage lasted so long, and the dependent spouse made such a substantial sacrifice of earning capacity, that lifelong support is appropriate. But why should this result be automatically presumed? Why should it be forced upon marriages where the necessary element of long-term sacrifice was not present? There is no real answer to these questions. If the law is to recognize the terminability of marriage by recognizing no-fault divorce, it cannot insist that a lifelong duty of spousal support arises in every case from the mere fact of the marriage. The two doctrines are not compatible.
It is difficult to state precisely which marriages are so short that the right to lifelong support never arises. Many of the cases from first-wave states involve marriages of five to six years or less. See, e.g., In re Siddens, 225 Ill. App. 3d 496, 588 N.E.2d 321 (1992) (six-year marriage between younger wife and older husband; wife was employable as either a registered nurse or a real estate salesperson; proper to award only rehabilitative alimony); In re Man-gelsdorf, 107 Or. App. 683, 813 P.2d 61 (1991) (one year of alimony awarded after six-year marriage; most of wife's premarital assets had been depleted, and wife's mortgage payments were higher than husband's); In re Drone, 217 Ill. App. 3d 758, 577 N.E.2d 926 (1991) (awarding two years of alimony after six-year marriage; wife was 59 while husband was only 42, and wife had less than half of husband's earning capacity).
The issue is not so much the pure length of the marriage, however, as it is the degree to which the parties sacrificed their earnings. Marriages of longer duration might not result in a permanent support entitlement if the parties were both employed, had no children, and neither subordinated a career to the other. Conversely, marriages of very short duration can yield a right to support if permanent income sacrifices were made, an event which often occurs when the parties have children. The duration of the marriage is significant, but the decisions turn more upon the roles of the parties within the marriage.
Time-limited spousal support has been an established part of American divorce law for well over a decade. It is a tool of great power, and as the studies cited in this article show, it has upon occasion been abused to inflict financial harm upon dependent spouses. It should, accordingly, be awarded with a certain degree of caution. When properly used, however, time-limited support can give the recipient a real incentive to become as self- supporting as possible.
The achievement of this goal provides, of course, a financial benefit to the payor. Of greater importance, however, is the benefit to society. Across the country, new educational programs and indeed entire colleges are being created for the purpose of retraining adults for new careers. Many of these programs focus upon former homemakers. Those who graduate from these programs have enhanced self-esteem, and they make important contributions in all areas of our daily life.
Under pre-reform law, dependent spouses had little incentive to enter these programs. As a result, the programs were underutilized, and our nation lost a valuable source of human capital. By contrast, limited-term support encourages dependent spouses to utilize a greater portion of their potential earning power. In a society which is chronically short of skilled labor in such critical fields as computer science and health care, former dependent spouses are a vital resource. Spousal support reform helps our nation to utilize that resource more efficiently, and thereby provides an important benefit to society.
Property Division and Spousal Support Reform
a State-by-State Survey
State Property Division Alimony Reform AL traditional (all-property) traditional AK traditional (dual-classification); pres-ently codified at Alaska Stat. 25.24.160 UMDA alimony provision adopted by analogy in Messina v. Messina, 583 P.2d 804 (Alaska1978) AZ community property UMDA as Ariz. Rev. Stat. Ann. 25-319 (1973) AR traditional; dual-classification system adopted by Ark. Code Ann. 9-12- 315 (1979) rehabilitative alimony adopted in Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982) CA community property present Cal. Fam. Code 4330 (1969), along with no-fault divorce CO UMDA dual-classification provision as Colo. Rev. Stat. Ann. 14-10- 113 (1971) UMDA as Colo. Rev. Stat. Ann. 14-10-114 (1971) CN traditional (all-property) traditional DE traditional; dual-classification system adopted by Del. Code Ann. tit. 13, 1513 (1974) UMDA alimony provision as Del. Code Ann. tit. 13, 1512 (1979) DC traditional (all-property); presently codified at D.C. Code Ann. 16- 910 (1977) reform not yet enacted FL special equity doctrine gradually expanded by case law into full dual- classification system; codified by Fla. Stat. Ann. 61.075 (1988) Fla. Stat. Ann. 61.08 (1971), along with no- fault divorce GA traditional; formal dual- classification system adopted in Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) traditional HI traditional (all-property) Haw. Rev. Stat. Ann. 580-47(a) (1977) ID community property UMDA alimony provision as Idaho Code 32-705 (1980) IL UMDA dual-classification provision as present 750 Ill. Comp. Stat. Ann. 5/503 (1977) UMDA as present 750 Ill. Comp. Stat. Ann. 5/504 (1977) IN traditional (all-property); codified at Ind. Code Ann. 31-15-7-1 present Ind. Code Ann. 31-15-7-2 (1974); based on the UMDA IA traditional (dual-classification); presently codified at Iowa Code Ann. 598.21 traditional KA Kan. Stat. Ann. 60-1610(B)(1) (1965) (all-property), along with no-fault divorce Kan. Stat. Ann. 60-1610(B)(2) (1982) KY UMDA dual-classification provision as Ky. Rev. Stat. Ann. 403.190 (1972) UMDA as Ky. Rev. Stat. Ann. 403.200 (1972) LA community property La. Civ. Code Ann. art. 112 (1997) ME Me. Rev. Stat. Ann. tit. 19, 722-a (1971) (dual-classification) Me. Rev. Stat. Ann. tit. 19, 721 (1973) MD present Md. Code Ann., Fam. Law, 8-201 et seq. (1984) (dual-classification) present Md. Code Ann., Fam. Law 11-106 (1984) MA traditional (all-property); greatly expanded by Mass. Gen. Laws Ann. ch. 208, 34 (1974) rehabilitative alimony recognized in Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 391 N.E.2d 697 (1979) MI traditional (probably dual-classification) traditional MN UMDA dual-classification provision as Minn. Stat. Ann. 518.54 (1974) UMDA as Minn. Stat. Ann. 518.552 (1974) MS dual-classification equitable distribution adopted by court decision in Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994), and Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) rehabilitative alimony recognized in Hubbard v. Hubbard, 656 So. 2d 124 (Miss. 1995) MO UMDA dual-classification provision as Mo. Ann. Stat. 452.330 (1973) UMDA as Mo. Ann. Stat. 452.335 (1973) MT UMDA all-property provision as Mont. Code Ann. 40-4-202 (1975) UMDA as Mont. Code Ann. 40-4-203 (1975) NB traditional (all-property); codified as Neb. Rev. Stat. Ann. 42-365 traditional NV community property rehabilitative alimony recognized in Johnson v. Steel, Inc., 94 Nev. 483, 581 P.2d 860 (1978) NH traditional (all-property); codified as N.H. Rev. Stat. Ann. 458:16-a traditional NJ N.J. Stat. Ann. 2A:34-23 (1971) (dual-classification) rehabilitative alimony recognized in Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45, 53 n.9 (1980); codified in N.J. Stat. Ann. 2A:34-23 (1988) NM community property rehabilitative alimony recognized in Seymour v. Seymour, 89 N.M. 752, 557 P.2d 1101 (1976) NY N.Y. Dom. Rel. Law 236 (1980) (dual-classification) N.Y. Dom. Rel. Law 236 (1980) NC N.C. Gen. Stat. 50-20 (1981) (dual-classification) N.C. Gen. Stat. 50-16.3A (1995) ND traditional (all-property) rehabilitative alimony recognized in Carr v. Carr, 300 N.W.2d 40 (N.D. 1980) (relying on Bingert v. Bingert, 247 N.W.2d 464 (N.D. 1976), which cited the UMDA) OH traditional; formal dual-classification system adopted by Ohio Rev. Code Ann. 3105.171 (1991) rehabilitative alimony recognized in Koepke v. Koepke, 12 Ohio App. 3d 80, 466 N.E.2d 570 (1983) (citing a 1980 unreported decision) OK traditional (dual-classification); codified at Okla. Stat. Ann. tit. 43, 121 traditional; codified at Okla. Stat. Ann. tit. 41, 134 OR traditional (all-property); codified at Or. Rev. Stat. 107.105 rehabilitative alimony recognized in Kitson v. Kitson, 17 Or. App. 648, 523 P.2d 575 (1974), and Grove v. Grove, 280 Or. 341, 571 P.2d 477 (1977) PA present 23 Pa. Cons. Stat. Ann. 3501 (1980) (dual-classification) present 23 Pa. Cons. Stat. Ann. 3701 (1980) RI R.I. Gen. Laws 15-5-16.1 (1981) (dual-classification) rehabilitative alimony recognized in D'Agostino v. D'Agostino, 463 A.2d 200 (R.I. 1983) SC dual-classification equitable distribution adopted by court decision in Parrott v. Parrott, 278 S.C. 60, 292 S.E.2d 182 (1982); codified at S.C. Code Ann. 20-7- 471 (1986) rehabilitative alimony recognized in Eagerton v. Eagerton, 285 S.C. 279, 328 S.E.2d 912 (Ct. App. 1985) (citing the UMDA), and in Herring v. Herring, 286 S.C. 447, 335 S.E.2d 366 (1985) SD traditional (all-property); codified at S.D. Codified Laws 25-4-44 S.D. Codified Laws 25-4-41 (1977) TN traditional; dual-classification system adopted by Tenn. Code Ann. 36-4- 121 (1983) Tenn. Code Ann. 36-5-101 (1984) TX community property present Tex. Fam. Code Ann. 8.001 (1995), the first Texas statute ever to permit awards of alimony UT traditional traditional VT traditional UMDA alimony provision adopted as Vt. Stat. Ann. tit. 15, 15-752 (1981) VA Va. Code Ann. 20-107.3 (1982) (dual-classification) Va. Code Ann. 20-107.1 (1998) WA community property; UMDA all- property provision adopted as Wash. Admin. Code 29.09.080 (1973) traditional; UMDA adopted as Wash. Rev. Code Ann. 29.09.090 (1973) WV equitable distribution adopted by court decision in LaRue v. LaRue, 172 W. Va. 158, 304 S.E.2d 312 (1983); codified at W. Va. Code Ann. 48-2-32 (1984) Molnar v. Molnar, 173 W. Va. 200, 314 S.E.2d 73 (1984) WI traditional; dual-classification system adopted by Wis. Stat. Ann. 767.255 (1977) Wis. Stat. Ann. 767.26 (1977) WY traditional (all-property); codified at Wyo. Stat. Ann. 20-2-114 Young v. Young, 472 P.2d 784 (Wyo. 1970)
Notes on Table I
The primary goal of the property division column of the table is to list the year in which each state recognized property division as an absolute legal right, rather than a discretionary remedy. In states where a specific property division statute reversed case law holding that the court cannot divide property at all (e.g., North Carolina), determining this date is simple. In some states, however, the courts had authority to divide property before 1970, and reform occurred gradually as the appellate courts began to construe the existing statute to be more mandatory and less discretionary. In states where the shift could be attributed to a single case, that case has been cited. Where the shift was gradual, the table simply uses the word "traditional," and the date 1965 has been arbitrarily used for the graph.
With regard to the influence of the UMDA on property division, it should be noted that there are actually two UMDA property division statutes. As initially promulgated, 307 of the Act rec- ommended a dual-classification system. The Act was then amended two years later to replace the dual-classification version with an all-property version. The change resulted as much from politics as from any substantive rethinking of the provision itself; for a complete discussion of the change, see Turner, supra, 1.02 at 12-13. The initial version of 307 proved to be somewhat more popular with state legislatures than its replacement, which tends to cast doubt on the reasoning behind the change. For those few states which enacted the entire UMDA, the table lists which version of 307 the state chose to follow.
A secondary goal of the property division column is to note whether the state follows dual- classification equitable distribution, all-property equitable distribution, or community property. A debate is currently raging within the Michigan courts as to whether Michigan follows the dual- classification or all-property model. See generallyTurner, supra, Appendix A (Michigan section). Since it is the author's perception that the advocates of dual-classification are winning this unusual struggle, Michigan has been listed as a dual- classification jurisdiction.
The goal of the spousal support column of the table is to list the year in which each state held that the trial courts may award spousal support for a limited term of years. Once again, in some states we find that the courts had this authority all along, and that the reform occurred when the courts began to use that authority more often in different types of cases. Where the shift occurred in a single case most often one holding that limited-term alimony can be awarded for the purpose of rehabilitation the date of that case has been used. Otherwise, the table again uses the word "traditional," and the date 1965 is used for the graph.
In addition, the UMDA spousal support provision was more influential than the Act as a whole. Several states which did not enact the entire UMDA nevertheless adopted its spousal support provision, with the wording remaining mostly unchanged. When a state's spousal support statute uses the UMDA language, that fact has been noted on the table. Also, several state courts adopting support reform by reported decision specifically cited the UMDA in support of their reasoning. These decisions are also indicated on the table.
Identifying the date when specific legislation was passed is no easy task, particularly when the legislation was enacted 30 years ago. When adopting spousal support reform, states generally did not adopt entirely new statutes, but rather added a new provision to an existing one. Dating these additions is a difficult challenge, for while some state codes are very good about showing the history of each provision within the statute, others omit this information entirely. The only definitive source is the relevant session laws, but in an era where every state's law is fully codified, few libraries contain a complete set of session laws, especially from distant jurisdictions. The author would welcome additional information and corrections from readers who may be more familiar with the law of specific jurisdictions.
When citing statutes, the table varies from standard citation form. The date given is not the date of the present version, but rather the date upon which the provision in question was enacted. When the provision predates 1970, the effort of finding the precise date has been deemed not worth the cost, and the statute is cited without a date.
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