Is alimony fair or needed?
There are plenty of articles on the internet that talk about the origins of alimony. In a nutshell, alimony was needed because women were simply unable to provide for themselves back in the days. The market has changed with time and women no longer need man in order to support themselves. Now days, like man, women can choose to be a full-time caretaker (if financially able), to have a career, or to be somewhat in the middle. As a matter of fact, women outnumber men in college today.
Man have also changed. Now days, it is quite common, and even expected, that man be deeply involved in the raising of children. Stay at home dads are now a reality of many families.
With this new reality of women being able to choose their path, debates on the relevancy, usefulness, and fairness of alimony have become a hot topic, especially for those going through a divorce. Divorce and alimony are highly emotional subjects and, as such, it is easy to loose sight of one of the most fundamental questions that should be clear to every law maker: What is the goal or purpose of alimony in today's word?
Note: In this post I'm using the term woman and man in the more traditional term where the woman was the caretaker and the man was the provider, but I think we all understand that, now days, these two roles can be reversed.
The Argument in Pro of Alimony
Most groups in favor of alimony tend to justify alimony in terms of fairness:
"The woman sacrificed her career in order to take care of her family, while the man climbed the corporate latter and advanced his career."
"After so many years of service to the family, it's not fair for the woman to have a lower standard of living than the man."
These groups also tend to emphasize the value of this service to the family:
"Caring for and raising the children is the most important work that anyone could do."
Adding some broader social issues that have nothing to do with divorce helps to further strengthen the argument:
"There is an income gap between man and woman that is not fair."
The Argument Against Alimony
The woman can choose to become or not become a parent.
If she chooses to become a parent, with appropriate planning (e.g., choosing a partner with similar goals), she can choose to be a full-time stay at home caretaker, to work part-time, or to be a full-time worker. In these three scenarios, the caretaker responsibly is shared accordingly with the husband. The caretaker role is not mandated or exclusive to woman. It can be shared, changed, and/or replaced.
It's not an "all or nothing" deal. Caring for the children doesn't have to be until Bob turns 21. If divorce is always a possibility, why not go back to school when the children start going to school?
Working outside to provide for the family, whether in construction or in the corporate world, is usually no walk in the park. Only those facing their daily duties and pressures know the size of their burden and sacrifices.
Many man who work full-time are still deeply involved in the caring of the children. In my case, for example, my wife didn't work. However, I drove my children to school every day, participated in every school event, and cared for them between 5:30 PM, when I got home, until their bed time. In the weekends, their were my responsibly.
In my case, I would have given anything to be able to stay at home and be with my children 100% of the time. However, one of us had to work, so I made that sacrifice. Personally, I consider the option of being able to stay at home with the children an amazing privilege.
As much as the woman wasn't able to work, she also enjoyed the benefits of the man's work. She was provided with food, shelter, clothing, transportation, vacations, etc. Any assets accumulated by the couple belonged to both.
Pro-alimony arguments work under the presumption that sacrifice can be measured by a judge. Does staying at home automatically mean that a person sacrificed and worked harder than the provider? I don't think so... Unless the judge has lived with the family in the same house for the last several years, there is no way to know how dedicated, how hard working, or how committed each parent has been. There are plenty of cases where the provider takes it easy, as there are cases where the stay at home parent takes it easy.
Most pro-alimony arguments also tend to remove personal responsibility and accountability from the individual. If a marriage doesn't work for whatever reason, and there can be quite a number of reasons for that to happen, somehow the provider is responsible for the caretaker's choices. Unfortunately though, the possibility of alimony can often serve as a demotivator for woman to take responsibility for their financial security.
Alimony also comes at a great cost: It provides a financial incentive for divorcing couples to litigate. See this article on "the real cost of alimony".
Another factor is that the current law makes the family court system very expensive, inconsistent, and unpredictable. See this article on "the problem with the current Utah alimony system".
The Bottom Line
Just like man, woman have free will on what choices to make.
No one should be responsible or accountable for another adult's decisions in life.
Taking care of the children certainly is an honorable job, but it doesn't have to be the woman's job. If divorce is ever a possibility, and statistics show that it certainly is, then it's both parent's responsibility to plan accordingly and plan their financial security.
It is absolutely impossible for anyone, specially for a judge, to measure who made the greater sacrifice.
The current alimony law promotes litigation, which diminishes the possibility of a healthy and supportive co-parenting relationship.
So are you saying that there should be no alimony at all?
There are different approaches to alimony in the world. I think that Utah's approach is still too unfair and places too much burden on the provider. Let's look at some different approaches that make more sense to me.
Scandinavia: Each spouse is individually responsible for his or her own financial support after divorce. Maintenance is seldom granted except in certain circumstances. When granted, it's usually for 6 months. Divorce is a simple matter that can be handled by mail.
Indiana: The court can award rehabilitative maintenance for up to three years, if appropriate. Indefinite alimony can only be awarded in very unusual circumstances (e.g., an incapacitated spouse that is unable to work).
Brazil: Almost impossible to get alimony, unless there are some unusual circumstances.
Texas: Except where there is a conviction of family violence, the court will start by assuming that an order for spousal maintenance is not appropriate. To overcome the assumption, the spouse seeking support will need to convince the court that she or he clearly lacks ability in the work place and sufficient resources to provide for his/her minimal reasonable needs. A monthly support payment cannot be more than $5,000 or 20% of the paying spouse’s average gross monthly income, whichever is less.
What these places have in common is that they understand that once a marriage is over, each adult is responsible for their own lives. Temporary assistance is provided if needed, but just enough for the individual to get on their feet. People adapt to the new conditions and move on with their lives. It is ok for divorced individuals to live on different standards of living. On the other hand, the notion of dividing the income in order to "maintain the standard of living that the party is used to", or equalizing the incomes, is outdated and unfair. At the very least, in promotes a dependency based system where one individuals continues to feed off the other, while not being required to adapt to his/her new reality.
Note that the divorce rate in these places is not higher, debunking the myth that making divorce harder helps avoid divorce.
Also, couples are always allowed to enter into a private agreement for additional support during or before their marriage. For example, a couple can enter into an agreement stating that the wife will work while the husband goes to school, but that he will provide her with 4 years of alimony payment if they get divorced before she has the opportunity to complete her degree. These private agreements are flexible and can fit each unique situation. The current alimony law, on the other hand, is a one size fits all "solution" that provides alimony by default.
The Summary of How Alimony Should Work
It should be re-rehabilitative only with the goal of preventing someone from falling into poverty (basic needs).
It should be formula based to provide predictability and consistency. This, by itself, would eliminate most of the unnecessary litigation and all the animosity that comes with it.
It should automatically end at the social security retirement age.