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)?