AN OVERVIEW OF THE RULES IN THE USA REGARDING THE AWARD OF POST-DIVORCE SPOUSAL SUPPORT IN 2019.

• Author: Oldham, J. Thomas

1. INTRODUCTION II. RULES FOR THE AWARD OF SPOUSAL SUPPORT IN THE USA A. Entitlement 1. Majority Rule 2. Minority Rule B. The Amount of Spousal Support 1. The Majority View 2. The Minority View C. The Duration of the Spousal Support Award 1. Majority View 2. Minority Rule 3. The Effect of the Retirement of the Obligor D. The Ambiguous Standards Being Utilized to Award Spousal Support in the U.S. Today E. Spousal Support Guidelines in the U.S 1. Determining the Amount of the Award Under Guidelines 2. Determining the Award Duration Under Guidelines 3. Determining Entitlement to Support Under the Guidelines III. CONCLUSION I. INTRODUCTION

   It is difficult for a few reasons to attempt to describe the "rules in the U. S. regarding the award of post-divorce spousal support." First, the award of spousal support is governed by state law. So, while the applicable state statutes have some similarities, each statute is somewhat different. (In a recent study I conducted, I concluded that different states are implementing very different policies regarding the award of spousal support.) (1) Second, as will be discussed below, in many states a judge has a great deal of discretion regarding the award of spousal support, so as a result, the standards for the award of support are not consistent even in the same state. Any attempt to summarize the rules in the U. S. that currently apply to the award of spousal support, therefore, will inevitably be somewhat imprecise.

   In any event, I will try to summarize below what I believe to be the current "majority view" in the U. S. regarding the award of spousal support. When there are obviously contrasting minority approaches, I will mention them.

   In the U.S., there are a number of different types of spousal support. "Reimbursement" spousal support is awarded to compensate a spouse for supporting the other while he or she obtained an education. (2) "Rehabilitative" support is awarded in order for the claimant spouse to obtain education or training after divorce. (3) "Durational" or "indefinite-duration" support is awarded to a spouse who needs support after divorce. (4) This article will not discuss reimbursement support or rehabilitative support.

2. RULES FOR THE AWARD OF SPOUSAL SUPPORT IN THE USA

   A. Entitlement

   1. Majority Rule

      In most states divorce courts are instructed, when making a determination whether to award spousal support, to consider numerous factors. (5) Common factors include, for example, the duration of the marriage, the parties' health, ages, needs, debts, and earning capacities. (6) Some factors allow the court to consider the parties' relative fault in ending the marriage. (7) In a few states, the claimant spouse is barred from receiving spousal support if the claimant spouse is found to be at fault. (8) After considering these enumerated factors, the court is directed to award spousal support if the court concludes that such an award would be appropriate.

      When determining whether the award would be appropriate, in many states the court is instructed to consider whether, among other factors, after considering the claimant spouse's earning capacity and all property awarded to the spouse in the divorce, the claimant spouse will not be able to satisfy his or her "reasonable needs." (9) Under the majority view, the spouse's "reasonable needs" are determined based upon the standard of living of the couple during the marriage. (10) (While Ira Ellman valiantly devoted much of his career attempting to convince judges that a decision regarding entitlement to support should focus on the claimant's losses and not need, (11) U.S. judges still seem to focus on the "need" of the claimant spouse.) So, under the majority view, a claimant can qualify for support even if he or she has a significant income. (12) Spousal support awards could be quite large under this approach if the standard of living during the marriage was high. (13) An award is possible only to the extent that the obligor spouse can afford to pay. (14)

      Under the majority approach, a claimant does not always receive substantial spousal support, even if it is proved that, after divorce, he or she cannot otherwise maintain the standard of living during the marriage. For example, in a California case, a young female dental hygienist married an older wealthy man. (15) When they divorced four years later, the female made a claim for substantial spousal support, based on the argument that she could not otherwise maintain the standard of living during the marriage. (16) The appellate court affirmed a minimal award of support by the trial court ($5000 per month for six months), emphasizing that the "standard of living during marriage" factor was more important in divorces involving long-duration marriages. (17)

      Similarly, a Utah state law provides that, in a marriage of "short duration" with no minor children, when considering an alimony award the court should attempt to restore the parties to their economic circumstances when they married. (18) A Maine statute provides that there is a rebuttable presumption that spousal support should not be awarded if the parties were not married for at least ten years. (19) So, in many states, the issue of entitlement to spousal support is significantly impacted by the duration of the marriage.

      It appears that spousal support is awarded in 10-20% of all divorces in the U.S. (20) Half of all divorcing couples in the U.S. have been married for seven years or less. (21) As described above, spousal support presumably is awarded rarely in such divorces.

      Of those divorcing couples who were married for longer than seven years, a significant percentage both have relatively low incomes, and neither can afford to pay support. (22) Professor Garrison found that the award of spousal support was most likely when the marriage duration was "long" and the claimant did not work outside the home during the marriage. (23) Professor McMullen has argued that a significant number of women who might be eligible for support do not make a claim for support, due to feelings of guilt or shame. (24)

   2. Minority Rule

      It was mentioned above that, in many states dealing with marriages of significant duration, one important consideration is whether, after divorce, the claimant spouse will be able to maintain the standard of living enjoyed during the marriage. In Texas, the claimant spouse needs to establish, among other things, that he or she will not be able to satisfy his or her "minimum reasonable needs." This phrase generally has been construed to mean basic living expenses, not necessarily the expenses need to maintain the standard of living during the marriage. So, to receive spousal support, the claimant spouse in Texas must show a more pressing need for support than in many other states. In addition, spousal support cannot be awarded in Texas if the marriage did not last ten years, unless (i) the obligor spouse was guilty of family violence or (ii) the claimant is disabled or caring for a disabled child. (25)

      B. The Amount of Spousal Support

   1. The Majority View

      In many states, in marriages other than those of short duration, an important issue is whether the claimant spouse will be able to meet his or her reasonable needs (in Texas, his or her "minimum reasonable needs") without support. The claimant spouse frequently is asked to submit to the court a budget of what the claimant believes to be reasonable expenses, which the obligor spouse frequently challenges as inflated. (26) The court will then determine what expenses are reasonable--as well as the amount, if any, that the obligor spouse must contribute toward the claimant's expenses after divorce.

      Under the majority approach, the claimant does not have a right to a certain portion of the obligor's post-divorce income. The spousal support claim is based on whether the claimant spouse "needs" the support.

      In a recent Iowa case, the parties divorced after 28 years of marriage, when two of the parties' children were younger than 18. The wife had not worked outside the home since the spouses began to have children. The husband's annual income exceeded $1,000,000 (more than $80,000 per month). The court found that the wife could earn $25,000 annually working outside the home. The Iowa...