I’m happy to say that the need for some predictability in alimony awards in Maryland is getting some press!

Last week, while I was knee-deep in paper (literally) getting ready for trial, I got a call from a young woman at The Daily Record, asking for my opinion on alimony guidelines. I was swamped and overwhelmed, but Ms. Tamber and I talked for a few minutes about the mess that constitutes alimony awards in Maryland and the idea for a guidelines program being promoted by the Women’s Law Center. I hung up and went back to work, completely forgetting about the call.

Until tonight when one of my colleagues at a meeting said he’d seen the article in which my comments were featured! Sure enough, he was right!

Here’s the link: Alimony Computer Program Provides Predictability. Unfortunately, the program doesn’t work on a Mac, which is what I mostly use in my office, but I’ll fire up the old PC tomorrow, give the program a go, and report this weekend.

Early in my legal education, I had what was a rare experience, that is now becoming common in law offices around the country: men are getting alimony. Men and Alimony. Men ARE often reluctant to ask for alimony. Too many are still stuck in the old paradigm of breadwinner/homemaker and feel ashamed to do so. But the tide is turning and more and more often, the ones who ask for it are winning their claims for spousal support. What is especially interesting is the way women tend to react. Fury. Outrage. So how come it’s okay for a woman to go out and make a success of herself, but it’s not okay for the law to apply equally to her when the husband has been keeping the home fires burning? Or for an older man, with limited prospects of supporting himself to be able to rely on the failed partnership for support?

I was in law school, working as a clerk for the man who later became my co-counsel. He’d stopped doing divorces years ago, but when a former client walked in and asked him to help with a divorce, Joe agreed. Being a terrific teacher, he gave me much of the work on the case, and spent significant time with me, reviewing what I was doing and talking at length about why I wanted to do it. This case became an inspiration for my later focus on fathers and husbands. When it came time to draft the pleading, we talked about alimony.

The client was a good deal older than his wife. No kids, not a lot of property. He was recently retired and disabled. He’d never really work again. His wife had gotten an advanced degree a few years before the split, had a great job with a big corporation. She’d been planning to dump the old guy for awhile before she left, that much was clear from the paperwork. So we asked for alimony. The client was reluctant, but we persuaded him. The reaction we got from the wife was stunning. She was infuriated.

The old paradigm was one in which the breadwinner husband went out and made a success in the world while wife stayed home and took care of the family. Once he’d made it, he found a younger model, or not, and divorced wife number 1 with the attitude that she should just go away and not bother him anymore. Now, more and more often, it’s the other way ’round.

A comment about this paradigm. The whole assumption needs to go. Ours is no longer a world where either spouse can afford to expect to take on all of one role or all of another. Those roles, and the tasks that make them up, shift and change and require conscious participation by both parties. Ideally, folks should figure all this out long before they marry. Hopefully, with a long bout of pre-marital counseling that helps them identify the roles and tasks, and consciously decide in advance how they will meet the challenges as they come up. But since most folks don’t do that, if there’s a family history that supports alimony for either spouse, the law provides an avenue for either one to get it.

This final of three posts about alimony in Maryland, I’m explaining old style alimony . . . the kind that goes on almost forever. We call it “indefinite alimony.” Some states make no allowances for alimony that goes on without an end in sight. Should it exist at all? The law in Maryland is that if a spouse can’t become self-supporting because of his or her age or if the spouse is ill or disabled OR (and here’s the kicker!) if the “respective standards of living” will be “unconscionably disparate” even after the spouse has made as much progress as they can to becoming self- sufficient, the court can award indefinite alimony.

That’s enough to scare anybody! Especially when the judge has absolute discretion (subject only to abusing it) to make the award. Before making an award, the judge has to “consider” the following:

o ability to be wholly or partly self-supporting;
o time needed for the spouse to get the training or education needed to be self-supporting;
o standard of living established during marriage;
o duration of the marriage;
o monetary and non-monetary contributions made by both spouses during the marriage (more on this later);
o the reason for the divorce (more on this later as well);
o age of each spouse;
o physical and mental condition of each spouse;
o ability of the person who has to pay to do that and meet his or her own needs;
o an agreement (even a pre-nup!!! — everyone should have one) between the spouses;
o financial needs and resources of both spouses; and
o whether paying alimony would cause a spouse who lives in a nursing home to need medical assistance sooner than would otherwise be the case.

But that’s it. If the judge talks about it, if he or she goes down the list on the record, he or she is virtually free to make the award based on the “weight of the evidence.” And no matter how well a lawyer makes or defends a case, there is no way to predict the value a judge will assign to any of these factors.

It seems draconian if you are the paying spouse, but I have to say if you are the receiving spouse, and you are sick or old or disabled, and IF the law is applied equally to husbands and wives, it probably needs to be available. A couple of tweaks would make the law more predictable and fair. First, a formula or set of mandatory guidelines and second, a way to assign a value for each of the factors the judge has to consider. Say, a total score of X points, with each factor having a possible X number of points. Make the judge tell everyone how many points he or she is giving for each factor. Less wiggle room for emotional decision-making, seems to me.

In Maryland and in many other states, an award of alimony after a final divorce is based on a list of factors. Most states, like Maryland, have a statutory scheme that, in theory at least, is designed to make the economically dependent spouse “self-supporting.” The importance of each factor, and the award of alimony itself is usually left to the trial judge.

The real problem is that few statutory schemes take into account the reasons why one party is “economically dependent.” Even fewer consider when and how a spouse might have become a contributing partner in a marriage.

In many families, it is women who give up career and/or educational opportunities to stay home and care for children. Often, the husband supports this arrangement, who agrees to give up his time with his children in order to allow the mother to stay at home.

Usually, the “stay at home parent” is a woman, but on occasion it is a man. This parent automatically gains a tactical advantage in that she (or he) becomes the “primary caretaker” of the child(ren) and is more likely to receive an award of custody and child support.

So when does the need of children for a stay at home parent turn into manipulation by the stay at home parent? When does the child’s need for the parent stop and the parent’s need to avoid responsibility as a partner in a marriage start? How should a court decide when the child’s “need” to go to ballet, martial arts, soccer, theatre and music classes is really the parent’s “need” to duck out of the obligations of an adult member of that economic partnership known as “marriage?” This is often what an award of alimony is based, no matter what the statutes or case law say.

The stay-at-home parent/partner says, “I gave up my opportunity to go out and get a degree, a career, an economically lucrative job so SOMEONE could stay home with the children.” The other partner says, “Wait a minute! I WANTED to spend more time with the kids . . . and with you . . . but no, you had to have a bigger house, more cars, more stuff, so I did what you wanted me to do. I worked longer hours, harder, traveled more, and got better raises, and now you want me to pay you for what I lost?”

Who is right? How do you prove a negative? It’s easy to prove who stayed home and who went to work, but how do you prove why they did what they did? That’s the issue many judges face when they hear an alimony case. Most alimony laws focus on the future: How likely is it the economically dependent spouse will become self-supporting? How likely is it that the economically superior spouse will be able to keep on paying? Only in the final stages of the analysis does the judge ask the question, “And why should he (or she) pay you for being lazy?

On the other hand, if alimony is abolished entirely, men as well as women can suffer. I’ll never forget one of my first cases where I claimed alimony for the husband. He was older, sicker, and far less likely to ever be able to be “self-supporting” (maybe as a minimum wage clerk), while the wife was younger, had attained advanced education during the marriage, and had other resources the husband would never have. If alimony had been abolished, I could never have made the claim.

Some states have adopted formulae known as “guidelines” that give lawyers and judges a formula for alimony, something like child support. But Maryland is not one of those states. Even where guidelines are used for child support, there can be a lot of variations and inequity. Maryland uses a formula known as the child support guidelines to decide child support, but the strict formula of income shares often penalizes low- to moderate income parents and allows very high income parents to escape responsibility. If this is true with child support, it would probably be true for alimony.

What is the solution?

Many of my colleagues believe it possible to legislate everything connected with human behavior. They think if legislatures could only draft a perfect definition for every legal term, and then craft a set of rules that encompasses all the legal rules and exceptions governing a single area of human behavior, we might have a better world. To which I say, “Nice idea, Dorothy, but we’re not in Kansas anymore.”

We pay judges our state funds and the respect and prestige they deserve because they make hard choices about human behavior, not human laws. The solution is to craft alimony statutes with as many internal protections as possible against abuse or manipulation, and leave it to the judges to decide if a spouse has a genuine need for spousal support.

Maryland, like many other states, has changed the books on alimony . . . formally at least. What it is supposed to be now is a means to help a spouse who needs the help get on their feet and take care of her (or him) self. That’s the idea, anyway. A Maryland court gives what they call “rehabilitative (or statutory)” alimony based on a list of several factors. It’s up to the judge to explain why he or she is giving alimony and use the list in the statute explain why he or she made the decision.

The problem is, the law doesn’t take into account the reason why one spouse is “economically dependent.” For example, in many families, it is women who don’t go after a career and/or education to stay home and take care of the children. But why do they stay home? And when is enough, enough. What happens when the kids are in middle school, or high school, and mom (or dad) is STILL a “stay at home” parent? For awhile, the working parent (usually dad) agrees. But what is he (or she) giving up? Time with the children in order to allow the other parent to stay at home. How much is that sacrifice worth? And how does a court know if it was a real sacrifice or an easy way out?

The parent who stays home almost always gains a tactical advantage in both alimony and custody because she (or he) has become the “primary caretaker” of the child(ren) and is more likely to receive an award of custody and child support than the other.

So when does this need of the child turn into a manipulation by a parent? When does the child’s need for the parent stop and the parent’s need to avoid responsibility as a partner in a marriage start? How to decide when the child’s “need” to go to ballet, martial arts, soccer, theatre and music classes is really the parent’s “need” to duck out of the obligations of an adult member of that economic partnership known as “marriage?”

Because this is often what an award of alimony turns on. The stay-at-home parent/partner says, “I gave up my opportunity to go out and get a degree, a career, an economically lucrative job so SOMEONE could stay home with the children.” The other partner says, “Wait a minute! I WANTED to spend more time with the kids . . . and with you . . . but no, you had to have a bigger house, more cars, more stuff, so I did what you wanted me to do. I worked longer hours, harder, traveled more, and got better raises, and now you want me to pay you for what I lost?”

Who is right? How do you prove a negative? It’s easy to prove who stayed home and who went to work, but how do you prove why they did what they did? That’s the issue many judges face when they hear an alimony case. Most alimony laws focus on the future: How likely is it the economically dependent spouse will become self-supporting? How likely is it that the economically superior spouse will be able to keep on paying?

Unfortunately, judges don’t often ask the question, “And why should he (or she)?

In Maryland, the first kind of alimony you need to know about is temporary, or pendente lite, alimony (‘pendente lite’ means “during litigation”). This is a very big deal because if your wife has been at home and you’ve been paying all the bills, you may be ordered to pay alimony until there’s a final decision in your divorce. The court would consider two things:

• Need (loosely translated, this means how much does it cost to pay the normal expenses of your household and who is contributing to those expenses);

AND

• Ability to pay (this means how much can you manage to pay and still live on your own).

The final number depends on a lot of factors, but the prospect of paying can be pretty discouraging to a husband and father who agreed it was best to let his wife stay home to take care of the children, especially when the divorce is not his idea. The downside of temporary alimony is that even though it technically is not supposed to predict permanent alimony, it often plays a part. The good news is that if you are ordered to pay alimony, the amount you have to pay goes into the child support calculation and can usually be used to lighten your tax load, although you should always consult a tax professional (unless your lawyer is a CPA or a tax attorney, not even he or she can answer tax questions) to be sure.

The problem is, you don’t want what was the status quo when there was only one household to become the norm when there are two. The judge decides the question, and his or her decision is always hard to predict.

The risk factor of litigation and an unpredictable decision by a judge is one reason people often opt to work out their differences by a negotiated settlement. More about alimony in Maryland at the time of a final divorce in the next post.

“How much do I have to pay?”

That’s the question I hear over and over when a husband and father talks to me about spousal support, or alimony.

Maryland has three basic kinds of alimony, or spousal support

• temporary (or, “pendente lite,” a complicated word that just means “during litigation”);
• rehabilitative (or statutory); or
• permanent

Over the next few weeks, I’ll be posting a series about each one, as well as some philosophical meandering about why we have such a thing and whether it can apply to you, as husband and father.

Unfortunately, the one thing you won’t find in any of my posts is an answer to the question, “How much!!??”

The reason for that is that Maryland does not have any standard formula for setting an amount of alimony. Not for any of the three types. Some states have a formula for figuring out how much alimony has to be paid, but Maryland is not one of them.

The fact is, the amount you have to pay (or get) can be as different as the judge who hears your case and the quality of the lawyer who represents you. Because of that, the answer I always give clients who ask the question, “How much?” is, “I don’t know.”

Come back often in the next few weeks to learn more about how Maryland law deals with alimony.