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.