Lex Familia has noticed a series of articles urging a re-evaluation of alimony laws. Complaints are made by both payors and recipients alike. The complaints vary depending upon who is making them. However, both sides complain that alimony awards are arbitrary and subjectively determined by judges relying on vague statutory considerations. We agree that alimony laws should be looked at critically. However, the first question to be asked is what exactly is alimony. What is its goal and purpose? Until we determine what alimony is designed to achieve, a meaningful and consistent legal policy cannot be developed.
In Illinois, alimony is called maintenance. By definition, maintenance suggests that its purpose is to support or maintain an economically dependent former spouse at the former marital standard of living. But is this all there is to the concept? Many issues of public policy need to be explored in order to determine a cogent and fair policy on this subject.
For example, the American Law Institute in it’s “Principles of the Law of Family Dissolution” published in 2001 recommends calling alimony “compensatory spousal payments,” as a more appropriate definition of the nature of the payment. Specific guidelines and presumptions are suggested by the ALI to enhance predictability and consistency in awards. Therefore, under the ALI’s approach, alimony is not merely considered a form of “divorce welfare.” It also serves as a payment to recognize lost economic opportunities by a spouse due to his or her contributions to the family as a homemaker or caretaker. With that in mind, should maintenance automatically terminate upon the recipient’s remarriage? Does the right to compensation for lost opportunities automatically disappear as a result of a re-marriage?
Further policy issues need to be explored. With the advent of no-fault divorce in the 1970’s, consideration of conduct is frequently prohibited in deciding any divorce-related issues. Illinois specifically prohibits considerations of fault in determining maintenance issues. However, should there be a blanket prohibition against considerations of fault in deciding maintenance? One can think of several occasions where fault may be a legitimate consideration. For example, should a spouse who conducts a notorious public extramarital affair receive the same amount of alimony as a spouse not otherwise misbehaving? Should we as a society draft legislation designed to punish people who engage in behavior that harms the family? Again, this policy should be explored.
Maintenance, at least in Illinois, is highly dependent upon the subjective discretion of trial judges. Case law sets no firm policy and is too fact-dependent to be of much help. One judge may automatically deny maintenance for any marriage under ten years, while another may allow it, but only for five years after the divorce has been finalized. Should we employ guidelines, like we do with child support, to limit some of the randomness of rulings? The American Academy of Matrimonial Lawyers, as well as several states, have formulated guidelines to ensure more consistent awards. Should legislatures set policy by adopting guidelines? Or, do we prefer giving more latitude to judges who are intimate with the facts of the particular case?
It has been thirty years since Illinois has had a comprehensive review of its family law. Maintenance in particular has significantly evolved during that time. This topic needs to be reviewed with fresh eyes. But, in order to do so, a meaningful dialogue needs to start regarding the purpose and goals of any maintenance statute. What is alimony? Only when that question is answered, can we craft legislation that fairly addresses this important family law issue.
Peskind Family Law Insights 